MARCH2000

COMMISSION DECISIONS AND ORDERS
03-03-2000 Cyprus Emerald Resources Corporation
03-08-2000 Bauman Landscape, Inc.
03-08-2000 Molloy Mining, Inc.
03-16-2000 Sec. Labor on behalf of Leonard Bernardyn v.
Reading Anthracite Company
03-16-2000 Excel Mining LLC
03-17-2000 Sec. Labor on behalf of Curtis Stahl v.
A & K Earth Movers, Inc.
03-27-2000 Consolidation Coal Company
03-27-2000 Consolidation Coal Company
03-28-2000 Contractors Sand & Gravel, Inc.

PENN 94-23
WEST 2000-93-M
WEVA 99-111

Pg. 285
Pg.289
Pg. 292

PENN 99-129-D
KENT 99-171-R

Pg.298
Pg.318

WEST 2000-145-DM
WEVA 98-111
WEVA 93-77-R
EAJ 96-3

Pg.323
Pg.328
Pg.340
Pg.367

WEST 99-314-M

Pg. 371

KENT 2000-88-D
VA 99-8-M

Pg. 375
Pg.378

WEVA 2000-40-D
SE 99-6-R

Pg.393
Pg.402

KENT 99-248-D
WEST 99-152-M
WEVA97-95

Pg.404
Pg.412
Pg.415

WEST 99-169-DM
KENT 99-193
LAKE 98-80-M
WEVA 98-148

Pg.419
Pg.441
Pg.451
Pg. 455

KENT 95-272

Pg. 473

ADMINISTRATNE LAW JUDGE DECISIONS
03-07-2000 Montgomery Construction
03-10-2000 Sec. Labor on behalf of Raymond Ramon v.
Eagle Coal Company, Inc.
03-03-2000 Virginia Slate Company
03-10-2000 Sec. Labor on behalf of Gary Dean Munson v.
Eastern Associated Coal Corp.
03-15-2000 Jim Walter Resources Inc.
03-17-2000 Sec. Labor on behalf of Grant Noe, Jr., v.
J & C Mining & Manalapan Mining Co.
03-20-2000 Molalla Redi-Mix & Rock Products
03-24-2000 Windsor Coal Company
03-27-2000 Sec. Labor on behalf of Mark L. Pollock v.
Kennecott Barney's Canyon Mining Co.
03-30-2000 Dotson Trucking Company, Inc.
03-30-2000 Tow Brothers Construction Inc.
03-31-2000 Consolidation Coal Company
ADM1NISTRATNE LAW JUPGE ORDERS
03-07-2000 Kyber Coal Company

i

MARCH 2000

Review was granted in the following cases during the month of March:
Secretary of Labor, MSHA v. Consolidation Coal Company, Docket No. WEVA 98-37.
(Judge Feldman, January 28, 2000)
Secretary of Labor, MSHA, on behalf of Curtis Stahl v. A & K Earth Movers, Inc.,
Docket No. WEST 2000-145-DM. (Judge Hodgdon, February 18, 2000)

Review was denied in the following cases durim~ the month of March:
Secretary of Labor, MSHA v. Northwestern Resources Company, Docket No. CENT 99-266.
(Interlocutory Review of former Chief Judge Merlin's December 16, 1999 Order accepting the
Secretary's Penalty Petition - unpublished)
Secretary of Labor, MSHA on behalf of Gary Dean Munson v. Eastern Associated Coal
Corporation, Docket No. WEV A 2000-40-D. {Judge Zielinski, M.arch 10, 2000)
GaryD. Morgan v. Arch of Illinois, Docket No. LAKE 98-17-D. (Judge Weisberger,
February 15, 2000)

ii

COMMISSION DECISIONS AND ORDERS

•.

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

March 3, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
v.

Docket Nos. PENN 94-23
PENN94- 166

CYPRUS EMERALD RESOURCES
CORPORATION

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORDER
BY THE COMMISSION:
In this civil penalty proceeding, arising under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"), Cyprus Emerald Resources
Corporation ("Emerald") challenged the "significant and substantial" ("S&S") 1 designation of a
citation alleging a violation of 30 C.F.R. § 50.l l(b), which requires an operator to investigate any
mine accident. Among other grounds, Emerald argued that because section 50.11 (b) is not a
mandatory health or safety regulation, it could not be designated S&S, because the Mine Act
refers to S&S violations only of mandatory health or safety standards. See 30 U.S.C.
§ 814(d)(l), (~).
Administrative Law Judge William Fauver rejected that argument, stating:
[T]he citation was issued under§ 104(a), not 104(d). An allegation
of a "significant and substantial" violation in a§ 104(a) citation is
an allegation of gravity, not an assertion ofjurisdiction to apply the
sanctions of§ 104(d). Accordingly, I do not reach the issue
whether the sanctions of§ 104(d) apply to a violation of Part 50.
17 FMSHRC 2086, 2099 (Nov. 1995) (ALJ). The judge found that, with respect to the accident
at issue, continuing operations without investigating the accident could contribute significantly
and substantially to another accident with a risk of serious injury, and that such an accident had

1

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C. §
8 14(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a ... mine safety or health hazard."
285

occurred in case. Id. Finding that the violation was also due to Emerald's high negligence, and
stating that he had taken into account all of the civil penalty criteria set forth in section 11 O(i) of
the Act, 30 U.S.C. § 820(i), the judge assessed a penalty of $3,000. Id. at 2099-2100.
On review of the judge's decision, the Commission, at the request of the parties, reached
the issue that the judge did not. 20 FMSHRC 790, 801 (Aug. 1998). After affirming the judge's
finding of a violation of section 50.l l(b), a Commission majority held that violations ofnonmandatory health or safety standards could be designated as S&S under sections 104(d) and
104(e) of the Act. Id. at 798-809 (Chairman Jordan and Commissioner Beatty), 822
(Commissioner Marks). That Commission majority also affirmed the judge's finding that
Emerald's violation of section 50.1 l(b) was S&S. Id. at 810, 822. Commissioners Riley and
Verheggen, in dissent, held that under the plain meaning of the Mine Act, only violations of
mandatory health and safety standards could be designated a.s S&S. Id. at 826-30.
Emerald subsequently petitioned the United States Court of Appeals for the District of
Columbia Circuit for review of this issue. The court held "that a 'significant and substantial'
finding is permissible in a citation charging a violation of a mandatory health and safety standard
only[.)" Cyprus Emerald Resources Corp. v. FMSHRC, 195 F.3d 42, 44 (D.C. Cir. 1999).
Accordingly, the court granted Emerald's petition, reversed the Commission's S&S
determination, and remanded the case to the Commission for further action. Id. at 46.
Pursuant to the court's order, we modify Citation No. 3658696 to delete the S&S
designation. We otherwise affirm the citation and remand to the Chief Judge for reassignment
and assessment of an appropriate penalty based upon consideration of, and findings regarding, all
of the criteria in section 11 O(i) of the Act.

~C.
James c. Riley, Commissioner

...

·~

Theodore F. Verheggen, Com
:;·

--:;;F:- / J <. I

-1

~I

Robert H. Beatty, Jr., Commissi\?ner

286

Chairman-Jordan ahd Commissioner Marks, dissenting:
We would modify the citation to delete the S&S designation, but would otherwise affirm
the citation and the judge's $3000 penalty assessment. While the court held that the violation at
issue could not be designated S&S under the terms of the Mine Act, the factual findings that
underlay the judge's S&S determination were not disturbed, and were viewed by all
Commissioners as sufficient support for the judge's finding on the gravity of the violation. See
20 FMSHRC at 810 (opinion of Chairman Jordan and Commissioner Beatty), 822 (concurring
opinion of Commissioner Marks), 829-30 (opinion of Commissioners Riley and Verheggen,
dissenting on other grounds). Previously, the Commission has held that a penalty need not
necessarily be reduced when a special finding is vacated. See Mechanicsville Concrete, Inc., 18
FMSHRC 877, 881-82 (June 1996) (vacating judge's S&S determination as beyond his authority,
but nevertheless affirming penalty based in part on high gravity finding as supported by
substantial evidence); Austin Powder Co., 21FMSHRC18, 21 (Jan. 1999) (decision vacating
judge's unwarrantable failure determination as beyond his authority does not necessarily require
judge to find on remand lower level of negligence or to reduce his earlier penalty assessment). In
these circumstances, therefore, there is no need to remand for a reassessment of the penalty, and
therefore, we respectfully dissent.

Marc Lincoln Marks, Commissioner

287

Distribution
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203 .

i

R. Henry Moore, Esq.
Buchanan Ingersoll
One Oxford Centre
301 Grant St., 201h Floor
Pittsburgh, PA 15219-1410
Chief Administrative Law Judge David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

-·

<.

288

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

March 8, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION .(MSHA)

v.

Docket No. WEST 2000-93-M
A.C. No. 04-05247-05508 A

BAUMAN LANDSCAPE, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORDER
BY: Jordan, Chairman; Riley and Beatty, Commissioners
This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (1994) ("Mine Act"). On December 27, 1999, the Commission received from
Bauman Landscape a request to reopen a penalty assessment that had become a final order of the
Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). The Secretary of
Labor does not oppose the motion for relief filed by Bauman Landscape.
Under section 105(a) of the Mine Act, 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, the proposed
·
penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).
In his request, Michael Bauman, an owner of Bauman Landscape, asserts that he did not
receive a copy of the original proposed penalty assessment. Mot. Bauman states that he was not
aware of the proposed penalties.and thus, never had an opportunity to appeal them. Id. Bauman
claims that the U.S. Postal return receipt was not signed by him. Id. He asserts that he already
has paid penalties for the same violations giving rise to the subject penalties. Id. Bauman
requests an opportunity for a hearing to appeal these penalty assessments. Id.

We have held that, in appropriate circumstances and pursuant to Fed. R. Civ. P. 60(b), we
possess jurisdiction to reopen uncontested assessments that have become final by operation of
section 105(a). See, e.g., Harvey Trucking, 21 FMSHRC 567 (June 1999) (remanding to a judge
where the operator did not receive the proposed penalty assessment because delivery was
unsuccessful for no known reason); Gary Klinefelter, 19 FMSHRC 827, 828 (May 1997)

289

(remanding the matter to a judge where delivery of the proposed assessment was unsuccessful
and movant offered no explanation for unsuccessful delivery); Waste Coal Management, Inc., 14
FMSHRC 423, 423-24 (Mar. 1992) (remanding where default order sent by certified mail may
not have been received by operator). We have also observed that default is a harsh remedy and
that, if the defaulting party can make a showing of adequate or good cause for the failure to
timely respond, the case may be reopened and appropriate proceedings on the merits permitted.
See Coal Preparation Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). In accordance with
Rule 60(b)(l), we have.previously afforded a party relief from a final order of the Commission
on the basis of inadvertence or mistake. See National Lime & Stone, Inc., 20 FMSHRC 923, 925
(Sept. 1998); Peabody Coal Co., 19 FMSHRC 1613, 1614-15 (Oct. 1997); Stillwater Mining
Co., 19 FMSHRC 1021, 1022-23 (June 1997); Kinross Delamar Mining Co., 18 FMSHRC
1590, 1591-92 (Sept. 1996).
On the basis of the present record, we are unable to evaluate the merits ofBauman's
position. 1 In the interest ofjustice, we remand the matter for assignment to a judge to determine
whether Bauman has met the criteria for relief under Rule 60(b). If the judge determines that
such relief is appropriate, this case shall proceed pursuant to the Mine Act and the Commission's
Procedural Rules, 29 C.F.R. Part 2700.

runes C. Riley, Commissioner

;;zA"")
Robert H. Beatty,

1

~

Jr~

In view of the fact that the Secretary does not oppose Bauman Landscape's motion to
reopen this matter for a hearing on the merits, Commissioners Marks and Verheggen conclude
that the motion :should be granted.

290

.··

Distribution
Michael P. Bauman
Bauman Landscape, Inc.
115 Brookside Drive
Richmond, CA 94801
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 David Barbour
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

291

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

March 8, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 99-111
A.C. No. 46-08330-03511

V.

MOLLOY MINING, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORDER
BY: Jordan, Chairman; Marks, Verheggen, and Beatty, Commissioners
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 September 29, 1999, Administrative Law
Judge Michael Zielinski issued a Decision Approving Settlement granting a settlement motion
filed by the Secretary of Labor which involved civil penalties for six citations issued to Molloy
Mining, Inc. ("Molloy Mining"). The Secretary now requests the Commission to modify the
judge's decision to correct certain clerical errors.
On April 7, 1999, the Secretary issued six citations - Citation Nos. 7179500 through
7179505 - to Molloy Mining, alleging various violations of mandatory safety standards. S.
(Second) Amended Mot. to Approve Settlement at 1 (Jan. 4, 2000). On July 22, 1999, the
Secretary filed a Petition for Assessment of Penalties for the six citations and proposed
assessments of $259 each, or a total assessment of$1,554. Id. at 6. Molloy Mining filed its
answer to the Commission on July 29, 1999, denying any violation and contesting the Secretary's
proposed penalties. Op. Answer to S. Petition for Assessment of Civil Penalty. On September
24, 1999, the Secretary filed a motion to approve a settlement agreement reached by the parties,
in which Molloy Mining agreed to pay a total of$1,066 for the six violations. S. Letter dated
Sept. 24, 1999. On September 27, the Secretary filed an amended motion to approve settlement
requesting correction of the settlement amount from $1,066 to $1,174. S. Letter dated Sept. 27,
1999. On September 29, the judge issued his decision approving the settlement and directing
Molloy Mining to pay $1,174. Unpublished Dec. dated Sept. 29, 1999. On January 4, 2000, the
Secretary filed a second amended motion to approve settlement, requesting correction of the
settlement amount back to the original total of$1,066. S. Letter dated Jan. 4, 2000. The
Secretary explained that the penalties associated with three citations - Citation Nos. 7179503,
292

:::

~·'

7179504, and 7179505 - were incorrectly set forth as $295 each, rather than $259, making the
correct total settlement amount $1,066; as originally provided in the Secretary's first motion. Id.
The judge responded to the Secretary's second amended motion with a letter stating that he no
longer had jurisdiction of the case because once he issued his decision on the matter, it became
final 40 days after its issuance. Letter from Judge Zielinski dated Jan. 10, 2000.
The judge's juris.diction over this case terminated when his decision approving settlement
was issued on September 29, 1999. 29 C.F.R. § 2700.69(b). 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). If the Commission does not direct review within 40 days of
a decision's issuance, it becomes a final decision of the Commission. 30 U.S.C. § 823(d)(l).
Molloy Mining's motion was received by the Commission on January 6, 2000, almost two
months after the judge's decision became final. Under these circumstances, we treat Molloy
Mining's motion as a late-filed petition for discretionary review requesting amendment of a final
Commission decision. See General Chemical Corp., 18 FMSHRC 704, 705 (May 1996).
A final Commission judgment or order may be reopened under Fed. R. Civ. P. 60(b)(l) &

(6) in circumstances such as mistake, inadvertence, excusable neglect, or other reasons justifying
relief. 29 C.F.R. § 2700.1 (b) (Federal Rules of Civil Procedure apply "so far as practicable" in
the absence of applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782
(May 1991). The Secretary erred in stating the penalty amount for three citations in her motion
to approve settlement, mistakenly listing the penalties associated with the citations as $295 each,
instead of the correct amount of $259, and setting forth an incorrect total settlement amount of
$1,174. The judge's decision approving that settlement agreement incorporates those clerical
errors. The Secretary requests that the settlement decision be amended to reflect the correct
penalty amount of $259 for each of the three citations and a total settlement of$1,066. Here, the
clerical errors incorporated in the judge's decision approving settlement amount to mistake under
Rule 60(b). ·

293

Accordingly, we reopen the final decision, and grant the Secretary's motion to correct the
clerical errors set forth in the judge's decision approving settlement.' See General Chemical
Corp., 18 FMSHRC at 705 (amending judge's dismissal order where the judge mistakenly left
out a citation in the caption and body of his order); Martin Marietta Aggregates, 16 FMSHRC
189, 190 (Feb. 1994) (amending judge's decision approving settlement to reflect correct penalty
amount agreed to by the parties). On this date, we separately issue an amended decision
approving settlement c<:msistent with this order.

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Co
...
·•·

Robert H. Beatty, Jr., Commissi

1

Commissioner Riley concludes that, because the judge committed no error in this
matter, this case should be remanded to the judge to allow him to correct the Secretary's clerical
error.
294

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

March 8, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADM1NISTRATION (MSHA)
Docket No. WEVA 99-111
A.C. No. 46-08330-03511

v.

MOLLOY MINING, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

AMENDED DECISION APPROVING SETTLEMENT

BY: Jordan, Chairman; Marks, Verheggen, and Beatty, Commissioners

The Secretary of Labor has filed an amended motion to approve settlement in this civil
penalty proct;eding. The motion is unopposed. The motion having been considered, and good
cause appeanng: ·

295

Wherefore, it is ordered that the Decision Approving Settlement issued September 29,
1999, be amended to reflect that the proposed penalty assessment for each of the six citations,
Citation Nos. 7179500 through 7179505, issued to Molloy Mining, Inc., is $259 and that the
parties agreed to settle Citation Nos. 7179503, 7179504, and 7179505 for $259 each, for a total
payment, by Molloy Mining, Inc., of$1,066. 1

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Co

1

In a separate order issued by the Commission on this date, Commissioner Riley
concluded that, because the judge committed no error, this case should be remanded to the judge
to allow him to.' correct the Secretary's clerical error.
296

Distribution
Vaughn R. Groves, Esq.
Pittston Legal Group
P.O. Box 7500
Lebanon, VA 24266
James P. Bowman
Conference & Litigation Representative
U.S. Department of Labor, MSHA
100 Bluestone Road
Mt. Hope, WV 25880
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Michael Zielinski
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

297

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

March 16, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of LEONARD BERNARDYN
Docket Nos. PENN 99-129-D
PENN 99-158-D

v.

READING ANTHRACITE COMPANY

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners

DECISION

BY: Riley, Verheggen, and Beatty, Commissioners
In this discrimination proceeding, Administrative Law Judge Avram Weisberger
concluded t;hat Reading Anthracite Company ("Reading") did not violate section 105(c) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1994) ("Mine Act" or "Act"),
when it discharged employee Leonard Bernardyn on November 10, 1998. 21FMSHRC819, 824
(July 1999) (ALJ). The Commission granted the Secretary's petition for discretionary review
challenging the judge's determination. For the reasons that follow, we vacate the judge's
determination and remand for further analysis.

298

I.

Factual and Procedural Background
Reading owns and operates Pit 33, a coal mine in Wadesville, Pennsylvania. T. Tr. 10. 1
Bemardyn worked for Reading for nineteen years, including working as a haulage truck driver at
the Wadesville mine for approximately four and a half to five years before his discharge. T. Tr.
10-11.
Between 7:00 and 7:10 a.m. on November 10, 1998, Bemardyn began driving his haulage
truck - a 190-ton Titan truck - on his usual route between the shovel in the pit and the dump
area. T. Tr. 11-12, 15-16, 83. Overall, the road has a grade of approximately 8%, and parts of it
are as steep as 10.3%. T. Tr. 82, 107. When Bemardyn began driving, the weather was foggy
and misty, and slippery road conditions caused Bemardyn to drive slower than usual. T. Tr. 1518, 47-48, 114.
When Frank Derrick, the general manager of Reading, observed a Titan truck driving
slowly, he called mine superintendent Stanley Wapinski to find out why. T. Tr. 83. Wapinski
stopped Bemardyn and asked him why he was driving so slowly, to which Bemardyn responded
the roads were getting slippery. T. Tr. 20-21. Wapinski told Bemardyn to drive faster. T. Tr.
20-21, 140-42. Approximately 20 minutes later, Derrick again noticed a Titan truck driving
slowly and asked Wapinski whether it was the same truck. T. Tr. 84-85, 143-44. When
Wapinski indicated that the truck was the same one and that Bemardyn was the driver, Derrick
told him to tell Bemardyn to park the truck. T. Tr. 86. Wapinski approached and talked with
Bemardyn at the pit and told him he was holding things up, and directed him to meet Wapinski at
the dump after his current run. T. Tr. 24-25, 143-44.
After the second conversation with Wapinski, Bemardyn used the CB radio in his truck to
call Thomas Dodds, the United Mine Workers of America ("UMWA") safety committeeman. T.
Tr. 29-30, 53. Dodds was driving a truck on the same shift as Bernardyn. T. Tr. 45-46.
Bernardyn told Dodds he was being asked to drive at a higher speed than he believed was safe
given the poor road conditions. T. Tr. 29-31, 53-54. During his 8-10 minute complaint to
Dodds, Bemardyn repeatedly cursed and, referring to Wapinski, said "I'll get the little f----r." 21
FMSHRC at 823; T. Tr. 31-32, 54, 63, 88-91, 134-35; M. Tr. 71. Derrick overheard Bemardyn's
complaints and profanity on the CB radio and fired him after he had dumped the load in his

1

A hearing on Bemardyn's temporary reinstatement application was held on March 16,
1999. Some witnesses testified at the temporary reinstatement hearing; others testified at the
merits hearing on May 18, 1999. Citations to testimony from the temporary reinstatement
hearing are referred to as "T. Tr." Citations to testimony from the merits hearing are referred to
as "M. Tr." The judge incorporated the transcript and exhibits from the temporary reinstatement
hearing into the record of the instant merits proceeding. M. Tr. 9-10.
299

truck, assertedly for profanity and threatening a supervisor over the CB radio. T. Tr. 87-91, 9596, 145; M. Tr. 65-66.2
On November 12, Bernardyn filed a discrimination complaint with MSHA alleging that
he was discharged unlawfully. The Secretary's application for temporary reinstatement was
granted, and Bemardyn was ordered temporarily reinstated to his former position on March 22,
1999. 21FMSHRC339, 342 (Mar. 1999) (ALJ).
On the merits of the complaint, the judge found that Bernardyn engaged in protected
activity when he drove at a speed he felt the road conditions warranted, that Reading's discharge
ofBernardyn constituted adverse action, and that, based on the coincidence in time between
Derrick's order to Wapinski to stop Bemardyn twice for driving too slowly, and Derrick's
discharge ofBernardyn, the Secretary established a prima facie case of discrimination. 21
FMSHRC at 822. However, the judge determined that Reading would have fired Bernardyn in
any event for the 8-10 minute cursing episode over the CB radio and his threatening language
directed towards Wapinski. Id. at 823. 3

IT.
Disposition
The Secretary asserts that the judge failed to evaluate whether Bemardyn's protected
activity and his profanity were inextricably intertwined such that the profanity cannot be isolated
as an independent and legitimate reason for the discharge. PDR at 8-14.4 The Secretary also
maintains that Bemardyn's impulsive and vague statement to a safety officer does not constitute
a threat against his supervisor. Id. at 14-17. Finally, the Secretary submits that substantial
evidence does not support the judge's finding that Reading's discharge of Bemardyn did not
subject him'to ~isparate treatment. Id. at 17-19.

2

Within 30 minutes after Bemardyn's termination, road conditions worsened, including
a layer of ice that had formed 9n the road. T. Tr. 103-05. After a foreman's truck slid down the
haulage road, the road was shut down due to the slippery conditions. T. Tr. 56-57, 103-04.
3

The judge also "dissolved" his previously issued temporary reinstatement order. 21
FMSHRC at 824. The Commission, finding that the express language of Mine Act section
105(c)(2), 30 U.S.C. § 815(c)(2), requires that a temporary reinstatement order remain in effect
until the decision on the merits becomes a final Commission decision pursuant to section
113(d)(l), 30 U.S.C. § 823 (d)(l), vacated the judge's dissolution of the temporary reinstatement
order. 21FMSHRC947, 949, 951 (Sept. 1999).
4

Pursuant to Commission Procedural Rule 75(a)(l), 29 C.F.R. § 2700.75(a)(l), the
Secretary designated her PDR as her brief.
300

<:·:

Reading-responds that the judge correctly found that Reading established its affirmative
defense, and that Bemardyn's profanity was not inextricably linked to his protected activity. R.
Br. in Resp. to PDR at 4-9. 5 Reading further argues that Bemardyn's statements threatened
Wapinski. Id. at 5. Reading also claims that the judge's finding that it did not subject Bemardyn
to disparate treatment is supported by substantial evidence. Id. at 9-11.
A complainant a~leging discrimination under the Mine Act establishes a prima facie case
of prohibited discrimination by presenting evidence sufficient to support a conclusion that the
individual engaged in protected activity and that the adverse action complained of was motivated
in any part by that activity. See Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr.
1998); Secretary ofLabor on behalfof Pasula v. Consolidation Coal Co., 2 FMSHRC 2786,
2799 (Oct. 1980), rev'd on other grounds, 663 F.2d 1211 (3d Cir. 1981); Secretary ofLabor on
behalfof Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 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. See Robinette, 3 FMSHRC
at 818 n.20. If the operator cannot rebut the prima facie case in this manner, it nevertheless may
defend affirmatively by proving that it also was motivated by the miner's unprotected activity
and would have taken the adverse action for the unprotected activity alone. See id. at 817-18;
Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639,
642-43 {4th Cir. 1987) (applying Pasula-Robinette test).
Reading does not directly dispute that the Secretary proved a prima facie case of
discrimination. However, the operator suggests that nothing in the record indicates that Derrick
knew that Bemardyn drove slowly because of his concern regarding the road conditions. R. Br.
in Resp. to PDR at 7. Insofar as this contention may be seen as calling the prima facie case into
question, we address the issue. The judge found that the Secretary made out a prima facie case,
but made no explicit finding regarding Derrick's knowledge. 21 FMSHRC at 822. The
Commission lias stated that "an operator may not escape responsibility by pleading ignorance due
to the division of co~pany personnel functions." Metric Constructors, Inc., 6 FMSHRC 226,
230 n.4 (Feb. 1984), quoted in Wiggins v. Eastern Associated Coal Corp., 7 FMSHRC 1766,
1771 (Nov. 1985). Here, Wapinski testified that Bemardyn, in response to Wapinski's inquiry
into why he was driving slowly, informed him that the road was slippery. T. Tr. 141-42, 153-54.
In any event, Derrick understood that Bemardyn's conversation on the CB was with bis safety
committeeman, and he admitted lie heard Bemardyn say that Wapinski ''was forcing him to drive
faster and he didn't feel that he should." T. Tr. 88-89. To the extent Reading's argument is
viewed as a challenge to the judge's finding of a prima facie case, we conclude the judge's
finding is supported by substantial evidence.6 Accordingly, we affirm that finding.

5

Reading designated its brief in response to the PDR as its brief.

6

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means '"such relevant evidence as a reasonable·
301

Having found that Bernardyn established a prima facie case, the judge nevertheless found
that Reading successfully asserted the affirmative defense that it would have fired Bernardyn
without regard to his protected activity because he swore over the CB radio and used threatening
language towards Wapinski. 21 FMSHRC at 823. As we explain further below, we find the
judge' s analysis of Reading's affirmative defense problematic in several respects. Furthermore,
as discussed infra, at section II.B, we find that the judge failed to address the possibly dispositive
issue of whether the conduct on which Reading purportedly based its firing of Bernardyn was
provoked and therefo~e protected.7
A.

Reading' s Affirmative Defense

We set forth the general principles for evaluating an operator's affirmative defense within
the Pasula-Robinette framework in Bradley v. Belva Coal Co.:
[T]he operator must prove that it would have disciplined
the miner anyway for the unprotected activity alone. Ordinarily, an
operator can attempt to demonstrate this by showing, for example,
past discipline consistent with that meted out to the alleged
discriminatee, the miner's unsatisfactory past work record, prior
warnings to the miner, or personnel rules or practices forbidding
the conduct in question. Our function is not to pass on the wisdom
or fairness of such asserted business justifications, but rather only
to determine whether they are credible and, if so, whether they
would have motivated the particular operator as claimed.
4 FMSHRC 982, 993 (June 1982); see Secretary of Labor on behalfofKnotts v. Tanglewood
Energy, Inc., 19 FMSHRC 833 (May 1997). In Secretary ofLabor on behalfof Cooley v.
Ottawa Silica Co., 6 FMSHRC 516, 521 (Mar. 1984), the general principles of Bradley were
tailored specifica~ly to situations involving the use of profanity. In Cooley, we looked to whether
the operator had prior difficulties with the complainant's profanity, whether the operator had a
policy prohibiting swearing, and the operator's treatment of other miners who had cursed or used
threats. Id.; see also Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 532-33 (Apr. 1991)
(applying the factors announced in Cooley).

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
7

We view this case as presenting the issue of provocation. The Secretary's alternative
argument that Bernardyn's protected activity and his swearing were inextricably intertwined does
not fit the facts of this case, and we therefore decline to apply that mode of analysis in this
particular context.
302

:;:

·:~

We conclude that the judge failed to adequately analyze the evidence relevant to the
Cooley factors. First, we note that the record does not contain any evidence of prior difficulties
Reading may have had with Bemardyn swearing. See Cooley, 6 FMSHRC at 521 (notii;lg lack of
evidence that the operator considered complainant to have difficulties involving profanity).
Regarding Reading's disciplinary policies, we note that there was a dispute at the hearing as to
which disciplinary policy was in effect at the time ofBemardyn's discharge: a 1987 policy
which provided that the offending miner would be discharged after "complete exhaustion of
disciplinary warnings and suspensions," or a 1998 policy providing that insubordination provided
just cause warranting immediate discharge. Gov't Ex. B; R. Ex. 2. We also note that neither of
the policies contained any written rule specifically prohibiting cursing. Nor did the 1998 policy
define "insubordination."
The Secretary argued below that the 1987 policy was in effect at the time of Bernardyn' s
discharge. S. Post Hearing Br. at 8. Particularly, she pointed to one of Reading's own exhibits
- an August 4, 1998 letter from a Reading attorney to a UMWA attorney which stated: "This
letter confirms that the Company will implement the attached Code of Conduct following the
conclusion of the current negotiations and ratification of the new collective bargaining
agreement." Id. (citing R. Ex. 2 (emphasis added)). Jay Berger, a UMWA district executive
board member who was involved in the 1998 collective bargaining agreement negotiations,
testified that the bargaining agreement was not ratified until November 16, 1998 - a date which
falls after Bemardyn's discharge- and also testified that the 1987 policy was in effect at the
time ofBemardyn's discharge. M. Tr. 43, 45-46.
Reading contended below that the 1998 policy was in effect at the time ofBemardyn's
discharge. R. Post Hearing Br. at 6. Berger testified that the disciplinary policy was "separate
and apart from the collective bargaining agreement."8 M . Tr. 56. Derrick testified that the
UMWA's chief negotiator said that the disciplinary policy was not a contractual issue, and also
stated that, when the UMWA negotiator signed a copy of the August 4, 1998 letter on August 11,
1998, the new disciplinary policy came into effect. M. Tr. 75-77.
The judge did not address this dispute in his decision. Determining which disciplinary
policy was in effect on November 10 is a crucial factor to consider in deciding whether
Bemardyn's discharge subjected him to disparate treatment and, more broadly, whether Reading
established that it would have terminated Bemardyn for his unprotected activity alone. The
record suggests that prior cursing incidents at Reading occurred under the 1987 policy. Gov't
Ex. C. Thus, if the 1987 policy was in effect at the time of Bemardyn' s discharge, the
circumstances surrounding Bemardyn's discharge could be compared with prior cursing
incidents in determining whether Reading subjected Bemardyn to disparate treatment. See
Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 17 (Jan. 1984) (finding that the operator's treatment
of the complainant was consistent with its treatment of other employees disciplined under the

8

The operator did not directly address the Secretary's argument that the implementation
of the 1998 disciplinary policy was subject to ratification of the bargaining agreement.
303

same disciplinary policy). If, however, prior to Bemardyn's discharge, insubordination had
become grounds for immediate discharge pursuant to the 1998 policy, previous incidents of
cursing at Reading become less easy to compare to Bemardyn's case. In sum, the judge should
have determined which disciplinary policy was in effect in analyzing the disparate treatment
issue.
Regarding the judge's discussion of disparate treatment, we note that the record contains
several prior instances of employees being disciplined for cursing at Reading, none of which
resulted in discharge. M. Tr. 27-31; Gov't Ex.Cat 1-4. The other cursing incidents also
involved various failures to obey work orders, including miners who left assigned work areas
early, arrived for work late, argued with foremen about job assignments, ignored a supervisor
giving work assignments, and refused to perform a job out of classification as ordered. Gov't Ex.
C; M. Tr. 29. Thus, Reading had no established practice of disciplining workers for cursing
alone and in the absence of accompanying insubordinate acts, or of treating cursing as a form of
insubordination. On remand, the judge needs to analyze whether Reading established that it
would have discharged Bemardyn for his cursing episode alone even though it had never before
levied such a severe penalty on a cursing employee, and had no established policy of discipline
for cursing. Although cursing is unprotected activity under the Mine Act, it is not sufficient for
an employer to show that a miner deserved to be fired for unprotected conduct; rather, the
employer "must show that he did in fact consider the employee deserving of discipline for
engaging in the unprotected activity alone and that he would have disciplined him in any event."
Pasula, 2 FMSHRC at 2800 (emphasis in original).
While the record contains several prior instances of cursing at Reading, none of which
resulted in discharge, Bemardyn's episode of cursing included what the judge characterized as a
threat against Wapinski. The Secretary claims here, as she did below, that Bemardyn's words
did not constitute a threat against Wapinski. S. Post Hearing Br. at 8; PDR at 14-17. The judge
made contradictory findings on this question.9 On the one hand, he stated that, based on the
Secretary's failure to rebut Derrick's testimony regarding the specific words Bemardyn used over
the CB, it was "reasonable to draw an inference that he used these words ['I'll get the little
fucker'], but did not consider them to constitute a threat." 21 FMSHRC at 823 & n.9. 10 On the

9

Our dissenting colleagues conclude that "a reasonable person would not have
considered Bemardyn's words to constitute a threat." Slip op. at 15. Commission precedent,
however, is clear on this point: it is not within our power to reweigh the evidence in this case or
to enter de novo findings of fact based on an independent evaluation of the record - which is
precisely what our colleagues do. Island Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993);
see also Wellmore Coal Corp., No. 97-1280, 1997 WL 794132, at *3 (4th Cir. 1997) ("'[T]he
ALJ has sole power to . . . resolve inconsistencies in the evidence"') (citations omitted).
10

We note that Bemardyn testified that when he uttered the purported threat, he was "not
trying to describe anybody. I was just blowing some steam off after what I thought [I] was
harassed." T. Tr. 32.
304

..

other hand, the judge held that Derrick terminated Bernardyn because he "cursed and threatened
his supervisor." Id. at 823 (emphasis added).
On remand, the judge must resolve this inconsistency. Clearly, he concluded that
Bernardyn did not intend to threaten Wapinski. Id. at 823 n.9. The next question he must
analyze is the impact ofBernardyn's words, specifically, how Bemardyn's words could
constitute a threat when Wapinski, the person he allegedly threatened, did not hear Bernardyn's
supposedly threatening language, and whether Wapinski perceived any threat at all- let alone a
threat of physical harm. In this connection, we note that Reading does not dispute that
Bernardyn's allegedly threatening language was directed to his safety committeeman over the CB
radio, rather than to any
management official. T. Tr. 88-89. The judge must also consider whether the general words
Bernardyn used, which named no person in particular, constituted a threat against Wapinski. 11
B.

Provocation

Even if the judge determines that Reading has established the elements of its affirmative
defense, the question remains whether that defense must nevertheless fail because Bemardyn' s
conduct was provoked. Although we have recognized that cursing is opprobrious conduct
unprotected by the Mine Act, Cooley, 6 FMSHRC at 520-21, and would find threats all the more
opprobrious, in many cases decided under the National Labor Relations Act, 29 U.S.C. § 141 et
seq. (1994) (''NLRA"), 12 courts have recognized that an employer cannot provoke an employee

11

~isseht

tha~

The
implies
anything Bernardyn said over the company radio system is
protected because he "invoked the protection of the Mine Act in a classic sense - voicing
concern about safety issues to a union official." Slip op. at 12.. We believe, however, that safety
is not a four letter word nor that miners are so primitive as to be unable to express themselves on
important safety issues except through epithets or threats. As even our dissenting colleagues
recognize, the Act does not protect a "safety complaint ... made in ... a reprehensible manner."
Id. at 13.
•

12

In Delisio v. Mathies Coal Co., we recognized that "cases decided under the NLRA upon which much of the Mine Act's antiretaliation provisions are modeled - provide guidance
on resolution of discrimination issues under the Mine Act." 12 FMSHRC 2535, 2542-43 (Dec.
1990).
We also note that the National Labor Relations Board case on which the dissent relies
extensively, Caterpillar, Inc., 322 NLRB 674 (1996), was ultimately vacated by the NLRB on
March 19, 1998. Unpublished NLRB Order dated March 19, 1998. We question whether a
vacated case provides any authority, even persuasive authority, in this or any other legal forum.
305

into fill indiscretion and then rely on that indiscretion as grounds for discipline. 13 In Trustees of
Boston Univ. v. NLRB, the First Circuit stated, "at least so Jong as the employee's indiscretions
are not major, it is immaterial that the employee' s misconduct would constitute a sufficient
reason for discharge if the actual reason for discharge is the employee's participation in
[protected] activity." 548 F.2d 391, 393 (1st Cir. 1977). That court also indicated that
employees are to be given some leeway for impulsive behavior, and that "the leeway is greater
when the employee's behavior talces place in response to the employer's wrongful provocation."
Id. The Fourth Circuit has recognized that "[t]he more extreme an employer's wrongful
provocation the greater would be the employee's justified sense of indignation and the more
likely its excessive expression." NLRB v. M & B Headwear Co., 349 F.2d 170, 174 (4th Cir.
1965).
Whether an employee's indiscrete reaction upon being provoked is excusable is a
question that depends on the particular facts and circumstances of each case. Interpreting the
NLRA, the Seventh Circuit stated that an "employee's right to engage in concerted activity may
permit some leeway for impulsive behavior, which must be balanced against the employer' s right
to maintain order and respect." NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir.
1965).
In applying this test, some courts interpreting the anti-discrimination provision of the
NLRA have found that an employee's egregious conduct was sufficient to strip the employee of
that Act's protection, thereby justifying the employee's discharge. For example, in NLRB v.
Louisiana Mfg. Co., the Eighth Circuit denied reinstatement to a complainant who was "openly
abusive in his language [towards a supervisor] and obviously insubordinate in his conduct." 374
F.2d 696, 706 (8th Cir. 1967). In NLRB v. Soft Water Laundry, Inc., the Fifth Circuit denied
reinstatement to an employee who cursed at a supervisor loudly and in the presence of other
employees. ·346 F.2d 930, 934-35 (5th Cir. 1965). And in Timpte, Inc. v. NLRB, the Tenth
Circuit found that the termination of an employee who refused to stop using
foul language and· disparaging other employees after being warned not to do so was not
discriminatory. 590 F.2d 871, 873-74 (10th Cir. 1979).
Other courts, however, have found layoffs, based ostensibly on vulgar employee outbursts
to be improper where the employee's conduct was provoked by unjustified employer action. For
instance, in Trustees ofBoston University, the First Circuit upheld an administrative law judge's
excusing of an employee's misconduct because it was stimulated by the employer's own
wrongful conduct. 548 F.2d at 392-93. In Coors Container Co. v. NLRB, the Tenth Circuit held
13

Although the issue of provocation is one of first impression before the Commission, in
Moses v. Whitley Dev. Corp., we found that the operator failed to establish its affirmative defense
in part because "much of the language and improper attitude [which the operator alleged
motivated the complainant's discharge] arose in response to [the operator's] unlawful and
provocative a~empts to determine if [the complainant] had called the inspectors." 4 FMSHRC
1475, 1482 (Aug. 1982).
306

that the complaining employees' unprotected behavior- cursing at employer-hired security
guards who attempted to prevent the employees from engaging in protected activity - was
excusable impulsive behavior which did not justify discharge. 628 F.2d 1283, 1285, 1288 (10th
Cir. 1980). In NLRB v. Steineifzlm, Inc., the First Circuit upheld a decision of the National Labor
Relations Board (''NLRB") excusing a complainant's offensive and abusive language which
occurred during a confrontation with a supervisor in reaction to the supervisor's unjustified
warning of the complainant. 669 F.2d 845, 852 (1st Cir. 1982). And in M & B Headwear, the
Fourth Circuit upheld the reinstatement of a complainant who, after her discriminatory layoff,
threatened a supervisor and was rude to a vice-president, because "the unjust and discriminatory
treatment of [the complainant] gave rise to the antagonistic environment in which these remarks
were made." 349 F.2d at 174. 14
Here, the judge failed to make any findings regarding whether Bemardyn's cursing and
alleged threats were provoked by Reading's response to his protected refusal to drive at a higher
speed. In this connection, we note that when Bemardyn explained to Wapinski that he was
driving slowly because the poor road conditions warranted it, Wapinski responded by telling
Bemardyn to "get the thing moving and get going" or "pick it up when and where you can." T.
Tr. 20-21, 140-42. Had Bemardyn complied with Wapinski's instruction to drive faster, it would
have put him in harm's way. But for Wapinski's reaction to Bemardyn's protected refusal to
drive faster, Bemardyn would not have had any reason to make the complaint to Dodds during
which he cursed and made the allegedly threatening remark.
The question thus remains for the judge to determine on remand whether Bemardyn's
cursing (including the alleged threat) was provoked by Reading's response to his protected
refusal to drive faster. The judge must also determine whether the particular facts and
circumstances of this case, when viewed in their totality, place Bemardyn's conduct within the
scope of the "leeway" the courts grant employees whose "behavior takes place in response to [an]

14

The complainant in M & B Headwear was terminated for her organizing activities,
and, when her applications for job openings at the company were rejected, she became upset and
threatened to harm the supervisor who had conducted surveillance of her organizing activities.
349 F.2d at 171-74. The court held that "when a layoff is discriminatory a rehiring of the injured
employee cannot be avoided by reliance on her later unpremeditated and quite understandable
outburst of anger that in no way harms or inconveniences the employer." Id.
307

employer's wrongful provocation." 15 Trustees ofBoston Univ., 548 F.2d at 393. IfBemardyn's
conduct was provoked and excusable, Reading's affirmative·defense must fail.

m.
Conclusion
For the foregoing reasons, we vacate the judge's dismissal ofBemardyn's discrimination
complaint and remand this matter for further analysis consistent with this decision.

Theodore F. Verheggen, Co

Robert H. Beatty, Jr., Commissi

15

The dissent first concludes that Bemardyn was provoked, stating "we are hard pressed
to identify any other reason why Bemardyn would have cursed." Slip op. at 16. They then
conclude that "Bemardyn's actions are excusable and fall within this leeway." Id. But as we
pointed out above, these factual determinations are not ours to make, but rather must be made as a matter of law - in the first instance by the trier of fact. Island Creek Coal Co., 15
FMSHRC at 347. That this task belongs in the judge's hands is all the more apparent in this case
where he has not even reviewed the record and facts under the provocation doctrine we adopt
today.

308

Chairman Jordan and Commissioner Marks, dissenting:
We agree with our colleagues in the majority that the judge's analysis ofBernardyn's
discrimination complaint is deficient in several respects. However, because we believe that the
record compels the conclusion that Reading Anthracite failed to prove its affirmative defense, we
would reverse the judge's decision, and thus respectfully dissent.'
The salient factor in this case is that Bemardyn was fired for statements he made during a
conversation with his safety committeeman. Because that conversation constituted protected
activity (see Phillips v. IBMA, 500 F.2d 772, 778 (D.C. Cir. 1974)), and because Bernardyn's
comments during that conversation were not so flagrant that they eviscerated the protections of
the Mine Act, Reading cannot rely on them to discipline Bernardyn. Consequently, Reading's
affirmative defense must fail.
By calling his safety committeeman to complain that he was being forced to drive a truck
on slippery roads at an unsafe speed, Bernardyn invoked the protection of the Mine Act in a
classic sense -- voicing concern about safety issues to a union official. This was first deemed
·. protected under the Mine Act's predecessor, the Federal Coal Mine Health and Safety Act of
1969, 30 U.S.C. § 801 et seq. (1976) ("Coal Act"), by the D.C. Circuit in Phillips. In that case
the Court reversed a decision of the Interior Board of Mine Operations Appeals which had held
that a miner had not engaged in protected activity by lodging a safety complaint with his foreman
and mine safety committee because the Coal Act only protected complaints made to the Secretary
or his authorized representative. The Court recognized that "[o]nly if the miners are given a
realistically effective cha1U1el of communication re health and safety, and protection from reprisal
after making complaints, can the Mine Safety Act be effectively enforced." 500 F. 2d at 778.
Subsequently, when Congress was in the process of enacting the Mine Act, the Senate Report
cited Phillips f?vorably, stating that the Senate Committee intended "to insure the continuing
vitality of the various judicial interpretations of ... the Coal Act which are consistent with the
broad protections of the bill's provisions," and emphasizing that the Act's anti-discrimination
provision should be "construed expansively to assure that miners will not be inhibited in any way
in exercising any rights afforded by the legislation." S. Rep. No. 95-181, at 36 (1977), reprinted
in Senate Subcomm. on Labor, Comm. on Human Resources, Legislative History ofthe Federal
Mine Safety and Health Act of 1977, at 624 (1978).
Discharging a miner for peripheral statements made while complaining to a safety
committeeman may inhibit the frequency and manner in which miners make safety complaints,
resulting in a chilling effect on their ability to point out safety problems. A miner must feel free
to communicate about such issues - with a management safety director, a foreman, or a union
official - without undue concern about whether the complaint is couched in an acceptable
format, and thus should not be fired for the manner in which he states them except in extreme

1

We agree with the majority that the judge properly found that Bemardyn had made out
a prima facie case of discrimination. Slip op. at 4.
309

circumstances. These conversations occur within a framework that Congress wished to
encourage - the protected activity of making safety complaints - and in making them, a miner
enjoys the protection of the Mine Act's shield against retaliatory actions by the operator.
That shield is not absolute, however. A miner may lose the protection of the Mine Act in
circumstances where his safety complaint is made in such a reprehensible manner that he no
longer deserves the Act's protections because his actions cross a certain line. See Caterpillar
Inc., 322 NLRB 674 (1996). 2 The facts in Caterpillar are strikingly similar to the instant case.
Caterpillar fired its employee because during a grievance meeting, in front of other workers, he
said to a supervisor: '"You 're a motherfucking liar.' . . . 'You know what you said.' . . . 'If
you're man enough to admit it once, you ought to be man enough to admit it now.,,, Id. at 676.
He also gestured at the supervisor with the forefinger of one hand and repeated '"You
motherfucker.' . . . 'I'll deal with you on the outside,,,, striking the supervisor with his finger in
the top part of his body. Id. The National Labor Relations Board (''NLRB") nevertheless ruled
that his discharge violated the NLRA. Id. at 677.3

·

-·

The NLRB acknowledged that '"[t]he Act has ordinarily been interpreted to protect the
employee against discipline for impulsive and perhaps insubordinate behavior that occurs during
grievance meetings, for such meetings require a free and frank exchange of views and often arise
from highly emotional and personal conflicts."' Id. (quoting United States Postal Service v.
NLRB, 652 F.2d 409, 411 (5th Cir. 1981)). Recognizing that such protection is not without
limits, the NLRB held that when "an employee is discharged for conduct occurring during a
grievance meeting, the inquiry must focus on whether the employee's language is 'indefensible in
the context of the grievance involved,,,, 322 NLRB at 677 (quoting Crown Central Petroleum
Corp. v. NLRB, 430 F.2d. 724, 731 (5th Cir. 1970)) (emphasis in original) (citation omitted); see
also NLRB v. Vought Corp.-MLRS Sys. Div., 788 F.2d 1378, 1384 (8th Cir. 1986) (when
analyzing employer discipline of employees for protected activity where the employee used
intemperate language, the standard is whether the employee's improper conduct was so
......

2

While Caterpillar was decided under the National Labor Relations Act (''NLRA"), 29
U.S.C. § 141 et seq., we have often looked for guidance to case law interpreting similar
provisions of the NLRA in resolving questions about the proper construction of Mine Act
provisions. Berwind Natural Resources Corp., 21FMSHRC1284, 1309 (Dec. 1999); Delisio v.
Mathies Coal Co., 12 FMSHRC 2535, 2542-45 (Dec. 1990). In Delisio, the Commission
emphasized that it "has recognized ... that ... cases decided under the NLRA - upon which
much of the Mine Act's antiretaliation provisions are modeled-provide guidance on resolution
of discrimination issues under the Mine Act." Id. at 2542-43.
3

The NLRB, on the joint motion of the parties, subsequently vacated its decision in
Caterpillar in order to effectuate a settlement agreement (see Unpublished NLRB Order dated
Mar. 19, 1998), but the NLRB has nonetheless continued to cite it. See Central Illinois Public
Serv. Co., 326 NLRB No. 80, 159 LRRM (BNA) 1217, 1218 n.8 (Aug. 27, 1998); Shell Electric,
325 NLRB No. 156, 1998 WL 280365, at *4 (May 29, 1998).
310

..
·-·

,

1'.."·

indefensible as to forfeit the protection of the NLRA). We consider this standard to be equally
pertinent when we must decide whether a miner's conduct during the course of making a
protected safety complaint exceeds the protection of the Mine Act.
There is an unmistakable similarity between the lodging of employee grievances under
the NLRA and the filing of safety complaints under the Mine Act. As the Board recognized in
Caterpillar, "the filing and prosecution of employee grievances is a fundamental, day-to-day part
of collective bargaining and is protected by [the NLRA]." 322 NLRB at 676-77 (citation
omitted). Similarly, the reporting of safety complaints is a crucial activity protected by the Mine
Act, where candor is essential and disputes may arise.
Our adoption of the approach taken by the Board in Caterpillar is consistent with our
decision in Secretary ofLabor on behalfofKnotts v. Tanglewood Energy, Inc., 19 FMSHRC 833
(May 1997). In Knotts, a miner was discharged after engaging in a conversation with a
representative of the mine landowner. The Commission found that this conversation was
protected, because it included complaints about unsafe mine equipment. Id. at 837. The operator
claimed that it would have fired him in any event because he expressed disparaging views about
mine management during the conversation, including a statement he allegedly made that the mine
manager "sets outside with his feet on the desk and acts like a bigshot coal operator." Id. at 839.
The Commission found that "a significant portion of the conversation ... concerned safety
issues," (id.) and because these protected safety concerns were expressed in the same
conversation as the unprotected statements "'[i]t is fair that ... [the employer] bear the risk that
the influence of legal and illegal motives cannot be separated."' Id. at 839, 840 (quoting NLRB v.
Transp. Mgmt. Corp., 462 U.S. 393, 403 (1983)). Consequently, we held that the operator had
failed to meet its affirmative defense.
We conclude that the undisputed facts of this case compel the finding that Bemardyn's
conduct was not so indefensible as to cause him to fall outside the protective confines of the Act.
In fact, Bernardyn's.behavior is similar to the behavior the Board considered in Caterpillar, and
we find it appropriate to adopt its analysis in the instant case:

[W]e find that [the employee's] statement was a·spontaneous and
impulsive outburst that was triggered by [the employer's] own
inflammatory conduct. There is no evidence that durirtg his 20
years with the Company, [the employee] was a violent or
dangerous person. In light of the emotionally charged events that
had just occurred, it is apparent to us that (the employee] simply
lost his temper (or, as [the supervisor] so aptly put it, "blew up")
and made the spontaneous, emotional outburst at issue here....
. . . [W]e conclude that [the employee's] conduct during the
grievance meeting was not of such a flagrant or serious character as
311

to be "indefensible in the context of the grievance involved,"
thereby depriving him of the protections of the Act and rendering
him unfit for further service.
322 NLRB at 677.

In determining_ that Bemardyn's behavior was not indefensible, we find it noteworthy
that, as the majority points out, the record contains several other examples of employees who
cursed, but who were not discharged. Slip op. at 7. Unlike Bemardyn, these employees not only
cursed directly at their supervisors but also displayed other conduct warranting disciplinary
action. See Gov't Ex. C. In all four reported incidents, however, the workers received only
verbal or written warnings. Id. In one case, an employee was given a verbal warning for cursing
the plant superintendent in March 1994, and a month later, when he cursed his production
foreman, he was only given a written warning. 4 Id. at 2-3.

In determining that Bemardyn's conduct was not "indefensible," we have also considered
the operator's assertion that Bemardyn was fired for threatening Wapinski. R. Br. in Resp. to
PDR at 5, 10. We believe, however, that when the entire context is considered, a reasonable
person would not have considered Bernardyn's words to constitute a threat. We are mindful that
his comments were extremely general, and were not uttered directly to the alleged "victim." 5
Bemardyn suggested no specific means of hurting Wapinski, but spoke only in a very vague,
angry manner to a co-worker, his safety committeeman.6 He did "fly off the handle," and spoke
in a coarse and disparaging manner, but his words reflected his agitation and extreme frustration
with Wapinski. In sum, the record compels the conclusion that his actions here cannot be
classified as "indefensible."
In Caterpillar, the NLRB also reaffirmed the well-established principle, adopted by our
colleagues in the majority, that an affirmative defense must fail ifthe complainant's conduct was

4

The April employee warning and disciplinary report reflects that he had received the
previous verbal warning in March, and that he had received three other previous warnings (for
unspecified actions) since 1989. Gov't Ex. Cat 3.
5

Because he used the only means of communication at hand, the company-provided CB
radio in his truck, Bemardyn's complaint to his safety committeeman did wind up being
overheard by W apinski, as well as other drivers.
6

The judge's finding that Bemardyn himself did not intend his words as a threat is also
relevant. See 21 FMSHRC 819, 823 & n.9 (July 1999) (ALJ).
312

provoked by the employer. 322 NLRB at 678; slip op. at 8-9.7 The majority remands the case
for the judge to consider whether Bemardyn's cursing was provoked by his supervisor's response
to his protected refusal to drive faster. Slip op. at 10.
Based on this record, we are hard pressed to identify any other reason why Bemardyn
would have cursed. In describing his conversation with the safety committeeman, Bemardyn
testified that he told him tJ:iat management had asked him to drive faster, that he thought he
should be able to use his own discretion, and that, in terms of the curse words he used, he ''was
just blowing some steam off after what I thought was harassed [sic]." T. Tr. 30, 32. The
operator has offered no other reason for Bemardyn's cursing.
As the majority points out, under a "provocation" doctrine, a determination must also be
made as to whether Bemardyn' s conduct comes within the scope of the "leeway" granted by
courts to employees who were wrongfully provoked. Trustees ofBoston Univ. v. NLRB, 548
F.2d 391, 393 (1st Cir. 1977); see slip op. at 9. Our review ofBemardyn's actions (see supra
text accompanying nn. 2-7) and of the relevant case law in the area of"provocation," leads us to
the conclusion that, as a matter oflaw, Bemardyn's actions are excusable and fall within this
leeway. Bemardyn's conduct was no more egregious than the actions at issue in NLRB v. M & B
Headwear Co., 349 F.2d 170 (4th Cir. 1965) (cited by the majority, slip op. at 10), as well as
other cases following the principles articulated in that decision. See, e.g., Blue Jeans Corp., 170
NLRB 1425, 1425 (1968) (employee's statement that she "would kill the S.O.B." who told the
company about her union activities, and her actions in threatening the plant manager with
scissors in hand, provoked by the employer's discriminatory treatment of her); Vought Corp.MLRS Sys. Div., 788 F.2d at 1380, 1384 (employee's direct use of abusive, profane, and
threatening language toward his supervisor was unreasonably provoked by repeated company
violations of his rights under the NLRA).

' In decidfng t9 remand this matter, our colleagues cite to cases in which courts have found
that the employee's cqnduct negated the protections of the Act. These cases, however, are
readily distinguishable from the matter at hand. In NLRB v. Louisiana Manufacturing Co., the
complainant was rude to his supervisor and cursed at him directly. 374 F.2d 696, 705 (8th Cir.
1967). Bemardyn, of course, did not speak directly to his supervisor during the conversation at
issue. In NLRB v. Soft Water Laun~ry, Inc., the court denied reinstatement to an employee who
admitted using "extreme profanity" in a conversation with her supervisor. 346 F.2d 930, 934,
936 (5th Cir. 1965). The court found that the employee's language and conduct, carried out in
the presence of other employees, constituted insubordination, because it was in direct defiance of
superior authority, and amounted to a refusal to follow reasonable instructions. Id. at 934. There
is no claim by the operator in the instant case that Bernardyn refused to follow orders. Moreover,
in neither of these two cases relied on by the majority did the court utilize a "provocation"

7

In Caterpillar, the Board found that the employee's discharge was illegal because the
employer had provoked the alleged insubordination by cursing at him and imposing an unlawful
gag order. 322 NLRB at 678-79.
313

analysis. See NLRB v. Mueller Brass Co., 501 F.2d 680, 686 (5th Cir. 1974) (distinguishing Soft
Water Laundry and Louisiana Mfg., because "both involved unprovoked outbursts of abusive and
threatening language by the discharged employees").
Finally, in Timpte, Inc. v. NLRB, 590 F.2d 871, 872 (10th Cir. 1979), the employee was
not discharged when he circulated a controversial letter in the plant, but only after he refused to
agree that in the futu~e he would not circulate material with vulgar and indecent language.
Again, this conduct is a far cry from Bernardyn's.
Even under the traditional disparate treatment analysis discussed by the majority, we
believe that reversal, and not remand, is warranted here. Keeping in mind that Reading must
prove its affirmative defense by a preponderance of the evidence, (Secretary ofLabor on behalf
ofPrice v. Jim Walter Resources, Inc., 14 FMSHRC 1549, 1556 (Sept. 1992)), our review of the
record evidence on prior cursing incidents shows that Reading cannot meet its burden of showing
that it would have fired Bernardyn based solely on his cursing. The majority remands the case so
that the judge may consider whether Reading proved that it would have discharged Bernardyn for
his cursing alone, even though Reading had never fired an employee for this behavior in the past.
As we have demonstrated above, however, the record compels the conclusion that Bernardyn was
the victim of disparate treatment, as other employees who cursed were not fired, and the
operator's claim that he was fired for threatening Wapinski is not supported by record evidence.8
Our colleagues decline to compare the previous cursing incidents to the one at issue here,
because of the possibility that Bernardyn's actions fell under a new 1998 disciplinary policy.
Accordingly, they remand to the judge the question of which disciplinary policy was in effect at
the time ofBernardyn's termination. Slip op. at 6-7. We believe, however, that under either
policy, cursing of the kind that occurred here cannot reasonably be considered an offense
warranting immediate dismissal.
For purposes of this case, the only relevant difference between the two policies is that
the 1998 policy permits immediate discharge for work refusal and insubordination, while the
earlier policy called for progressive discipline when such conduct occurred. Under the 1998
policy, the following misconduct constitutes grounds for immediate dismissal:
(1)

(2)

Refusa.i to obey orders, refusal to perform work assignment
after instruction, failure to carry out instructions or
assignments or act of insubordination.
Stealing.
( :"

\·:

8

It is also significant that supervisors had previously used profanity toward miners. M.
Tr. 17-19, 30-31; see also Damon v. Fleming Supermarkets ofFla., Inc., 196 F.3d 1354, 1366
(11th Cir. 1999) (emphasizing prior circuit holding that "evidence demonstrating that the
decision-maker engaged in the same policy violation proffered for an employee's termination is
'especially compelling' evidence of pretext") (citation omitted).

314

(3)
(4)
(5)

Possession or using intoxicants or drugs iri the area of
work.
Carrying weapons on Company property.
Physical fighting.

R. Ex. 2, at 3. It is apparent that the behaviors described in this list involve actions so serious
that they must be stopped immediately, and the perpetrator removed from the mine. It is
significant, however, that in Bemardyn's case, he was permitted to continue his behavior, even
though management was aware of it and could have stopped it. We find it telling that when
Derrick was asked why he didn't get on the CB radio and tell Bemardyn to stop cursing, he
replied: "It never dawned on me to do it. . . . [I]t never crossed my mind to pick up the CB and
tell him to stop." T. Tr. 116.
Under the 1987 policy, misconduct considered a "serious offense," meriting discharge
only after the exhaustion of other disciplin~ remedies, included "[r]efusal to obey orders or
failure to carry out instructions or assignments. (Insubordinations)." Gov't Ex.Bat 2. Reading
viewed the 1998 policy as simply moving this provision from the progressive discipline section
in the 1987 policy to the immediate discharge section in the 1998 policy. See R. Ex. 2 at 1 (letter
from Howard A. Rosenthal). The wording under the 1987 policy makes clear that
insubordination was defined as work refusal, and that cursing would not fall under this rubric.
Consequently, we believe that remanding the disciplinary policy issue to the judge is
unnecessary, because the record supports only one reasonable conclusion: even if the later policy
were in effect, under the terms of its provisions, cursing was not cause for immediate dismissal.
Bernardyn' s termination, therefore, may properly be compared to the discipline previously
received by other workers under the 1987 policy, discipline which, as we have stated, was far less
severe.
Because we believe that the record in this case compels the conclusion that Reading
failed to prove its affirmative defense, we would reverse the judge's finding of no discrimination.
See Donovan v. Stafford Construction Co., 732 F.2d 954, 961 (D.C. Cir. 1984) (although neither
the Commission nor the judge had reached the issue of an affirinative defense, the D.C. Circuit
recognized that "[s]ince all the evidence bearing upon the issue is contained in the record before
us .. . a remand on this issue would serve no purpose. This·is particularly so in light of our
ultimate holding that only one conclusion would be supportable."); Brown v. East Miss. Elec.
Power Ass 'n., 989 F.2d 858, 862 (5th Cir. 1993) (evidence permitted only one result - that the
employer failed to meet its burden of proving that it would have removed employee if the illegal
consideration of race had not played a role); Secretary ofLabor on behalfofBowling v.
Mountain Top Trucking Co., 21FMSHRC265, 277 (Mar. 1999), appeal docketed, No. 99-4278
(6th Cir. Oct. 22, 1999) (remand on constructive discharge claim was unnecessary where the
record as a whole admitted to only one conclusion); see also Walker St9ne Co. v. Secretary of
Labor, 156 F.3d 1076, 1085 n.6 (10th Cir. 1998), aff'g 19 FMSHRC 48, 52-53 (Jan. 1997);
Secretary of Labor on behalfofHyles v. All Am. Asphalt, 21 FMSHRC 119, 137 (Feb. 1999).

315

in

For the foregoing reasons, we believe that a remand this case would serve no pwpose,
and we would therefore reverse the judge's decision and find in favor of Bemardyn.

Marc Lincoln Marks, Commissioner

:_c.:

316

Distribution

Martin J. Cerullo, Esq.
Cerullo, Datte & Wallbillich, P.C.
P.O. Box450
Pottsville, PA 17901
Colleen Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

317

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR

WASHINGTON, D.C. 20006

March 16, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos.

EXCEL MINING LLC

KENT 99-171-R
KENT 99-172-R
KENT 99-173-R

BEFORE: Jordan, Chairman; Marks, Riley, Verheggen, and Beatty, Commissioners
ORDER
BY THE COMMISSION:

.·
1

Pursuant to Commission Procedural Rules 73 and 74, 29 C.F.R. §§ 2700.73 and
2700.74,2 the International Chemical Workers Union Council ("CWU'') has filed a motion to

1

Cqmmission Procedural Rule 73 provides, in pertinent part, that a motion to intervene
shall set forth: .
(a) A legally protectible interest directly relating to the property or·
events that are the subject of the case on review; (b) A showing
that the disposition of the proceeding may impair or impede his
ability to protect that interest; (c) The reasons why the movant's
interest is not adequately represented by parties already involved in
the proceeding; and (d) ... [an explanation] why the movant's
participation as an amicus curiae would be inadequate.
29 C.F.R. § 2700.73.
2

Commission Procedural Rule 74 provides, in pertinent part:
(a) After the Commission has directed a case for review, any
person may move to participate as amicus curiae. . . . A motion for
·participation as amicus curiae shall set forth the interest of the
318

intervene or, in the alternative, to participate as amicus curiae, together with its brief in support
of the Secretary of Labor's request to reverse Administrative Law Judge Gary Melick's decision
in the above-captioned proceedings. Upon consideration of the motion, we deny the CWU's
motion to intervene, grant its motion to participate as amicus curiae, and accept the CWU's
amicus brief.
As grounds for its motion, the CWU states that it has been involved in Asarco, Inc., 20
FMSHRC I 001, I 004-08 (Sept. 1998), pet. for review docketed, No. 98-4234 (6th Cir. Oct. 16,
1998), at each stage of those proceedings, and that our decision in the instant matter may have an
impact upon its chances for success in Asarco. Mot. at 2. The CWU explains that its position in
the above-captioned matter is not represented by either party. Id. The CWU also states that,
since it concurrently submitted its brief regarding the proper interpretation of the applicable
section of the Mine Act, granting its request to intervene should not unduly delay these
proceedings or prejudice any party. Id. at 3. Finally, the CWU submits that it did not intervene
before the judge because it learned about these proceedings on January 26, 2000, 32 days after
the Commission had directed review ofthis matter. Id. at 2.
Excel Mining LLC ("Excel") opposes the CWU's motion. Excel submits that the CWU's.
motion to intervene was filed out of time, and that the CWU has offered no reason that might
constitute "good cause" to excuse the late filing. Opp'n at 1. Excel maintains that the CWU
lacks the requisite interest in this matter, and that granting the CWU's motion would prejudice
Excel because it would have to refute the CWU's argument, which was not made before the
judge. Id. at 2-3. Excel also claims that the CWU's motion to participate as amicus curiae
should be rejected because the CWU's position does not support one of the parties to the case,
because the CWU has no direct interest in this case, and because Excel would be prejudiced in
that granting this motion would require an extension of time for Excel and the Secretary of Labor
to respond to ~e CWU's arguments. Id. at 3-4.
The procedure for intervention under Commission Procedural Rule 73 requires, inter alia,
that the moving party set forth a legally protectible interest directly relating to the case on review,
and explain why its participation as an amicus curiae would be inadequate. The issue in the
underlying proceeding is whether Section 202(f) of the Mine Act, 20 U.S.C. § 842(f), permits the
Department of Labor's Mine Safety and Health Administration to measure silica-bearing dust in
coal mines using multiple samples taken over a single shift. 21FMSHRC1401 (Dec. 1999)
(AU). We have held that the legal basis for rejecting the use of single-shift sampling in coal

movant and show that the granting of the motion will not unduly
delay the proceeding or prejudice any party. . . . (b) The brief of an
amicus curiae shall be filed within the initial briefing period (see
§ 2700.75(a)(l)) allotted to the party whose position the amicus
curiae supports....
29 C.F.R. § 2700.74.
319

mines does not apply to metal/non-metal mines. Asarco, Inc., 17 FMSHRC 1, 5 (Jan. 1995).
Therefore, under Commission precedent, the holding in the underlying matter here will not have
a direct effect on the outcome of the Asarco matter currently pending before the Sixth Circuit,
which involves single-shift sampling in a metal/non-metal mine. Asarco, 20 FMSHRC at 1002.
Moreover, the CWU has made no showing that it represents any miners in the coal industry.
Thus, the CWU's stated interest in enhancing its chances for success in Asarco is insufficiently
direct to satisfy the requirements of Rule 73(a). Furthermore, the CWU has made no showing
why its participation in this matter as amicus curiae would be inadequate. Accordingly, we deny
the CWU's motion to intervene.3
The CWU's altel'native motion to participate as amicus curiae raises a timeliness issue.
We recently amended Rule 74 to clarify that an amicus brief is due "within the initial briefing
period (see§ 2700.75(a)(l)) allotted to the party whose position the amicus curiae supports." 29
C.F.R. § 2700.74. Prior to the November 8, 1999 amendment, it was unclear whether the amicus
brief could be filed as late as the deadline for filing the reply brief. See 29 C.F.R. § 2700.74(b)
(1998).
The CWU's amicus brief was not timely filed under Rule 74. Although the CWU's
position is not identical to the Secretary's position in this matter, both the Secretary and the
CWU seek to overturn the judge's decision. Consequently, we treat the CWU's position as more
closely aligned with the Secretary's than with the operator's. Thus, the CWU was required to file
its amicus brief within the Secretary's initial briefing period, which ended on January 24, 2000,
30 days after the Commission's direction for review. The CWU did not file its brief until
January 27, three days late. In addition, the CWU did not file a motion for extension of time
under Commission Procedural Rule 75(c), 29 C.F.R. § 2700.75(c).
Commission Procedural Rule 75(d), governing briefs, states that the Commission "may
decline to accept a brief that is not timely filed." 29 C.F.R. § 2700.75(d) (emphasis added). We
have been liberal in granting amicus status. See, e.g., Peabody Coal Co., 18 FMSHRC 494, 497
(Apr. 1996). We have also frequently granted extensions of time to file briefs. The CWU's
failure to timely file its brief, and a motion for extension of time, may be attributable to the
.recent change in our procedural rules.
Under these circumstances, we grant the CWU's motion to participate as amicus curiae,
and accept its late-filed amicus brief.

3

Commissioner Marks would grant the CWU's motion to intervene.
320

<·

Our decision in this matter may affect the manner in which the Secretary will be
permitted to sample for respirable dust. To this end, we invite any interested organizations or
persons to file motions for leave to participate as amici and amicus briefs in this matter. Any
motions and amicus briefs submitted shall be filed no later than 30 days from the date of this
order and, pursuant to Commission Procedural Rule 75(c), shall not exceed 25 pages. 29 C.F.R.
§ 2700.75(c). We hereby toll the time for parties to respond.to the CWU's brief pending further
Commission order.

Marc Lincoln Marks, Commissioner

Theodore F. Verheggen, Co

321

Distribution
by regular mail
Randall Vehar, Esq.
International Chemical Workers Union Council
1655 West Market Street
Akron, OH 44313-7095·
Timothy Biddle, Esq.
Sarah L. Seager, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
f.

Robin Rosenbluth, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203

'·

By facsimile
Michael Duffy, Esq.
National Mining Association
1130 171h St., N.W.
Washington, D.C. 20036

•.

Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA22031-2215

~.

•:

...

:.:

322

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

March 17, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION .(MSHA)
on behalf of CURTIS STAHL
v.

Docket No. WEST 2000-145-DM

A&K EARTH MOVERS, INC.

BEFORE: Jordan, Chairman; Marks, Riley, Verheggeri, and Beatty, Commissioners
INTERIM DECISION AND ORDER
BY THE COMMISSION:
On March 1'; 2000, the Commission received from A&K Earth Movers, Inc. ("A&K") a
petition for review and request for stay of Administrative Law Judge T. Todd Hodgdon's
February 18, 2000, order temporarily reinstating Curtis Stahl, issued pursuant to section 105(c) of
the Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"), 30 U.S.C. § 815(c). We
grant A&K's petition for review and, for the reasons that follow, we affirm the judge's order.
On July 27, 1998, Stahl filed a complaint with the Department of Labor' s Mine Safety
and Health Administration ("MSHA") stating that he had been discharged from A&K on July 15,
1998, and alleging .that the discharge was the result of his safety complaints. 22 FMSHRC 233,
233 (Feb. 2000) (ALJ). In his complaint, Stahl stated that, on several occasions during June and
July, 1998, he complained to his employer about worn out brakes on a fuel truck. Id. at 234-35.
Eventually, Stahl red-tagged the truck, taking it out of service. Id. at 234. On July 15, he was
terminated. Id. at 235. When Stahl asked his employer why he was terminated, he was told that
he "allowed both generators to run out of fuel last week and we just don't need any more trouble
around here." Id.
On January 21, 2000, nineteen months after receiving Stahl's complaint, the Secretary
applied to have Stahl temporarily reinstated. Appl. for Temp. Reinst. The matter proceeded to
hearing before Judge Hodgdon pursuant to A&K's request. Responding to the allegations in
Stahl's complaint, A&K presented testimony that Stahl did not communicate any safety
complaints to his superiors, that he was terminated for reasons having nothing to do with his
alleged protected activity, and that the decision to terminate Stahl was made a week before his
first alleged safety complaint. 22 FMSHRC at 235.
323

The judge found that there was no dispute that Stahl's discharge constituted adverse
action, and that employer knowledge of protected activity, hostility or animus towards the
protected activity, and coincidence in time are all circumstantial indications of discriminatory
intent under Commission case law. Id. at 236. In this regard, he noted Stahl's testimony that the
company had knowledge of his safety complaints and that only eight days elapsed between those
complaints and his termination. Id. Declining to resolve credibility disputes, the judge pointed
out that, while "A&K' s evidence indicates that it may well have a valid defense to Stahl's
complaint," the company' s evidence did not establish that the claim was frivolous. Id. at 237.
Accordingly, the judge issued an order directing A&K to temporarily reinstate Stahl. Id.
In its petition, A&K claims that the judge erred in finding that the complaint was not
frivolously brought because the Secretary failed to present evidence of employer animus towards
Stahl's alleged protected activity. PDR at 8-10. A&K also maintains that the Secretary's
nineteen-month delay in filing the application for temporary reinstatement prejudices the
operator, and that the temporary reinstatement claim should be barred by the equitable doctrine e-f
Iaches. Id. at 10. Finally, A&K requests that the Commission stay the judge's temporary
reinstatement order pending the Commission's review of the judge's decision. Id. at 10-12.
The Secretary responds that substantial evidence supports the judge's decision ordering
Stahl's temporary reinstatement. S. Resp. at 7-15. She also argues that A&K should not be
permitted to raise its laches argument before the Commission because it failed to raise it before
the judge, that the operator's laches argument is beyond the scope of temporary reinstatement
proceedings, and that the operator's laches argument attempts to punish a miner for the
Secretary's delay. Id. at 16-19. Finally the Secretary submits that the Commission should reject
A&K's stay request. Id. at 19-24.
Initially, we conclude that A&K's laches argument has not been preserved for review.
Below, the operator's attorney twice referenced the Secretary's nineteen-month delay in initiating
temporary reinstatement proceedings. Tr. 5, 228. Otherwise, A&K did not discuss the
Secretary's delay in initiating temporary reinstatement proceedings, let alone argue that laches
barred the instant temporary reinstatement proceedings. Nor has A&K presented in its petition
any reason for its failure to present its laches argument before the judge. Accordingly, we
decline to reach the argument. 10 U.S.C. § 823(d)(2)(A)(iii) ("Except for good cause shown, no
assignment of error by any party shall rely on any question of fact or law upon which the
administrative law judge had not been afforded an opportunity to pass.").
Nevertheless, we are troubled by the Secretary's nineteen-month delay in seeking Stahl's
temporary reinstatement, and the Secretary's failure to explain this delay. A delay of this
magnitude thwarts the entire purpose of the temporary reinstatement provision. To fully
discharge our duties under section 105 of the Mine Act, we retain jurisdiction of this case for the
limited purpose of obtaining from the Secretary a full and detailed explanation of this delay,
including information on when Stahl's complaint first came to the attention of an attorney within
the Department of Labor. Cf Daanen and Janssen, Inc., 19 FMSHRC 665, 666 (Apr. 1997)
324

(citing Unpublished Order at 2 (Feb. 5, 1997) directing Secretary to provide explanation of what
was alleged to be a misrepresentation in a motion for an extension of time). We also note it does
not appear that the Secretary has yet filed a discrimination complaint with the Commission. 22
FMSHRC at 233. We urge the Secretary to immediately act on Stahl's complaint if she has not
already done so.
Turning to the judge's decision ordering Stahl's reinstatement, we note that "[t]he scope
of a temporary reinstatement hearing is narrow, being limited to a determination by the judge as
to whether a miner's discrimination complaint is frivolously brought." Secretary ofLabor on
behalfofAlbu v. Chicopee Coal Co., 21 FMSHRC 717, 718 (July 1999) and Secretary ofLabor
on behalfofPeters v. Thunder Basin Coal Co., 15 FMSHRC 2425, 2426 (Dec. 1993), both
quoting Secretary ofLabor on behalfofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305,
1306 (Aug. 1987), aff'd, 920 F.2d 738 (I Ith Cir. 1990). We apply the substantial evidence test
in reviewing the judge's decision. 1 Secretary of Labor on behalfofBussanich v. Centralia
Mining Co., 22 FMSHRC 153 (Feb. 2000).
As stated by the judge, Stahl presented evidence that he engaged in protected activity
when he allegedly made several complaints to his superiors about defective brakes on a fuel
truck. 22 FMSHRC at 234, 236. It is undisputed that Stahl's discharge constituted adverse
action. Id. at 236. Nor does A&K dispute that Stahl's termination occurred eight days after his
final alleged complaint about the faulty brakes on the fuel truck (id. at 234, 236), from which an
illegal motive could be inferred. See Donovan ex rel. Anderson v. Stafford Constr. Co., 732 F.2d
954, 960 (D.C. Cir. 1984) (holding that where two weeks had elapsed between the alleged
protected activity and the miner's dismissal, "(t]he fact that the Company's adverse action ... so
closely followed the protected activity is itself evidence of an illicit motive").
In sum, the record contains evidence that A&K was aware of Stahl's safety complaints,
and that only eight 9ays elapsed between his last complaint and his discharge. A&K has
presented evidence th.at Stahl made no safety complaints, that it had no knowledge of any safety
complaints by Stahl, and that the decision to terminate him was made before the alleged
complaints.2 22 FMSHRC at 235. However, as the judge correctly pointed out, the judge is not

1

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

Contrary to A&K's claim that "some evidence of [employer] hostility [towards the
protected activity] must be presented in order to support an order for temporary reinstatement,"
(PDR at 8), we have never held that hostility is a prerequisite to a finding that a complaint is not

325

obligated to resolve testimonial conflicts in a temporary reinstatement decision. Id. at 236. The
record evid~nce on the protected activity, adverse action, and a nexus between the two,
constitutes substantial evidence in support of the judge's determination that the complaint was
not frivolous.
Accordingly, the judge's order requiring the temporary reinstatement of Stahl is affirmed.
We order Stahl's immediate temporary reinstatement, if he has not already been reinstated. We
also order the Secretary to file with the Commission within 10 days from the date of this interim
decision and order an explanation of the circumstances surrounding the protracted delay in
bringing Stahl's temporary reinstatement application. 3

Marc Lincoln Marks, Commissioner

•

.·

.·.
Theodore F. Verheggen, Com

Robert H. Beatty, Jr., Commissi

frivolous. Rather, such evidence is but one of several circumstantial indicia of discriminatory
intent that may be offered to show that a complaint is not frivolous.
3

We intimate no views as to the ultimate merits of the case. We deny the operator' s
request for a stay as moot.
326

Distribution
Richard L. Elmore, Esq.
Hale, Lane, Peek, Dennison, Howard & Anderson
100 West Liberty St., Tenth Floor
P.O. Box 3237
Reno, NV 89505
Tina Peruzzi, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge T. Todd Hodgdon
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

327

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

March 27, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

(.

Docket No. WEVA 98-111

v.

CONSOLIDATION COAL COMPANY

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

DECISION
BY: Jordan, Chairman; Marks, and Riley, Commissioners
This is a contest proceeding arising 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 the violation, charged
in the citation issued by the Department of Labor's Mine Safety and Health Administration
("MSHA") against Consolidation Coal Company ("Consol''), was the result of the operator's
unwarrantable failure. Administrative Law Judge Jacqueline Bulluck concluded that it was not
(21 FMSHRC 612 (June 1999) (ALJ)), and the Secretary appealed. For the reasons that follow,
we reverse the judge's determination and remand the case for assessment of the appropriate
penalty.

I.

_..:·

Factual and Procedural Background
Consol owns and operates Robinson Run No. 95, an underground coal mine in West
Virginia. 21 FMSHRC at 613. On January 15, 1998, MSHA inspector Charles Thomas was
conducting a Triple-A inspection at the mine. Id. While in the 12-D section of the mine to check
on safety equipment, Thomas noticed the absence of any centrally located supplementary roof
support, including posts, caps, wedges, and a saw. Id. As a result, Thomas spoke with Consol
day shift foreman Kevin Carter. Id. Thomas asked Carter about the location of the supplementary

1

Commissioner Beatty recused himself in this matter and took no part in its
consideration.
328

...-..

roof support and number ofroofposts. Id. at 613-14; Tr. 14. According to Carter, Thomas told
him "to count your posts." Tr. 96, 113-14. Carter told Thomas that he would "take care of it." 21
FMSHRC at 614. As Thomas left the mine, accompanied by miner safety representative Dave
McCullough, Thomas also spoke with Consol safety director Robert Church and told him that
attention was needed to address supplementary roof support in the 12-D section. Id.; Tr. 15.
Subsequently, during his shift on January 15, Carter counted the posts and caps along the
supply track and found that there were only 11. 21 FMSHRC at 614. Carter then spoke with
mine foreman Tom Harrison and requested additional posts and other roof support materials. Id.
Around 3:30 or 4:00 that afternoon, Harrison ordered the posts from the supply yard, which is
located about 10 miles from the 12-D section. Id.
MSHA inspector Thomas returned to the mine to continue his Triple-A inspection on
January 17 during the midnight shift, 2 days and four shifts after he left the mine on January 15.
Id. Consol foreman Frank Slovinsky was substituting for the regular foreman of section 12-D. Id.
Thomas asked Slovinsky where the emergency roof supports were located. Id. Slovinsky
responded that they should be in the tool car.2 Id.; Tr. 15. When the posts could not be located
there, the two searched along the supply track outby four crosscuts of the section. 21 FMSHRC at
614; Tr. 25. They eventually located 11 posts and some cap pieces and wedges, but never found a
saw. 21 FMSHRC at 614; Tr. 26.
Inspector Thomas then issued Order No. 4888994 charging Consol with a violation of 30
C.F.R. § 75.214 for failing to maintain a supply of supplementary roof support material at a
readily accessible location within four crosscuts of the 12-D section. 21 FMSHRC at 614.
Section 75.214 provides:

Supplemental support materials, equipment and tools.
(a) A supply of supplementary roof support materials and the tools
and equipment necessary to install the materials shall be
available at a readily accessible location on each working section or
within four crosscuts of each working section.
(b) The quantity of support materials and tools and equipment
maintained available in accordance with this section shall be
sufficient to support the roof if adverse roof conditions are
encountered, or in the event of an accident involving a fall.
Consol's roof control plan for the Robinson Run mine further specified that "[t]he quantity of

2

It was customary at the Robinson Run mine to maintain supplementary roof support for
a working section ·On a "sled" or tool car at the power center or track entry near the section. 21
FMSHRC at 613 2; Tr. 16-17.

n.

329

supplementary roof support material required by [section] 7 5.2 l 4(b) shall consist of a minimum
of twenty (20) posts of proper length with sufficient cap pieces and wedges." 21 FMSHRC at
615.
The inspector designated the violation as significant and substantial (S&S) and alleged that
it was the result of Consol's unwarrantable failure. Id.; Ex. P-1. The violation was abated
between 3:30 and 5:00·a.m. the following morning when miners were able to locate additional
posts along the supply and main tracks, and stored 20 posts, along with wedges, cap pieces, and a
saw, in the No. 11 crosscut. 21 FMSHRC at 614.
Consol contested the citation, and a hearing was held before an administrative law judge.
The judge held that it was clear that Consol had failed to maintain a supply of 20 posts and related
materials at a readily accessible location in the 12-D working section or within four crosscuts. Id.
at 615. The judge further concluded that the violation was S&S. Id. at 616. With regard to
unwarrantable failure, the judge noted that Consol was aware of the requirements of the standard
and that, on January 15, it had been put on notice that remedial efforts were necessary to achieve
compliance. Id. at 617. The judge found that, on January 15, foreman Carter and general mine
foreman Harrison acted promptly in ordering additional supplies. Id. The judge further reasoned
that "Consol assumed the risk of being cited by failing to ensure delivery to the section during the
supply crew's first available shift, i.e., the day shift of January 16th." Id. However, the judge
concluded that Consol's lack of follow-up until the midnight shift on January 17 did not constitute
intentional misconduct, recklessness, or a serious lack of reasonable care, amounting to more than
ordinary negligence and, therefore, was not the result of Consol's unwarrantable failure. Id.

II.
Disposition
The Secretary argues the record compels a finding that the violation was due to Consol's
unwarrantable failure. S. Br. at 7. She avers that MSHA inspector Thomas notified the day shift
foreman, the general foreman, and the safety director at the mine about the problem as well as the
need for corrective action, thus Consol was on notice that greater efforts were necessary to address
the cited condition, yet no meaningful effort was made to remedy the situation. Id at 7-10,12-13.
The Secretary also asserts that the cited condition posed a high degree of danger in the event of a
roof fall. Id. at 13-17. Finally, the Secretary argues that Consol's efforts to correct the violation
were ineffective, and the failure of three members of management to follow through with
corrective action before a citation issued demonstrated an attitude of indifference toward
abatement of the condition and the hazard it created. Id. at 10, 17-24.

In response, Consol argues that substantial evidence supports the judge's conclusion that
the violation was not the result of its unwarrantable failure. C. Br. at 6-7. Consol further argues
that the Secretary is essentially asking the Commission to overturn the judge's credibility
resolutions. Id. at 8-9. Consol argues that management reacted to the inspector's January 15
330

.·

comment concerning the supplemental roof post prudently and in a good faith manner. Id. at 911. Consol further notes' that there were other means of roof support available and that the 12-D
section where the violation occurred had a history of good roof conditions. Id. at 11. The delay in
getting the supplemental roof posts, Consol contends, was inadvertent, unintentional, and
unavoidable. Id. at 13. Finally, Consol argues that there was no prior history of similar
violations; rather, Consol made a good faith effort to maintain posts in the 12-D section but they
were removed for other purposes. Id. at 13-14.
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," "intentional
misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2003-04; Rochester &
Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, Inc. v.
FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test).
The Commission "has recognized that a number of factors are relevant in determining whether a
violation is the result of an operator's unwarrantable failure, such as the extensiveness of the
violation, the length of time that the violative condition has existed, the operator's efforts to
eliminate the violative condition, and whether an operator has been placed on notice that greater
efforts are necessary for compliance." Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994) (citing Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug.1992)).
Not all of the Mullins criteria are applicable to the violation at issue. However, a
determination of unwarrantable failure is amply supported by the relevant criteria. It is
undisputed that, when he was at the mine on January 15, MSHA inspector Thomas informed
several Consol· officials, including the day shift foreman and safety director, that they needed to
check the number of roof posts, caps, and wedges in the 12-D section to comply with the mine
roof control plan. However, neither day shift foreman Carter nor safety director Church took
action to ensure the violative condition was remedied.
Ideally, Carter should have immediately addressed the violative condition brought to his
attention by searching for the required safety equipment and materials. Instead, Carter contacted
mine foreman Harrison to have posts ordered from Consol's general supply. Carter's trial
testimony explaining his actions is revealing:

Q.

Is there some reason why you just didn't drop everything and go out
looking for posts elsewhere?

331

A.

We were in production at that time and it wasn't any emergency
situation that presented itself. I did have eleven ... to use, an~ we
have good top conditions, so I didn't see any reason to stop
everything to get nine posts.

Tr. 100.
Harrison, in turn, treated Carter's request for the supplementary roof support as a routine
supply request. As Harrison explained in his hearing testimony, Carter "indicated to me that as
far as the law is concerned he needed a few more [posts], but that he did have posts on the section,
so it didn't (s]eem to be urgent to me." Tr. 136-37. Harrison admitted that he could have had a
"special supply crew" assigned to gather the posts but, "[i]t's just not as efficient .... " Tr. 137.
While obtaining more posts through the normal supply chain should have put them in place on
January 16, inexplicably the posts were not delivered. Carter was present on the day shift on
January 16 but had no explanation for the delay in the delivery of the posts. Tr. 120-21. More
significantly, he took no action on January 16 to inquire about the whereabouts of the posts or to
ensure prompt shipment of the posts once it was apparent that they had not been received.
In short, Consol failed to respond effectively to rectify a violative condition of which it
was aware. Notwithstanding the passage of four intervening shifts after inspector Thomas' initial
admonition, Consol failed to place twenty posts at a central location to serve as supplementary
roof support as required. Consol now appears to believe that "good intentions" should be enough
to shield the company from an unwarrantable charge. Good intentions, however, and good faith
are not the same. Good faith requires vigilance about one's responsibilities, commitment to
finding the resources to get the job done, and accountability for failure.
While the record shows Consol officials made some effort to address the violation, clearly
their efforts were inadequate and by January 16, it should have been evident that greater efforts
were needed to correct the problem. However, no further action was taken because neither Carter,
Church, nor Harrison saw any urgent need to eliminate the violative condition for which Consol
was later cited.
The inadequacy of Consol's response to finding an insufficient number of posts on January
15 is in stark contrast to its response when it discovered a similar problem on December 15, 1997.
On the prior occasion, Carter made an entry into the pre-shift examination log when it was
ascertained there were insufficient posts on the working section, and the problem was eliminated
by the next shift. Tr. 93-96; R. Ex. 1. In contrast, on January 15, after inspector Thomas alerted
Carter to the shortage of posts in the 12-D section, Carter did not enter the shortage in the log so
other foremen on subsequent shifts could ensure that remedial action was taken. Thus, on the
midnight shift of January 17, foreman Slovinsky was not even aware of the hazard of inadequate
supplementary roof support. Understandably, he made no attempt to address or alleviate the
violative situation.

332

We have held that, "[w ]here an operator has been placed on notice of [a] ... problem, the
level of priority that the operator places on addressing the problem is a factor properly considered
in the unwarrantable failure analysis." Jim Walter Resources, Inc., 19 FMSHRC 480, 487 (Mar.
1997). By January 15, 1998, Consol was specifically alerted to the presence of a violation. Thus,
by January 17, when the citation was issued, Consol had clearly been put on notice that greater
efforts were needed to comply with the regulation. The Commission has, in a prior case,
concluded that the passage of one day, following an MSHA inspector's informing an operator of an
accumulation problem, constituted unwarrantable failure because the operator's "allowing the
accumulation to continue to exist established its aggravated conduct .... " Southern Ohio Coal
Co., 12 FMSHRC 1498, 1502-03 (Aug. 1990) ("SOCCO"). See also Mid-Continent Resources,
Inc., 16 FMSHRC 1226, 1233 (June 1994) (failure to address coal accumulations contained in
examination reports for two shifts constituted unwarrantable failure). Here, the violation was in
existence for two days after the inspector put the operator on notice that he would be checking on
the number and location of posts. We also find relevant Carter's concession that he was aware of
the existence of a violative condition at the time the inspector gave him the head's up to check his
posts. 3 Carter admitted to Thomas even then that the posts were not centrally located as required,
but were scattered along the tracks. 4 Tr. 24, 37; see Tr. 100-101.

In sum, once Consol became aware that it was in violation of the regulation and its roof
control plan, it was under an obligation to expeditiously remedy the condition that gave rise to the
citation. Relegating the request for additional posts to the routine supply system so as not to
interfere with production was a conscious decision by mine management. Attaching no special
significance to an order for materials necessary to bring the mine into compliance with a
mandatory safety standard is an indication that this operator should reexamine its priorities.
Failing to follow up the inspector's admonition in such a way as to insure that the request for
required roof control supplies did not get lost in the company's own bureaucracy is inexcusable.
Finally, nothing .in the record suggests that anyone was held accountable for this error. Taken
together, the company's actions reflect the kind of indifference to a violation that constitutes an
unwarrantable failure to comply with the regulation.

3

Although the dissent attempts to distinguish this case from SOCCO, in part because
there the violative condition had existed before the MSHA inspector alerted the operator (slip op.
at 10), Carter's statement makes clear that he, too, had knowledge of a safety problem before
being warned by the inspector.
4

As the Commission has noted in prior cases, a foreman is held to a high standard of
care. LaFarge Corzstruction Materials, 20 FMSHRC 1140, 1145 (Oct. 1998), citing Midwest
Material Co., 19 FMSHRC 30, 35 (Jan. 1997).
333

ill.
Conclusion
For the foregoing reasons, we reverse the detennination of the judge and conclude that the
violation was the result of Consol's unwarrantable failure. We remand the proceeding to the judge
for assessment of an appropriate penalty.

' .
Marc Lincoln Marks, Commissioner

ames C. Riley, Commissioner

334

Commissioner Verheggen, dissenting:
I find that substantial evidence1 supports the judge's conclusion that the Secretary failed to
prove that the violation of 30 C.F.R. § 75.214 was the result of Consol's unwarrantable failure. I
would affirm her decision, and therefore I respectfully dissent.
The Commission has recognized that a number of factors are relevant in determining
whether a violation is the result of an operator's unwarrantable failure, such as the extensiveness of
the violative condition, the length of time the violative condition has existed, the operator's efforts
to eliminate the violative condition, and whether the operator has been placed on notice that greater
efforts are necessary for compliance. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb.
1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992). There is no dispute here that the
operator was placed on notice by Inspector Thomas during his inspection on January 15, 1997.
However, in finding that the Secretary failed to prove the operator's unwarrantable failure, the
judge focused on two of the other factors -the length of time the condition existed and the
operator's efforts to eliminate the condition - factors which are central to this case. Each of the
judge's findings on these factors is supported by the record evidence.
First, with respect to the length of time the violative condition existed, substantial evidence
supports the judge's conclusion that the condition had not existed since October of 1997, as the
Secretary had alleged. 2 21 FMSHRC 612, 617 (June 1999) (ALJ). Based on the pre-shift report of
December 15, 1997, and the credited testimony of foreman Frank Carter, the judge concluded that
supplemental posts had been available on the section prior to January 15, 1997. Id. Second, as to
the efforts to eliminate the condition, the judge found "that foreman Carter and general mine
foreman Harrison acted promptly on January 15th in assessing the deficiency and ordering
additional supplies." Id. Carter testified that, upon being told by Inspector Thomas to count the
posts, he did so,, and thereafter called Harrison to order additional posts in accordance with
established mine procedure. Tr. 96-97. Harrison testified that, upon receiving Carter's call, he
ordered the posts from the supply yard for delivery to the section by the supply crew. Tr. 132-37.

1

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

According to the citation, "section [12D] has been in coal production since October of
1997 and no supply of supplementary roof support has been stored within four crosscuts of the
face." Ex. P-1. Inspector Thomas testified that his decision to cite the operator for
unwarrantable failure was based, at least in part, upon the reports of two miners that
supplemental posts had never been available in section 12D since work began there in October
1997. Tr. 62-63. ·
335

The judge concluded that any lack of additional follow-up until the time of the citation on January
17 did not amount to unwarrantable failure. She reached this conclusion after crediting Carter's
testimony that the lack of delivery on January 16 "did not cause him concern, but that no delivery
on the next day shift, January 17th, would have merited his attention." 21 FMSHRC at 617.
A judge's credibility findings are entitled to great weight and may not be overturned lightly.
Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541(Sept.1992); Penn Allegh Coal Co., 3
FMSHRC 2767, 2770 (Dec. 1981). There is no basis in this case to question the judge's credibility
findings. Because the record contains "such relevant evidence as a reasonable mind might accept
as adequate to support [the judge's] conclusion" (Rochester & Pittsburgh, 11 FMSHRC at 2163
(quoting Consolidated Edison, 305 U.S. at 229)), I would affirm the judge's decision.
Regrettably, the majority, in reversing the judge's decision, ignores the judge's factual
findings in this case, including her credibility determinations. Worse still, the majority ignores the
· substantial evidence test altogether, resulting in an opinion that provides, in my view, a classic
example of de novo factfinding by an appellate body, contrary to settled principles oflaw. Island
Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993) ("It would be inappropriate for the
Commission to reweigh the evidence in [any] case or to enter de novo findings based on an
independent evaluation of the record."); Wellmore Coal Corp. v. FMSHRC, No. 97-1280, 1997
WL 794132 at *3 (4th Cir. Dec. 30, 1997) ('"[T]he ALJ has sole power to ... resolve
inconsistencies in the evidence"') (citations omitted), cert. denied, 119 S.Ct. 600 (1998). For
example, notwithstanding the judge's contrary findings, the majority concludes that while Consol
made some effort to address the violation, "clearly their efforts were inadequate and by January 16,
it should have been evident that greater efforts were needed to correct the problem." Slip op. at 5.3
Time and again the courts have reminded us that this Commission may not "substitute a
competing view of the facts for the view [an] ALJ reasonably reached." Donovan ex rel. Chacon v.
Phelps Dodge Corp., 7_09 F.2d 86, 92 (D.C. Cir. 1983). While it is possible that a reasonable trier
of fact could have concluded that Consol's remedial efforts in this case were so inadequate as to
constitute "reckless disregard," this judge did not so find. The standard is not whether the judge
could have reached a different conclusion under these facts, but whether there is sufficient

3

The majority declares, with the benefit of hindsight, that "[i]deally, Carter should have
immediately addressed the violative condition brought to his attention by searching for the
required safety equipment and materials." Slip op. at 4. I agree. It does not follow, however,
that the actions taken by Consol, insufficient as they may have been, amounted to a less than
good faith effort, as the majority appears to suggest. Id. at 5 ("Consol now appears to believe
that 'good intentions' should be enough to shield the company from an unwarrantable charge.
Good intentions, however, and good faith are not the same.").
336

evidence in the record to support the judge's conclusion. See Wellmore, 1997 WL 794132 at *3
("the Commission's review [is] statutorily limited to whether the AU's findings of fact [are]
supported by substantial evidence. The 'possibility of drawing two inconsistent conclusions from
the evidence does not prevent an administrative agency's finding from being supported by
substantial evidence."') (citation omitted).

If the majority believes the judge erred by failing to properly analyze the adequacy of
Consol's remedial efforts, their only recourse under well settled Commission precedent would be
to remand this case to the judge rather than substitute their own judgement for that of the judge.
Notably, in another case where the adequacy of an operator's abatement efforts were questioned in
similar circumstances, this Commission remanded the case to the judge. See Windsor Coal Co., 21
FMSHRC 997, 1006 (Sept. 1999). 4
The majority also finds the operator's conduct unwarrantable because the violative
condition was not eliminated four shifts after it was placed on notice, citing as authority Southern
Ohio Coal Co., 12 FMSHRC 1498, 1502-03 (Aug. 1990) ("SOCCO"). My colleagues' reliance on
SOCCO is misplaced. First, unlike this case, there was evidence in SOCCO that the violative
condition, an accumulation of coal in a tailgate entry, had existed for some time prior to the
operator being warned by an MSHA inspector. Id. More importantly, in SOCCO, the Commission
was not reversing the judge's finding of unwarrantable failure, but affirming his finding on
substantial evidence grounds. Those grounds included the operator's failure to take meaningful
action to eliminate the accumulation after being notified one day earlier, as well as, among other
things, the judge's credibility findings against the operator. Id.

It is one thing to find that the failure to remedy a violation after the passage of one day may
support a finding of unwarrantable failure. But it is another thing altogether to find, as my
colleagues do, that the passage of four shifts compels a finding of unwarrantable failure and
reversal of the'judge. Once again, my colleagues substitute their judgement for the judge's in this
case, finding de novo that Consol's actions, or lack thereof, over four shifts constituted aggravated
conduct. It is not our role, however, to reweigh the evidence or to enter findings based on an
independent evaluation of the record. Island Creek, 15 FMSHRC at 347. Furthermore, as we have
recently recognized, "[t]he possibility of drawing two inconsistent conclusions from the evidence
does not prevent ... [a] finding from being supported by substantial evidence." Secretary ofLabor
on behalfof Clay Baier v. Durango Gravel, 21 FMSHRC 953, 958 n.6 (Sept. 1999) (citing
Secretary ofLabor ex rel. Walmsley v. Mutual Mining, Inc., 80 F.3d 110, 113 (4th Cir. 1996)).

4

In Windsor, I concluded that remand was unnecessary since it was obvious that the
operator's "efforts were not 'adequate' - had they been, there would have been no violation.
The question is rather whether [the operator's] efforts were so inadequate that the company's
conduct rose to a reckless, aggravated level of negligence. The judge concluded they were not,
and substantial evidence supports this conclusion." 21 FMSHRC at 1012 (Comm'r Verheggen,
dissenting). The same holds true in this case.
337

For the foregoing reasons, I would affirm the judge's finding that Consol's violation was
not unwarrantable. Accordingly, I respectfully dissent.

r.

338

Distribution
Elizabeth S. Chamberlin, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Tina Peruzzi, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge Jacqueline R. Bulluck
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

339

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

March 27, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos.
through

CONSOLIDATION COAL COMPANY

WEVA 93-77-R
WEVA 93-80-R
WEVA 93-146-B
WEV A 93-146-C

BEFORE: Marks, Riley, and Verheggen, Commissioners'

DECISION
BY: Marks, Riley, and Verheggen, Commissioners
This consolidated contest and civil penalty proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1994) (the "Act" or "Mine Act"), raises
the issue of whether Consolidation Coal Company ("Consol") violated four mandatory safety
standards a~ alleged in one citation and three orders issued by the Department of Labor's Mine
Safety and Health Administration ("MSHA") in connection with a methane explosion which
occurred on March 19, 1992, at Consol's Blacksville No. 1 Mine in northern West Virginia,
resulting in the deaths of four miners and injuries to two others. Commission Administrative
Law Judge Gary Melick vacated the citation and upheld the orders. 20 FMSHRC 1336 (Dec.
1998) (ALJ). We granted cross petitions for discretionary review filed by the Secretary of Labor
and Consol. The Secretary pe~itioned for review of the judge's decision vacating the citation and
vacating MSHA's allegations of unwarrantable failure on two of the orders. Consol petitioned
for review of the judge's decision upholding the orders and his finding of unwarrantable failure
with respect to one of the orders. For the reasons that follow, we affirm in part, reverse in part,
vacate in part, and remand.
.·'i

1

Chairman Jordan and Commissioner Beatty recused themselves in this matter and took
no part in its consideration. Pursuant to section l 13(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.
340

.·

=··

I.
Factual and Procedural Background
Consol's Blacksville No. 1 Mine liberated over 1 million cubic feet of methane during a
24-hourperiod and, therefore, was liberating "excessive quantities of methane," as specified in
section 103(i) of the Mine Act, 30 U.S.C. § 813(i), which provides for spot inspections by
MSHA in that circumstance. 20 FMSHRC at 1337. Donze} Ammons was a Consol vicepresident who was in charge of several mines, including Blacksville No. 1. Id. Among those
working under Ammons were Daniel Quesenberry, Ammons' assistant; Robert Levo,
superintendent of Blacksville No. 1; and Jack Lowe, foreman of Blacksville No. 1. Id.
Consol ceased production at the mine in June 1991 and by 1992 began closing down the
mine. Id. The primary activities during January to March 1992 were mine maintenance,
withdrawal of supplies and equipment, and removal of above-ground stockpiles of coal. Id. By
letter dated February 3, 1992, Consol's regional manager for safety, Charles Bane, notified
MSHA that Consol was in the process of withdrawing production equipment from the mine. Id.;
Resp't Ex. 3. The letter further stated that Consol would shut down all fans and simultaneously
cap all shafts when the underground areas had been vacated. 20 FMSHRC at 1337; Resp't Ex. 3.
Later in February, Consol decided to install an 800-foot dewatering pipe in the production
shaft to prevent water from accumulating in the mine and seeping into adjacent Consol mines.
20 FMSHRC at 1337.2 Consol's regional engineering office, headed by Van Pitman, was
responsible for installing the dewatering pipe. Id. Pitman directed Ed Moore, supervisor of
environmental quality control, to arrange for the installation. Id. Moore, in turn, retained an
independent contractor, M. A. Heston, Inc., to do the work. Id. Heston had worked for Consol
on many other jobs. Id. at 1339.
In order to install the dewatering pipe, it was necessary to build a work platform over the
production shaft. Id. at 1338. Ammons assigned that project to his assistant, Quesenberry, who
contracted with Forest Construction to construct a platform, sufficiently open to facilitate the
work, but which later could be sealed to form a permanent cap over the shaft. Id. 3

2

The production shaft was one of the mine's six shafts and had been used to transport
coal out of the mine with a skip hoist. 20 FMSHRC at 1337; Resp't Ex. 14. According to the
approved ventilation plan, the shaft had been intaking 187,000 cubic feet of air per minute
("cfin"). 20 FMSHRC at 1337.
3

We will hereinafter refer to this platform as a "cap" because this is the term used by the
parties and judge throughout these proceedings. We note, however, that the platform was not a
cap because it was not used to seal the production shaft. Cf 30 C.F.R. § 75.1711-1 ("Caps
consisting of a 6-inch thick concrete cap or other equivalent means may be used for sealing.").
Instead, Consol intended initially to use the so-called "cap" as a work platform to install the
341

Officials from Consol, Forest Construction, and M.A. Heston conferred on methods to
construct a cap over the shaft that would allow work to be performed on the dewatering pipe and
also would support the weight of the pipe. 20 FMSHRC at 1339. Initially, Consol's regional
engineering office had recommended the use of only a partial or "half' cap, so as to allow
ventilation to enter the shaft, with a fireproof partition as a means to prevent sparks from entering
the shaft. Id.; Tr. 117, 154, 501, 951-53.
Ammons told Quesenberry that he wanted threaded pipe to be used for the dewatering
project, so that pipe segments would not have to be welded together over the production shaft.
20 FMSHRC at 1340. Ammons was concerned with igniting grease in the production shaft,
although he was also aware of the potential for methane occurring in the shaft. Id. In a meeting
with Consol's regional engineering department, Quesenberry relayed the request for threaded
pipe and left the meeting with the understanding that it would be used. Id. Subsequently, when
the pipe was delivered to the mine, Quesenberry learned for the first time that engineering
department personnel had decided to use non-threaded pipe that would have to be welded. Id.
Ammons then telephoned Pittman, who explained that threaded pipe would not hold the weight
of the casing. Id. Without consulting with the engineering office, Ammons decided to construct
a "full" cap over the shaft, to ensure that sparks from welding would not enter the shaft. Id. at
1339; Tr. 694-95, 809-11.
The plan for construction of the cap over the shaft was based on a standard design used
previously by Consol (though not as a platform for installing dewatering pipe). See 20 FMSHRC
at 1339, 1340; Tr. 1698; Gov't Ex. 24. The base of the cap was to be constructed of 1/4-inch
steel plate welded to 6-inch I-beams across the shaft opening. 20 FMSHRC at 1339. A 6-inch
concrete deck would then be poured over the top of the steel plate. Id. at 1339, 1340. The plan
included a 22..:inch square opening in the center of the cap to allow entry of the 16-inch
dewatering pipe, with additional I-beam support to bear the weight of the pipe. Id. at 1339. At
least until the shaft was permanently capped, air would still be able to enter the shaft around the
dewatering pipe. Id. For ventilation, Ammons added two smaller steel pipes to the plan, each 6
inches in diameter, penetrating through the cap, welded to the steel plate below and extending 3
feet above the concrete deck where they would be capped by a valve connected to additional
lengths of PVC pipe. Id. The 6-inch pipes were incorporated into the plan, at least in part, to
provide the ventilation necessary to dilute methane in the shaft. Id. at 1342.
Ammons' decision to add the additional pipes for ventilation of the shaft was based on
his background and experience. Id. at 1339. It was standard procedure to cap a production shaft
in this manner when sealing a mine, and Ammons determined that the pipes would provide

dewatering pipe into the production shaft through the large opening provided for that purpose.
The platform would have become a cap only after completion of the dewatering pipe installation
when Consol intended to seal the shaft. Tr. 605-06, 1602, 1610, 1703.
342

·.

adequate ventilation.4 Id. He did not consult with any of Consol's engineers or conduct any
simulations or tests to determine ifthe pipes would provide adequate ventilation while the work
of installing the dewatering pipe was completed. Id. He was unfamiliar with the methane
liberation rate at the mine, the volume of air movement the two 6-inch pipes were capable of
providing, or the velocity of the airflow. Id. He assumed that the air intake through one of the
ventilation pipes would have been sufficient to ventilate the production shaft. Id. However, he
had never been involved in a project similar to this where welded pipe segments (for the
dewatering pipe) were installed through a modified cap. Id.
Since Consol's regional safety office generally communicated with MSHA on ventilation
plans, John Yerkovich, Consol's regional safety inspector (and Charles Bane's assistant),
verbally informed Terry Palmer, an MSHA safety inspector specializing in ventilation, of
Consol's plans to undertake what they characterized as capping the production shaft before
capping the other shafts and vacating the mine. Id. at 1337, 1338. 5 Following that conversation,
by letter dated March 3, 1992, Yerkovich wrote to MSHA concerning the project. Id.; see Gov't
Ex. 27. The letter did not indicate, however, that a dewatering pipe would be installed through
the cap and into the shaft. 20 FMSHRC at 1338; Gov't Ex. 27. Palmer drafted a response to the
letter, dated March 16, for the signature ofMSHA district manager Ronald Keaton. 20
FMSHRC at 1338; see Gov't Ex. 29. Palmer recommended to Keaton that MSHA seek
additional information from Consol because it was unclear why Consol was deviating from its
original plan of capping all the shafts in the mine at one time. 20 FMSHRC at 1338. Palmer
believed that since the production shaft was intaking 187 ,800 cfin of air, capping the shaft
required agency approval under MSHA regulations because it involved a change in the
ventilation plan. Id.; Gov't Ex. 26. The plan stated that "all changes or revisions to the
ventilation plan" must be approved before being implemented. Gov't Ex. 26. Palmer's letter
was not mailed to Consol until after the March 19 explosion. 20 FMSHRC at 1338.
Construction of the production shaft cap took place during the week of March 9, 1992,
with the concrete deck being poured on Friday, March 13. Id. at 1340; Tr. 254-60.6 Once the

4

See also 30 C.F.R. § 75.1711-1 ("Caps shall be equipped with a vent pipe at least 2
inches in diameter extending fo~ a distance of at least 15 feet above the surface of the shaft.").
5

At trial, Yerkovich testified that Raymond Strahin, another MSHA ventilation specialist
who worked with Palmer, told him that written notification of this change would be sufficient
(Tr. 1254-57), which Strahin denied. 20 FMSHRC at 1338; Tr. 1866. Palmer testified that he
told Yerkovich that capping the production shaft would result in a change in the ventilation plan
that would have to be approved by MSHA's district manager. 20 FMSHRC at 1338; Tr. 1106.
6

MSHA inspector Dale Dinning, along with inspector trainee William Sperry, were at
the mine on March 13 on a section 103(i) spot inspection, and observed the pouring of concrete
over the steel plate. Tr. 1339-40, 1342-49, 1509-10, 1513. The two inspectors were at the mine
next on March 19, the day of the explosion, for a regular inspection. Tr. 1341-42, 1351-52.
343

concrete was in place, airflow decreased from around 187,000 cfm to around 7,350 cfm. 20
FMSHRC at 1341. On March 13, Consol stopped its morning shift of underground personnel
from entering the mine while portions of the cap were put in place. Id. at 1340. After Consol
personnel evaluated the effects of the ventilation change, they determined that the mine was safe
to enter, and the miners continued the removal of underground equipment. Id. at 1340-41. In
evaluating the effect of the cap, Consol utilized the same procedures as a preshift examination
that took approximately 30 minutes to complete. Id. at 1341. Consol also checked charts for the
fans on the surface. Id. The charts reflected readings of water gauges near the fans that
measured pressure differences. Tr. 635-37, 932-33. However, the charts on the fans would not
show the impact of capping on airflow within the shaft itself. 20 FMSHRC at 1341. Around
11 :00 a.m. on March 13, mine foreman Jack Lowe traveled underground to the bottom of the
production shaft to release smoke from a smoke tube and ascertained that there was a drift of
airflow down the shaft. Id. He did not, however, measure the velocity of the airflow. Id. Nor
was the impact of the cap on airflow in the production shaft evaluated. Id.
On Monday, March 16, Heston employees arrived at the Blacksville Mine to organize
materials and begin preparations for fabricating the dewatering pipe. Id. Consol environmental
engineer Rodney Baird and Consol environmental technician Russell DeBlossio were assigned to
oversee installation of the dewatering pipe, although each assisted in the manual labor of
installing the pipe. Id. Baird was certified to make methane examinations and had a working
methane detector in his vehicle at the mine. Id. Neither Baird nor DeBlossio had any experience
in underground ventilation. Id.
On Wednesday, March 18, Heston employees began installing the 16-inch dewatering
pipe into the production shaft. Tr. 262-63. The dewatering pipe was constructed by welding
each 20-foot long section to the one below it. Tr. 175. The first section of pipe was plugged to
prevent welding sparks from entering the shaft through the pipe. 20 FMSHRC at 1342. As each
new length of pipe was lifted in place, the 22-inch opening in the cap through which the
lengthening column of pipe extended down into the shaft was sealed with Thermoglass cloth and
two steel plates cut to fit around the pipe. Id. The pipe sec~ions were then welded together
several feet above the 22-inch opening by miners standing on the cap. Id.; Gov't Ex. 15. With
the plugged 16-inch pipe in place and steel plates and Thermoglass cloth surrounding the pipe,
airflow into the production shaft was again reduced, from 7,350 to 790 cfm. 20 FMSHRC at
1341, 1342.
Consol environmental engineer Baird and Heston employees found that the 6-inch
ventilation pipe closest to the 22-inch opening interfered with installation of the dewatering pipe.
Id. at 1342. Blacksville Superintendent Robert Levo received a request from the production shaft
site for a saw to cut off the PVC pipe extension of one of the 6-inch ventilation pipes. Id. A ball
of burlap or Thermoglass cloth was put inside the shortened pipe, and a second piece of the
material was wired over the top. Id. The elimination of one of the two 6-inch pipes as a source
of ventilation further reduced airflow to 400 cfm. Id. at 1341, 1342. Levo visited the job site
after the pipe was plugged. Id. at 1342. He could not recall whether he told Baird the
344

importance ofleaving the pipe open, but assumed Baird knew enough to reopen the pipe. Id. Ed
Moore, in charge of environmental quality control in Consol's regional engineering office and
Baird's boss, was also aware that one of the ventilation pipes had been cut and covered or
plugged. Id. at 1337, 1342.
Throughout the first day of installation, one welder was used, and approximately 12
sections of dewatering pipe were installed. Id. at 1342-43. Installation resumed at 7:30 a.m. the
following day, Thursday, March 19, with Baird and DeBlossio again assisting. Id. On this
occasion, Heston utilized two welders instead of one, reducing by half the time it took to weld
sections of pipe together. Id. at 1343. At approximately 10:18 a.m., a methane explosion
occurred in the productioIJ. shaft that completely destroyed the cap. Id. Consol engineer Baird
and three Heston employees were killed in the explosion; two other Heston employees were
injured. Id. In addition, underground stoppings, cribs, and overcasts within 100 feet of the
production shaft were damaged. Id.
Following an investigation,7 MSHA issued the following citation and three orders:
Citation No. 3109521 charged Consol with a violation of30 C.F.R. § 75.301 (1991) for
failing to maintain the volume and velocity of air sufficient to render harmless explosive gasses
in the production shaft. 20 FMSHRC at 1343. MSHA determined that the violation was
significant and substantial ("S&S")8 and was the result of the operator's unwarrantable failure
(see infra n.11 ). Id.
Order No. 3109522 charged Consol with a violation of 30 C.F.R. § 77.l 112(b) (1991) by
failing to make required methane examinations at the capped production shaft where welding
was being performed. 20 FMSHRC at 1345. MSHA designated the violation as S&S and
alleged that it was the result of the operator's unwarrantable failure. Id. at 1347.
Order No." 3109523 charged Consol with a violation of30 C.F.R. § 75.316 (1991) by
making a major change in the approved ventilation plan without MSHA approval when it capped
the production shaft. 20 FMSHRC at 1348. MSHA determined that the violation was S&S and
the result of the operator's unwarrantable failure. Id. at 1351.
Order No. 3109524 charged Consol with a violation of30 C.F.R. § 75.322 (1991) by
making changes in its ventilation which affected the split of air ventilating the production shaft
where miners were allowed to work before effects of the changes were evaluated. 20 FMSHRC

7

For a description of the post-accident investigation, see Consolidation Coal Co., 20
FMSHRC 315, 316-17 (Apr. 1998).
8

The S&S terminology is taken from section 104(d)(l) of the Act, 30 U.S.C.
§ 814(d)(l), which distinguishes as more serious any violation that "could significantly and
substantially contribute to the cause and effect of a . . . mine safety or health hazard."
345

at 1351. MSHA designated the violation as S&S and alleged·that it was the result of the
operator' s unwarrantable failure. Id. at 1353.
As a result of the violations, MSHA proposed civil penalties of $200,000. Id. at 1337.
Following an 8-day hearing, the judge issued his decision in which he dismissed th~
citation and found vio_lations with regard to the three orders. Id. at 1344, 1346-47, 1349-50,
1353. With regard to special findings, the judge found that the violations charged in all three
orders to be S&S. Id. at 1347, 1350-51, 1353. He also found that the violation charged in Order
No. 3109523 was the result of Consol's unwarrantable failure, but concluded that the violations
alleged in the other two orders were not unwarrantable. Id. at 1348, 1351, 1353-54. The judge
reduced MSHA' s proposed penalties to $70,000. Id. at 1354.
The Secretary and Consol filed cross appeals with the Commission, both of which were
granted.

II.
Disposition
A.

Citation No. 3109521

The citation alleges that, in violation of 30 C.F.R. § 75.301 (1991),9 Consol allowed
methane to accumulate in the production shaft, an active working of the mine, and that the
methane was ignited on March 19 when Heston employees were welding during the installation
of the 16-inch pipe. 20 FMSHRC at 1343-44; Gov't Ex. 1. The term "active workings" was
defined at 30 C.F.R. § 75.2(g)(4) (1991) as "any place in a coal mine where miners are normally

9

The cited regulation, 30 C.F.R. § 75.301 (1991), provided in relevant part:
All active workings shall be ventilated by a current of air
containing not less than 19.5 volume per centum of oxygen, not
more than 0.5 volume per centum of carbon dioxide, and no
harmful quantities of other noxious or poisonous gases; and the
volume and velocity of the current of air shall be sufficient to
dilute, render harmless, and to carry away, flammable, explosive,
noxious, and harmful gases, and dust, and smoke and explosive
fumes ....

The language of the regulation tracked section 303(b) of the Mine Act, 30 U.S.C. § 863(b). The
regulation was revised and recodified in 1996 at 30 C.F.R. § 75.321(a).
346

required to work or travel."10 The citation was designated S&S and the result of the operator's
unwarrantable failure. 11
The judge found no evidence that any person worked or traveled in the production shaft
after it was capped on March 13, 1992. 20 FMSHRC at 1344. The judge analyzed the language
of the regulation and found that it was clear. Id. The judge reasoned that "active workings"
included "any place in a coal mine" but not the areas above and below the cap. See id. (emphasis
added). Moreover, the judge also found that, even if the language of the regulation was not plain,
the Secretary's interpretation was unreasonable. Id.
The Secretary argues that her interpretation of the standard is entitled to deference. S. Br.
at 16-17. More particularly, the Secretary asserts that the definition of "active workings" is "any
place," and the dictionary definition of')>lace" includes physical surroundings or environment,
which is broad enough to encompass the area above the cap. Id. at 18-20. The Secretary argues
that it would defeat the purpose of the regulation to require that a miner has to be "in" the
production shaft before the regulation would apply, particularly given the facts of this proceeding
where miners were on top of the cap inserting pipe into the shaft. Id. at 21-25. Finally, the
Secretary argues that the occurrence of preshift examinations at the bottom of the shaft was
sufficient to support a determination that the shaft was an active working. Id. at 25-26.
In response, Consol asserts the language of the standard and the definition of"active
workings" are clear and the Secretary is not entitled to deference in interpreting them. C.
Revised Resp. Br. at 2-4, 9: Rather, Consol argues that "active workings" should be given its
ordinary meaning and considered in light of other terms in the Mine Act and its legislative
history. Id. at 5-7. Further, Consol contends that Congress, when it enacted the Federal Coal
Mine Health and Safety Act of 1969 ("Coal Act"), distinguished abandoned areas from active
workings, wi~h ventilation requirements only applying to the latter. Id. at 7-8. Consol finally
argues that the Secretary misconstrued Commission case law regarding active workings. Id. at
10-12.

The first inquiry in statutory construction is "whether Congress has directly spoken to the
precise question in issue." Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842 (1984); Thunder}3asin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute
is clear and unambiguous, effect must be given to its language. Chevron, 467 U.S. at 842-43;

10

The regulatory definition of"active workings" is taken from the Mine Act, 30 U.S.C.
§ 878(g)(4). The present definition in the regulations is identical in language to that in effect at
the time of the alleged violation. See 30 C.F.R. § 75.2 (1999).
11

Although the judge did not acknowledge in his decision that the citation charged
Consol with unwarrantable failure in committing the violation (20 FMSHRC at 1343), the
citation clearly alleged it, and the Secretary raised the judge's failure to so find in her petition for
review. S. PDR at 22.
347

accord Local Union 1261, UMWA v. FMSHRC, 917 F.2d42, 44 (D.C. Cir. 1990). In
ascertaining the plain meaning of the statute, courts utilize traditional tools of construction,
including an examination of the particular statutory language at issue, and the language and
design of the statute as a whole, to determine whether Congress had an intention on the specific
question at issue. K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988); Local Union 1261,
UMWA v. FMSHRC, 917 F.2d at 44; Coal Employment Project v. Dole, 889 F.2d 1127, 1131
(D.C. Cir. 1989).

We agree with the judge that the language of§ 75.301 and the definition of"active
workings" are clear. However, we disagree with his application of the statutory and regulatory
provisions to the facts of this case. We conclude that substantial evidence 12 does not support his
finding that no persons worked or traveled in the production shaft.
The judge found "[t]here is no evidence in this case that any person worked or traveled or
normally worked or traveled in the production shaft after the shaft was capped on Friday, March
13, 1992." 20 FMSHRC at 1344. This finding is erroneous. To the contrary, the record clearly
indicates that the shaft continued to be an active working after being capped, because miners
continued to work or travel there during installation of the dewatering pipe. Specifically, miners
continued to conduct methane and air flow tests at the bottom of the shaft on a daily basis,
including on the morning of the explosion. Tr. 1450-53, 1478-81, 1494-95. Those tests are
sufficient in and of themselves to establish that the entire shaft remained an active working up to
the time of the explosion.
Furthermore, as we explained above (see supra note 3), the so called "cap" Consol
constructed over the production shaft was designed to be used initially as a work platform, not to
seal the shaft as a cap would normally be used. See 30 C.F.R. § 75.1711-1. As even the judge
recognized, cpnstruction of the modified cap actually facilitated work in the shaft, i.e.,
installation ofthe-dewatering pipe through the 22-inch opening in the cap. 20 FMSHRC at
1349. 13

12

When reviewing an administrative law judge's factual determinations, the Commission
is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable
mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh
Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). 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. Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)).
13

We fail to understand why the Secretary adopted, without question, Consol's
characterization of the work site from which the dewatering pipe was being installed as a "cap."
348

Consol argues that finding the production shaft an active working is contrary to
Commission case law. Consol states that in Southern Ohio Coal Co., 12 FMSHRC 1498 (Aug.
1990) ("SOCCO"), aff'd mem., 940 F .2d 653 (4th Cir. 1991 ), the finding that a portion of a
tailgate entry was an "active working[] was not premised upon the conduct of regular
examinations," but rather was "based upon the fact that ... an escapeway was involved." C.
Revised Resp. Br. at 11. This is an incorrect reading of SOCCO. The Commission's decision
was actually based upon the fact that the tailgate entry "had to be maintained and inspectecf' necessitating travel through the entry- because it was an escapeway. 12 FMSHRC at 1502
(emphasis added); see also id. at 1501 (numerous references to the need for the tailgate entry to
be "maintained and examined" at least"[o ]nee a week"). SOCCO thus, in fact, actually supports
our holding that the production shaft was an active working. Here, miners were traveling to the
bottom of the shaft to take methane checks on a daily basis. 14 See also Old Ben Coal Co., 3
FMSHRC 608, 609 (Mar. 1981) (without deciding whether the "function" alone of an area of a
mine qualifies it as an active working, an area where no miners worked was found to be an active
working where it was inspected once a week, rock dusted, and designated as an escapeway).
Although four other cases Consol cites were decided by our judges, and thus have no
precedential value (29 C.F.R. § 2700.72), we note that in all four cases, our judges found that
bleeder entries were not active workings under regulations then in force providing, inter alia, that
bleeder systems "shall not include active workings." 30 C.F.R. § 75.316-2(e)(2) (1991); see Old
Ben Coal Co., 13 FMSHRC 1930, 1948 (Dec. 1991) (ALJ); Rushton Mining Co., 11 FMSHRC
1506, 1507 (Aug. 1989)(ALJ); Rochester & Pittsburgh Coal Co., 11FMSHRC1318, 1322 (July
1989) (ALJ); United States Steel Corp., 6 FMSHRC 291, 307 (Feb. 1984) (ALJ). Section
75.316-2(e)(2) was eventually replaced by more specific regulations covering bleeder entries
when MSHA revised its ventilation regulations in 1996. See 61 Fed. Reg. 9764 (1996); see, e.g.,
30 C.F.R. §§ 75.321(a)(2) (air quality requirements for bleeder entries); 75.364(a)(2) (weekly
examination r:equirements for bleeder entries). The four cases Consol cites are thus irrelevant to
the instant proceedings. 15

14

Consol also attempts to distinguish a case in which former Chief Administrative Law
Judge Paul Merlin held that a tailgate entry where miners were working to abate a "long-standing
water problem" was an active working. Consolidation Coal Co., 14 FMSHRC 590, 595-96 (Apr.
1992) (ALJ). Consol ·states that in that case, "miners normally and routinely worked in the
tailgate entry at issue." C. Revised Resp. Br. at 11. Here, miners normally and routinely traveled
to the production shaft to check for methane.
15

Consol also cites National Mining Association v. MSHA, 116 F.3d 520 (D.C. Cir.
1997), with no explanation as to its relevance aside from a reference appearing in that case to two
of the ALJ cases we have already discussed. In that decision, which was not a Mine Act
proceeding under Commission jurisdiction, the National Mining Association petitioned directly
to the court for review of several of MSHA's ventilation regulations that were finalized in 1996
-including 30 C.F.R. § 75.32l(a)(2), which the court upheld. Id. at 525-28.
349

In light of the conclusion that the production shaft was an active working, largely
undisputed evidence establishes that ventilation in the production shaft was insufficient to dilute
and render hannless methane in the shaft. In this regard, both the Secretary's expert, John
Urosek, and Consol's expert, Donald Mitchell, concluded that airflow in the production shaft had
been reduced to no more than 400 cfin, and also agreed that the airflow was insufficient to render
harmless methane being liberated into the shaft. 20 FMSHRC at 1343. Thus, the record
evidence leads to only one conclusion- that Consol violated section 75.301. See Walker Stone
Co. v. Secretary ofLabor, 156 F.3d 1076, 1085 n.6 (10th Cir. 1998) (remand unnecessary where
record as whole admits only one conclusion on issue).

We reverse the judge' s determination that section 75.301 was not violated and remand the
citation to the judge for consideration of the S&S and unwarrantable failure determinations 16 and
imposition of the appropriate penalty.
B.

Order No. 3109522

The order alleges that Consol failed to conduct methane tests at the production shaft
where Heston was performing welding operations in violation of30 C.F.R § 77.l 112(b). 17 20
FMSHRC at 1345; Gov't Ex. 2 at 1. The order further alleges that the cap on the production
shaft severely restricted ventilation into the shaft and that the mine had a known history of
methane liberation. 20 FMSHRC at 1345; Gov't Ex. 2 at 2. In addition, MSHA determined that
the violation was S&S and resulted from the operator's unwarrantable failure. 20 FMSHRC at
1345; Gov 't Ex. 2 at 1. The judge concluded that the standard required methane examinations be
made in areas within a range of likely ignition from welding, including the area beneath the cap.
20 FMSHRC at 1346. The judge further concluded that the violation was S&S but not a result of
the operator's unwarrantable failure. Id. at 1347-48.

16

Because the judge dismissed the underlying violation, he did not reach the S&S or
unwarrantable failure designation of the citation.
17

The cited regulation, 30 C.F.R.§ 77.l 112(b), provides:
Before welding, cutting, or soldering is performed in areas
likely to contain methane, an examination for methane shall be
made by a qualified person with a device approved by the Secretary
for detecting methane. Examinations for methane shall be made
immediately before and periodically during welding, cutting, or
soldering and such work shall not be permitted to commence or
continue in air which contains 1.0 volume per centum or more of
methane.

Unlike the preceding standard involving "active workings," which is defined in the Mine Act and
regulations, "areas" is not defined.
350

Consol argues the judge ignored the "regulation's clear terms." C. Br. at 17. Consol
contends that the area likely to contain methane must be the same area where welding was
performed. Id. at 17-18. Further, Consol argues that the regulation must give fair warning of
what conduct is prohibited before sanctions can be imposed. Id. at 18-19. Consol asserts that the
Secretary bore the burden of proving that she had an approved device for taking methane
examinations and that the judge erred when he placed the burden on Consol to prove the nonexistence of such a device. Id. at 19-21. Consol concludes by arguing that the S&S
determination and the $10,000 penalty should be vacated. Id. at 19. Finally, Consol asserts that
substantial evidence supports the judge's determination that the violation was not the result of
Consol's unwarrantable failure. C. Revised Resp. Br. at 14-28.
The Secretary responds that her interpretation of the standard is reasonable, furthers the
purposes of the Mine Act, and is owed deference. S. Resp. Br. at 5-8. In essence, the Secretary
argues that the standard should be interpreted to guard against the risk that was present in the
instant proceeding. Id. at 8. The Secretary asserts that Consol's efforts to ventilate the shaft and
to prevent sparks and molten metal from entering the shaft indicate that Consol was concerned
with the buildup of methane in the shaft and the hazard of ignition. Id. at 9-10. The Secretary
contends that the regulation provided fair notice of the conduct required; indeed, the Secretary
argues that Consol had actual notice of the requirements of the regulation. Id. at 11-14. The
Secretary urges rejection of Consol's impossibility or infeasibility of performance with the
regulation argument, on the ground that the regulation does not permit such a defense. Id. at 1518. Finally, the Secretary argues that substantial evidence does not support the judge's
conclusion that the violation was not the result of Consol's unwarrantable failure. S. Br. at 2641.
1.

Violation

The "language of a regulation . .. is the starting point for its interpretation." Dyer v.
United States, 832 F.2d 1062, 1066 (9th Cir. 1987) (citing Consumer Prod_. Safety Comm 'n v.
GTE Sylvania, Inc., 447 U.S. 102, 108 (1980)). Where the l~guage 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 different meaning or unless such a meaning would lead to absurd
results. See id.; Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989); Consolidation
Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993).
Here, as a threshold matter, we find clear and unambiguous the requirement of section
77 .1112(b) that "[b]efore welding ... is performed in areas likely to contain methane, an
examination for methane shall be made." 30 C.F.R. § 77.1112(b). To prove a violation of this
regulation, the Secretary must show (1) that a particular area was "likely to contain methane,"
(2) that welding was performed in that area, and (3) that no examination of the area was made.
Clearly, the area directly beneath the cap was an area "likely to contain methane." Id. The mine
liberated a high level of methane. 20 FMSHRC at 1337. Construction of the cap over the
production shaft significantly reduced air flow into the shaft. Id. at 1341. Moreover, when one
351

of the 6-inch ventilation pipes was plugged, reducing air flow to a mere 400 cfin, there was, as
the judge found based on expert testimony, "a potential for explosive concentrations of methane
to accumulate beneath the cap." Id. at 1346 (citations omitted). The fact that an explosion
occurred is proof enough that ventilation of the area beneath the cap was inadequate to dilute,
render harmless, and carry away methane being liberated in the shaft. See id. ("[t]he methane
explosion itself is prima facie proof' that methane was likely to accumulate beneath the cap). 18
The question remains, though, whether the area beneath the cap can be said to have been
within the relevant area in which welding was performed. The judge concluded that "the area
beneath the cap ... was within the area or zone affected by [the] welding." Id. We find that
substantial evidence supports this conclusion. First, we note that the operator took precautions to
guard against welding sparks and molten metal from going into the production shaft (id. at 1342),
evincing Consol's concern that the welding posed some risk of causing an ignition in the shaft.
See Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1138 (May 1984) ("the substantial
evidence standard may be met by reasonable inferences drawn from indirect evidence"). But
more importantly, we note that the I-beam supporting the dewatering pipe extended across the
production shaft (Gov't Ex. 15, Drawing 12), and also connected the area above the cap to the
atmosphere of the production shaft (Gov't Ex. 15, Drawing 1). Experts for Consol agreed with
the Secretary's position that the most likely cause of the methane explosion was the improper
grounding of the second welding machine to the I-beam (20 FMSHRC at 1346), which probably
caused arcing to occur between the pipe being welded and the I-beam. Tr. 455-57; 2156-58;
2182-83, 2355-56). Given this direct electrical link between the work area above the production
shaft and the atmosphere of the shaft below the cap, 19 we find that Consol was clearly and
unambiguously required under section 77. l l 12(b) to perform methane examinations in the area
immediately below the cap.
Consol's argument that, to prove a violation of section 77. l l l 2(b), the Secretary "must
establish that 'a device approved by the Secretary for detecting methane' was in existence
... and that the operator failed to utilize that device" (C. Br. at 19) puts the cart before the horse.
Given the very high likelihood of methane being present under the cap, a fact Consol fully
appreciated, it was up to the company to design the cap in such a way as to allow the required
methane examinations to be performed. Indeed, the judge found that Consol could have
incorporated sampling pipes into the cap (20 FMSHRC at 1347), and substantial evidence
supports the judge. In any event, the appropriate response to the lack of a device that could

18

Ammons, Bane, Moore, Pittman, and DeBlossio all testified regarding the potential for
methane in the shaft absent adequate ventilation. Tr. 435, 494, 686-87, 821, 956-57, 1723-24.
Moreover, Consol's expert Mitchell stated that, even with both air pipes open, there would have
been some areas beneath the cap with explosive concentrations of methane, and that it was
reasonable to expect methane accumulations. Tr. 2277, 2328.
19

Consol's argument that the cap separated the production shaft from the welding (C. Br.
at 17-18) is simply without merit.
352

accurately measure methane levels beneath the cap would have been to suspend welding over the
production shaft rather than blindly proceed and risk the disastrous consequences that, in fact,
occurred.

In light of the above, we affirm the judge's determination of violation and S&S
designation. 20
2.

Unwarrantable Failure

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In
Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that
unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at
2001. Unwarrantable failure is characterized by such conduct as "reckless disregard,"
"intentional misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2003-04;
Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,
Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable
failure test).
Whether conduct is "aggravated" in the context of unwarrantable failure is determined by
looking at all the facts and circumstances of each case to see if any aggravating factors exist,
such as the extent of the violative condition, the length of time that it has existed, whether the
violation is obvious or poses a high degree of danger, whether the operator has been placed on
notice that greater efforts are necessary for compliance, the operator's efforts in abating the
violative condition, and the operator's know~edge of the existence of the violation. See Cyprus
Emerald Resources Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d
42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons
Coal Co., 16 FMS.HRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261
(Aug. 1992); BethE1Jergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals,
Inc., 10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984).
These factors need to be viewed in the context of the factual circumstances of a particular case,
and some factors may be irrelevant to a particular factual scenario. But all of the relevant facts
and circumstances of each case must be examined to determine if an actor's conduct is
aggravated, or whether the level of the actor's negligence should be mitigated.

° Consol did not separately challenge the judge's S&S determination, but requested the

2

Commission reverse the judge's determination if it agreed to reverse the underlying violation.
See C. Br. at 21. Also, in light of our agreement with Consol that this violation can be decided
on the basis of the clear language of the regulation, there is no notice issue present. Further, even
if the language of the regulation were ambiguous, Consol cannot raise a notice issue because the
company failed to raise it before the judge. 30 U.S.C. § 823(d)(2)(A)(iii); see C. Post-Hearing
Br. at 54-61; C. Resp. to S. Post-Hearing Br. at 11-14.
353

The judge concluded that, while Consol was negligent in failing to measure for methane
below the cap, that negligence did not rise to the level of unwarrantable failure. 20 FMSHRC at
1348. The judge relied on four considerations: Consol could have reasonably perceived that
methane would not accumulate above the cap so that not testing would not be violative; Consol
could have perceived that the welding was to be performed in a discrete area above the cap that
separated the welding from the methane; methane examinations were in fact performed at the
bottom of the shaft; and the most likely ignition source, an electrical arc from an improperly
grounded welding machine, was not an obvious source of ignition. Id.
The judge, however, failed to fully consider all the facts and circumstances relevant to an
unwarrantable failure determination. As the judge noted, the Blacksville No. 1 Mine was a
"gassy" mine - one that emitted large quantities of methane. Id. Consol witnesses testified
extensively regarding the gassy nature of the mine and how methane, which is lighter than air,
could migrate into the shaft and accumulate under the cap. Tr. at 555, 562, 580-81 , 616, 624,
686, 691, 958, 1202, 1243-46, 1288, 1693. The judge also found that "Consol officials admitted
that they knew methane could be liberated into the production shaft." 20 FMSHRC at 1348.
Further, Consol officials were well aware of the hazards associated with methane accumulations
and welding. Tr. 481-85, 1309, 1436. Consol assistant vice-president Quesenberry even testified
that he understood the need to test for methane underneath the cap. Tr. 624-25. Nevertheless,
Consol decided to install dewatering pipe that required welding just above the shaft. By
proceeding to cover the shaft, causing inadequate ventilation, and to weld in the presence of
accumulating methane of which they were or should have been aware, Consol ignored obvious
danger that was apparent to a number of its managers.
However, corporate balkanization at Consol apparently led to a situation where officials
in one division did not know what those in another division were doing. Thus, Blacksville Mine
vice-president Ammons was not consulted on the decision by Consol's regional engineering
department to switch from threaded pipe to welded pipe. 20 FMSHRC at 1340. Ammons,
without consulting anyone in Consol's environmental quality control department or its regional
safety office, determined to utilize two six-inch ventilation pipes to ventilate the production
shaft, even though he did not know the methane liberation rate or how much air would come in
through the ventilation pipes. Id. at 1339. When Consol regional safety inspector Yerkovich
notified MSHA of the proposal to cap the production shaft, he did not notify MSHA of when the
proposed capping was to occur or that welded dewatering pipe would be installed in the shaft.
Id. at 1338. Nor did Yerkovich alert anyone in the Consol hierarchy that MSHA had not
responded to bis notification of the early capping. Accordingly, Consol proceeded to construct
the cap without hearing back from MSHA. Id. Finally, Consol regional engineering employees
DeBlossio and Baird, who were assigned to the project, had no experience in underground mine
ventilation. Id. at 1341. Indeed, DeBlossio was not even aware that the Blacksville Mine
liberated large quantities of methane. Id.
The confusion resulting from this inadequate communication and coordination was itself
a contributing _cause of the explosion. There was a serious lapse of judgment among Consol
354

,.

personnel in not ordering or ensuring that methane checks were made underneath the production
shaft cap. See Rock ofAges Corp., 20 FMSHRC 106, 115 (Feb. 1998) (a foreman's failure to
search for undetonated explosives when such explosives had been uncovered in the past evinced
a reckless disregard for the hazards associated with misfires), aff'd in pertinent part, 170 F.3d
148 (2nd Cir. 1999).
The factors on which the judge relied in finding no unwarrantable failure are at odds with
findings that he made in regard to the underlying violation or are contrary to the Commission's
unwarrantable failure test. The first factor that the judge considered - the failure to measure
methane accumulations above the cap - is not relevant because the underlying violation
concerns the failure to measure methane below the cap. Similarly, the fact that welding was
occurring above the cap is not dispositive, since the heart of the alleged violation deals with the
effects the welding had on the atmosphere in the production shaft via the electrical connection
between the welding area and that atmosphere. Further, Consol's assertedly reasonable and good
faith belief that testing for methane at the bottom of the shaft was adequate to comply with the
standard was undercut by its own witness, Quesenberry, who acknowledged the need to test for
methane under the cap, as well as at the bottom of the shaft. Tr. 624-25. Finally, arcing
associated with electrically energized equipment is, as the Secretary points out (S. Br. 31-32), a
well-recognized ignition source for methane in mines. See, e.g., Eastover Mining Co., 4
FMSHRC 123, 123 (Feb. 1982) (recognizing that electrical arcing presents a potential ignition
source).
In light of the foregoing discussion, we vacate the judge's unwarrantable failure
determination and remand the matter to him for reconsideration in light of the facts and
circumstances outlined above.

C.

Order No. 3109523

This order charged Consol with an S&S and unwarrantable violation of 30 C.F.R.
§ 75.316 (1991)21 on the ground that, because major ventilation changes resulted from capping
the production shaft, Consol was obligated to revise its mine ventilation plan to reflect those
changes and obtain the prior approval of the MSHA District Manager. 20 FMSHRC at 1348;
Gov't Ex. 3 at 1. The judge rejected Consol's contention that such approval was not required in
this instance. 20 FMSHRC at 1349. While the judge recognized that, prior to March 1992,
section 7 5.316 approval for capping a mine shaft was not required in MSHA District 3 when the
capping occurred during mine sealing, he found this case clearly distinguishable because the

21

At that time, section 75.316 tracked section 303(0) of the Act, 30 U.S.C. § 863(0), and
provided in relevant part: "[a] ventilation system and methane and dust control plan and
revisions thereof suitable to the conditions of the mining system of the coal mine and approved
by the Secretary shall be adopted by the operator .... " Similar requirements can now be found
in 30 C.F.R. § 75:370 (1999).
355

Blacksville No. 1 production shaft was not sealed, but rather remained partially open to allow for
the ongoing work of fabricating the dewatering pipe and for continued intake ventilation. Id.
The judge also found that an agent of Consol, Yerkovich, was specifically informed by
ventilation specialist Palmer that revision of the ventilation plan to reflect capping the production
shaft would require MSHA approval, thereby placing Consol on notice of its obligations in this
instance. Id. at 1349-50. The judge refused to credit Yerkovich' s denials that he was told prior
approval for capping the production shaft was required. Id. at 1350. The judge found the
violation to be S&S and of high gravity. He also found that Yerkovich was directly and
specifically told of the necessity of obtaining MSHA approval for the capping job, and that
Consol deliberately disregarded that directive. Finally, the judge determined that Consol's
violation of section 75.316 resulted from its unwarrantable failure. Id. at 1350-51.
1.

Violation

Consol argues the judge erred in discrediting Yerkovich' s trial testimony that MSHA
ventilation specialist Strahin told him approval was not necessary. C. Br. at 22-23. According to
Consol, that testimony, contrary to the judge's finding, is not inconsistent with Yerkovich's
earlier deposition testimony, given his explanation that he did not have the opportunity at the
deposition to testify regarding his conversation with Strahin. Id. at 23. Consol also contends that
substantial evidence does not support the judge's conclusion regarding differences in previous
Consol capping projects, because Consol witnesses testified that, prior to the mine explosion,
approval was not required for capping projects in which neither the mine nor the shaft at issue
was sealed completely. Id. at 23-24.
The Secretary maintains the judge correctly analyzed testimony in finding that Yerkovich
was informed by Palmer that approval of the capping project was necessary. S. Resp. Br. at 2324. The Secretary also argues that to the extent there may have been prior occasions in which
Consol, without receiving MSHA approval, partially sealed shafts in District 3 while miners
remained underground, there is no evidence that MSHA's ventilation specialists in that district
were aware of such projects, much less acquiesced to them. Id. at 24 n.16.

r:

There is no dispute that-the changes in ventilation resulting from the dewatering project
were such that, according to the terms of section 75.316, Consol was obligated to revise its
ventilation plan to show those changes and get MSHA's approval before undertaking the
project.22 As the judge noted, ''when the extant ventilation plan was approved, the accompanying
22

We note that both of Consol's arguments in support of its contention that the judge's
finding of violation should be reversed - that Yerkovich was told by Strahin that approval was
not necessary in this instance and that approval had not previously been required in District 3 for
Consol capping projects - are essentially estoppel arguments. In general, the Commission does
not recognize estoppel as a valid defense to a citation or order. See King Knob Coal Co., 3
FMSHRC 1417, 1421-22 (June 1981). While Consol cites no reason why we should depart from
356

-

letter sent to Consol stated that '(y]ou are reminded that all chariges or [revisions] to the
ventilation plan must be submitted and approved before they are implemented."' 20 FMSHRC at
1349 (quoting Gov't Ex. 26 at 1). In addition, consistent with that directive, the March 3, 1992,
letter from Consol informing the MSHA District Manager of the capping project described it as a
"proposed air change" at Blacksville No. 1. Gov't Ex. 27.
Moreover, the judge, in concluding that Consol was specifically made aware of the need
for MSHA approval in this instance, credited the testimony of Palmer and Strahin over
Yerkovich's conflicting testimony. See 20 FMSHRC at 1349-50. A judge' s credibility
determinations are entitled to great weight and may not be overturned lightly. Farmer v. Island
Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co., 3 FMSHRC
2767, 2770 (Dec. 1981). The Commission has recognized that, because the judge has an
opportunity to hear the testimony and view the witnesses, he is ordinarily in the best position to
make a credibility determination. In re: Contests ofRespirable Dust Sample Alteration
Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719
(11th Cir. 1984)), aff'd sub nom. Secretary ofLabor v. Keystone Coal Mining Corp., 151 F.3d
1096 (D.C. Cir. 1998). Nonetheless, the Commission will not affirm such determinations if there
is no evidence or dubious evidence to support them. Consolidation Coal Co., 11FMSHRC966,
974 (June 1989).
In this instance there is sufficient evidence to support the judge's credibility
determinations. Both Palmer and Strahin were clear in their testimony that, with respect to the
production shaft project, neither had acquiesced to anything less than the prior approval required
by section 75.316. Tr. 1106 (Palmer), 1865-66 (Strahin). In addition, while being deposed,
Yerkovich agreed with the statement that Palmer and Strahin "indicated to you in no uncertain
terms that they thought that you needed prior approval." Gov't Ex. 51 at 83 (deposition excerpts)
(emphasis added). In these circumstances, the judge, who had the opportunity to view all three
witnesses while each gave his trial testimony, clearly was justified in refusing to credit
Yerkovich' s claim at trial that Strahin had told him that prior approval was not necessary. Tr.
1256-57, 1294-95.23 Substantial evidence therefore supports the judge's conclusion that Consol
was informed by a representative ofMSHA that approval was necessary before the project could
proceed.

that practice here, we nevertheless address its arguments.
23

Consol gives no citation to the record in support of its claim that Yerkovich explained
at trial that he did not have an opportunity at his deposition to elaborate regarding the
conversation he had with Strahin. See C. Br. at 23. Yerkovich did testify at trial that, in general,
given the way some of the deposition questions were phrased, his answers were not entirely
complete. However, he did not indicate that this testimony specifically applied to the subject of
what he was told regarding the need for approval under section 75.316, even when he was given
an opportunity to.do so. Tr. 1304-06.
357

As for Consol's claim that the judge erred in distinguishing previous Consol capping
projects in MSHA District 3, we do not agree. The testimony cited by Consol (C. Br. at 24; C.
Reply Br. at 10-11) fails to establish that MSHA knew of a previous instance in which Consol
had capped a shaft and conducted welding over a hole in the cap while there were men
underground in that portion of the mine.
The judge's de.termination that Consol violated section 75.316 is affirmed.
2.

Unwarrantable Failure

Consol contends that, in finding the violation unwarrantable, the judge failed to consider
or discuss extensive evidence establishing that, based on Consol's prior dealings with MSHA
and the presence of two MSHA inspectors at the mine while the production shaft was being
capped and the dewatering pipe installed, Consol's personnel had a reasonable, good faith belief
that approval from MSHA for ventilation changes resulting from the capping project were not
required in this instance. C. Br. at 24-30. The Secretary answers that because the violation
occurred despite Palmer's warning to Yerkovich regarding the need for prior approval, Consol's
decision to move ahead without that approval constitutes aggravated conduct. S. Resp. Br. at
25-27. The Secretary also maintains that the mere contemporaneous presence at the mine of two
inspectors is insufficient to excuse Consol's failure to comply with section 75.316, given that
neither inspector was a ventilation specialist responsible for approving changes to ventilation
plans. Id. at 28-29.
It was not error for the judge to refuse to accord Consol shelter from the unwarrantable
failure charge on the basis of evidence of its good faith and reasonableness. 24 Consol bases the
reasonableness of its belief that approval was not required here on prior MSHA treatment of
Consol District 3 capping projects, as well as circumstances surrounding this project and
Consol's notification to MSHA. Regardless of whether the evidence Consol cites establishes the
reasonableness of its belief in the inapplicability of section 75.316 to a project such as this, the
fact remains that Yerkovich was told by an MSHA representative that prior approval was
necessary in this instance. Moreover, Yerkovich did not remain silent about this conversation
but reported it to his superiors at Consol. See 20 FMSHRC at 1350-51.

In light of this evidence, we agree with the judge that Consol's failure to obtain MSHA
approval, despite being put on notice that approval was required in this instance, demonstrates
that Consol's conduct was aggravated and therefore unwarrantable. See Rochester & Pittsburgh,
13 FMSHRC at 194 (intentional misconduct, whether by commission or omission, is aggravated
conduct). Consequently, we affirm the judge's unwarrantability determination.
24

In general, the Commission will not find a violation unwarrantable where it is shown
to have resulted from the operator's mistaken but good faith, reasonable belief that it was in
compliance with applicable law. See Florence Mining Co., 11FMSHRC747, 753-54 (May
1989).
358

D.

Order No. 3109524

This order charged that Consol, during the capping of the production shaft and
installation of the dewatering pipe, violated 30 C.F.R. § 75.322 (1991), 25 and that the violation
was S&S and due to the Consol's unwarrantable failure. 20 FMSHRC at 1351; Gov't Ex. 4. The
Secretary alleged two separate grounds of violation. Specifically, she alleged that, on March 13,
while Consol had properly withdrawn its personnel from the mine to evaluate changes in
ventilation caused by construction of the cap, the operator violated the regulation by permitting
miners to return underground without evaluating ventilation changes within the production shaft.
20 FMSHRC at 1351; Gov't Ex. 4 at 1.
The order alleged that a second material change to the split of air ventilating the
production shaft occurred the following week, when the plugged dewatering pipe was inserted
into the 22-inch hole in the cap and the remaining portion of that hole was covered. 20
FMSHRC at 1351 ; Gov 't Ex. 4 at 2. According to the order, when the subsequent closing of one
of the two intake ventilation pipes in the cap is also taken into account, ventilation in the shaft
was reduced from approximately 7 ,500 cfin to around 400 cfm. 20 FMSHRC at 1351; Gov't Ex.
4 at 2. Miners remained working both underground and above during the change in ventilation,
and the split of air ventilating the production shaft was not evaluated following the change. 20
FMSHRC at 1351; Gov't Ex. 4 at 2.
The judge rejected Consol's argwnent that section 75.322 did not apply. Relying on the
testimony of Ammons, the judge found the production shaft intake could be properly
characterized as a "split of air." 20 FMSHRC at 1352 n.2. Focusing solely on the reduction in
airflow in the covered production shaft from 7,500 cfm to 400 cfm caused by insertion of the
dewatering pipe and closing one of the ventilation pipes, the judge found that reduction
materially affi~cted the split of air ventilating the production shaft. Id. at 1352-53. Because it
was undisputed that the reduction of airflow within the production shaft affected the safety of

25

At the time of the explosion, section 75.322 tracked section 303(u) of the Mine Act, 30
U.S .C. § 863(u), and provided that:
Changes in ventilation which materially affect the main air current
or any split thereof and which may affect the safety of persons in
the coal mine shall be made only when then the mine is idle. Only
those persons engaged in making such changes shall be permitted
in the mine during the change. Power shall be removed from the
areas affected by the change before work starts to make the change
and shall not be restored until the effect of the change bas been
ascertained and the affected areas determined to be safe by a
certified person.
The regulation was revised and recodified in 1996 at 30 C.F.R. § 75.324.
359

persons in the mine (id. at 1352), the judge concluded that Consol was required to follow the
procedures set forth in section 75.322, and violated the standard when it failed to do so. Id. at
1353.
While the judge found the section 75.322 violation to be S&S and of high gravity, he
concluded it was not shown to be the result of Consol's unwarrantable failure. 20 FMSHRC at
1353-54. The judge based his unwarrantability determination solely on his finding that, without
the testimony of the four dead miners, the Secretary could not show whether Consol officials
failed to notify those working on the project of the importance of keeping the two ventilation
pipes open for intake air, or whether the dead miners were otherwise aware of that importance of
doing so. Id. at 1354.
1.

Whether the Production Shaft Intake Is a Split of Air Under Section
75.322

We note at the outset that the judge did not address the change in ventilation of the
production shaft on March 13 caused by closing of the shaft. This does not affect our
consideration, however, as Consol's appeal of the finding of violation is based on an issue which
applies to all changes in ventilation the Secretary alleges in the order occurred without
compliance with section 75.322.
Specifically, Consol urges reversal of the finding of a violation on the ground that the
judge's conclusion that the intake air in the production shaft was a "split of air" under section
75.322 is factually and legally erroneous, and unsupported by substantial evidence. C. Br. at
31-33. According to Consol, the judge ignored evidence establishing that the production shaft
intake air did not contribute to the main air current ventilating the underground workings of the
mine. Id. at.31-32; C. Reply Br. at 13-14. fu response, the Secretary maintains that there is
overwhelming support in the record, in the form of admissions by Consol officials, for the
judge's conclusion that the production shaft intake constituted a "split of air" under section
75.322. S. Resp. Br. at 30-33.
Section 75.322 applies to changes materially effecting any split of a mine's main air
current. While the term "split'.'. is undefined in the regulations, the standard's use of the term is
consistent with the industry usage. The Dictionary ofMining, Mineral, and Related Terms
defines "air split" as "[t]he division of the main current of air into two or more parts." American
Geological Institute, Dictionary ofMining, Minerals and Related Terms 12 (2d ed. 1997).
We note that Consol's claim that the production shaft was not a "split of air" is contrary
to the testimony of some of its highest officials. According to Ammons, air from the production
shaft was going to the mine's active workings, and both Ammons and Quesenberry conceded that
the production shaft intake qualified as a split of the main air current. Tr. 648, 669, 749.

360

Moreover, Consol's claim that section 75.322 was inapplicable to the capping project is
contradicted by its own actions. The record reflects that Consol treated the March 13 covering of
the shaft as a change in ventilation subject to section 75.322, and attempted to comply with at
least some of the regulation's requirements. 20 FMSHRC at 1340-41; Tr. 736-37, 1634. Indeed,
Yerkovich cited Consol's compliance with the regulation that day as a reason why MSHA prior
approval of the capping was not required under section 75.316. Tr. 1298-1300.
In addition, the production shaft was one of only five primary entry points for intake air in
the mine. Gov't Ex. 13 (Blacksville No. 1 Mine Post-Accident Mine Ventilation System
Investigation) at 5-6; Gov'_t Ex. 26 (data included in last ventilation plan). Five surface-mounted
exhaust fans drew air into the production shaft and four additional shafts elsewhere in the mine
that were all intake entries or had intake compartments. Gov't Ex. 13 at 5-6. Before the
production shaft was covered, air flowed through the shaft at nearly 200,000 cfin. Id. at 27, 28;
Gov't Ex. 26. This was a greater rate than two of the other intake shafts and constituted
approximately 17% of the total amount of air entering the mine. Gov't Ex. 13 at 28. At that
time, no more than 34% of the intake air flowed through any one shaft. Id. Furthermore, the
production shaft and the nearby service shaft, also known as the portal shaft, were situated and
designed so that any reduction in air flow in the production shaft was compensated by an increase
in air flow through the service shaft. Tr. 648-49, 735-36, 1654, 1689; Gov't Ex. 13 at 18-23.
Consol's recitation of evidence that ventilation changes that occurred once the production
shaft was covered did not materially affect ventilation in the mine misses the point. C. Br. at
32-33. By its terms, section 75.322 was not triggered by only those ventilation changes that
would "materially affect" mine-wide ventilation or the ventilation of active workings, but rather
was triggered by any ventilation change that would ''materially affect" any split of a mine's main
air current. 26 Moreover, by twice providing that the actions it required operators to take were
limited in geographic scope to those "areas" affected by the change in ventilation, the regulation
clearly connotes that the ventilation changes to which it refers include those changes that have
less than mine-wide effects. Consequently, we reject Consol's invitation to overturn the judge's
finding that the air ventilating the production shaft was an air.split to which section 75.322
applied. 27

26

To the extent that Consol's appeal can be read as an attack on the judge's
determination that the ventilation changes that occurred while the dewatering pipe was being
installed "materially affect[ed]" the production shaft air split, we reject any such argument, as
that determination is supported by substantial evidence. The judge correctly calculated and took
into account that a reduction in air from 7,350 cfin to 400 cfin is a decrease of over 94%. 20
FMSHRC at 1353. Moreover, as the judge acknowledged (id.), Consol's expert Mitchell
conceded that such a reduction would result in a material affect on ventilation. Tr. 2306-09.
27

We note that Consol had the opportunity to present expert testimony that section
75.322 was not at all applicable in this instance, but did not do so. .Its expert, Mitchell, who was
the assistant chairman of the Mine Enforcement and Safety Administration committee that wrote
361

In light of the record evidence and the plain meaning of the term "split of air," substantial
evidence supports the judge's conclusions that the production shaft intake was a split of air to
which the requirements of section 75 .322 applied, and that the changes in ventilation that
occurred during installation of the dewatering pipe materially affected that split of air. We
therefore affirm the judge's finding that Consol violated section 75.322.
2.

·unwarrantable Failure

The Secretary urges reversal of the judge's negative unwarrantability finding on the
ground that the judge failed to consider an extensive body of evidence which demonstrates that
Consol's failure to ascertain the effect on ventilation of the production shaft of the activities that
surrounded capping the shaft constituted an unwarrantable failure to comply with the standard.
S. Br. at 42-49. The Secretary also contends that the judge erred in failing to take into account
the reason why the four dead miners were unavailable to testify, and that he should have shifted
to Consol the burden of showing what the miners knew regarding the need to keep the ventilation
pipes in the cap open. Id. at 49-55.
Consol maintains that, assuming arguendo that it violated section 75.322, the judge's
negative unwarrantability determination is supported by substantial evidence. C. Revised Resp.
Br. at 29. Consol further contends that any violation of section 75.322 cannot be deemed
unwarrantable because it reasonably relied on guidance provided by MSHA that any ventilation
change under 9,000 cfm is not subject to the requirements of the regulation. Id. at 29-31.
While we are refusing Consol's request to overturn the judge's finding of a section
75.322 violation, that does not end the question of the extent of the violation. This is a relevant
issue because of the judge's conclusion that the violation he found was not unwarrantable.
However, as mentioned, the judge did not completely address the question of the extent of the
violation posed by the order. The judge failed to address whether section 75.322 was violated in
connection with the March 13 completion of construction of the cap over the production shaft.
Below, the parties disputed whether Consol's actions that day in evaluating the change of air.
flow within the production shaft - an area "affected" by the change in ventilation and therefore
subject to evaluation -were sufficient to comply with section 75.322's requirement that the
safety of the effects of the change be ascertained. See S. Post-Hearing Br. at 62-63; C.
Post-Hearing Br. at 52-53. The judge never resolved this dispute, and thus never addressed

,.

:·.

the Part 75 regulations following the passage of the 1969 Coal Act, testified at length regarding
whether the post-capping changes to the ventilation in the production shaft "materially
affect[ed]" the shaft's ventilation as section 75.322 uses that term. However, he never disputed
that the regulation applied to the shaft intake as a main air current or air split. Tr. 2247-60.
362

whether Consol violated section 7 5 .322 on March 13 and, if so, whether the violation that day
was unwarrantable. 28

fu light of his failure to completely address the extent to which Consol violated section
75.322, the judge's negative unwarrantability finding is fundamentally inadequate.
Consequently, we vacate that finding and remand for a more complete consideration of the
evidence and issues raised by the allegation of unwarrantability in connection with the order
alleging a section 75.322 violation. See Mid-Continent Resources, Inc., 16 FMSHRC 1218,
1222-23 (June 1994) (remand for judge to adequately address evidentiary record). On remand,
the judge should resolve whether section 75.322 was first violated on March 13.
As for the issue the judge found dispositive on the question of unwarrantability - the
closing of one of the ventilation pipes - on remand it would only be necessary for the judge to
reach the issue of whether the ventilation pipe closing resulted in an unwarrantable violation of
section 75.322 if the record evidence does not establish that an unwarrantable violation of the
regulation occurred before that point.29 Moreover, unlike the judge, we do not consider the
testimony of the dead miners a necessary prerequisite to finding Consol's actions unwarrantable,
for, as the judge found, there is evidence in the record that superintendent Levo not only
facilitated the cutting of one of the ventilation pipes, but also at one point witnessed that it had
been closed. 20 FMSHRC at 1342.

28

The judge's failure to resolve the issue may be the result of believing that the Secretary
was alleging that the March 13 and 17 air changes had to be considered cumulatively. See 20
FMSHRC at 1353. However, it is undisputed that the capping of the shaft by itself resulted in a
material effect on the air in the production shaft, and the citation plainly alleges that on March 13
"Consol did not evaluate the change to the air split ventilating the Production shaft itself before
allowing miners to ·return to work." Gov't Ex. 4 at 1.
29

We note that much of the reduction in ventilation that occurred during installation of
the dewatering pipe was due not to the closing of a ventilation pipe, but to the insertion of the
dewatering pipe into the cap. The Secretary's expert Urosek estimated that, at certain times
during the installation process, there would have been less than 800 cfin of air ventilating the
shaft even if both ventilation pipes were open, because the dewatering pipe, the plates that fit
around it, and the Thermoglass cloth would almost entirely seal off the 22-inch diameter hole
providing most of the ventilation to the shaft. Tr. 2071-72; Gov't Ex. 13 at 21-23. Consol did
not dispute this figure, which represents a decrease of over 89% from the amount of air that was
entering the shaft immediately before installation of the dewatering pipe began. Unlike with the
closing of the ventilation pipe, there is no dispute that Consol should have been aware of the
reduction in airflow resulting from installation of the dewatering pipe, as it knew the dewatering
pipe was being installed through the cap and that the Thermoglass cloth was being used to
prevent sparks from falling into the shaft. Tr. 699-700 (testimony of Ammons).
363

In determining unwarrantability on remand, the judge should address all of the factors the
Commission considers relevant to the question of unwarrantability, as discussed at page 14,
supra. There may be a number of such factors present here with respect to the section 75.322
violation, including the extensiveness of the violative condition (once the judge has completely
addressed the allegations in the order) and the degree of danger posed by the violation.30 We also
again note the relevancy of Consol supervisory personnel participating in various aspects of the
project but not communicating with each other.
As part of his unwarrantable failure analysis, the judge should also consider whether a
defense was established by Consol. Consol claims that it did not comply with section 75.322
because it was relying on the 9,000 cfm figure then contained in MSHA's Program Policy
Manual ("PPM') as the minimum air reduction necessary to trigger application of section
75.322. See 20 FMSHRC at 1353; Resp't Ex. 52. The judge considered Consol's claim in
concluding that there was a violation (20 FMSHRC at 1353),31 but made no finding regarding the
good faith and reasonableness of the claim in light of the facts. Such a finding is necessary in the
context of an unwarrantable failure charge. See Wyoming Fuel Co., 16 FMSHRC 1618, 1628
(Aug. 1994) ("reasonableness" of belief determined by surrounding circumstances).

E.

Penalties

The Secretary seeks review of the two $10,000 penalties the judge ass-essed in connection
with each of the two orders he found not to be unwarrantable, a reduction from the $50,000 the
Secretary sought for each violation. S. Br. at 55-61. Because we have vacated and remanded
those negative unwarrantability determinations, the penalties assessed for the two orders are also
vacated and remanded. On remand, once the judge has decided whether the violations were
unwarrantable, we direct him to reassess the penalties consistent with findings made on each of
the six statutory penalty criteria set forth in section 11 O(i) of the Mine Act. We also direct the

30

While no miners were near the bottom of the production shaft when the explosion
occurred, the equipment that remained at or near that area was severely damaged. Tr. 2056-57,
2115-16. It was stipulated that "[o ]vercast, cribs, stoppings, and the rotary dump in the
underground areas [of the mine] within 100 feet of the shaft were ... damaged by the force of the
explosion." Jt. Ex. 1 at 3 (Jt. Stip. 14); see also Gov't Exs. 20-21 (post-explosion underground
maps). Consol also acknowledged that it knew that a fire in the production shaft caused by the
welding above it would put the miners who were underground at risk. Tr. 1648 (testimony of
Charles Bane).
31

Below, Consol claimed that the PPM was dispositive on the issue of whether, under
section 75.322, a ventilation change ofless than 9,000 could be considered to "materially affect"
a main air current or air split. C. Post-Hearing Br. at 48-51. The PPM, however, while it can
provide guidance on an issue, has been found by the Commission to lack legal effect and thus
cannot be used against the Secretary as grounds to estop a finding of violation. See King Knob, 3
FMSHRC at 1419-22.
364

'·.

judge to consider our previous holdings that a judge's assessment of a penalty may not
"substantially diverge" from the penalty proposed by the Secretary without sufficient
explanation. See Unique Electric, 20 FMSHRC 1119, 1123 n.4 (Oct. 1998); Sellersburg Stone
Co., 5 FMSHRC 287, 293 (Mar. 1983); see also Dolese Bros. Co., 16 FMSHRC 689, 695 (Apr.
1994). The judge's initial decision lacked any such explanation.

III.
Conclusion
For the foregoing reasons, we: ( 1) reverse the judge's determination that section 75.301
was not violated, and remand for a determination of whether that violation was S&S and due to
Consol's unwarrantable failure, and a penalty assessment; (2) affirm the judge's determination
that Consol violated section 77. l l 12(b), and vacate and remand his determination that the
violation was not unwarrantable and his penalty assessment for further consideration consistent
with this opinion; (3) affirm the judge's determination that Consol violated section 7 5 .316 and
that the violation was unwarrantable; and (4) affirm the judge's determination that Consol
violated section 75.322, and vacate and remand his determination that the violation was not
unwarrantable and his penalty assessment for further consideration consistent with this opinion.

•
Marc Lincoln Marks, Commissioner

Distribution
David J. Hardy, Esq.
Maris E. McCambley, Esq.
Jackson & Kelly
P.O. Box 553
Charleston, WV 25322

L. Joseph Ferrara, Esq.
Jackson & Kelly, PLLC
2401 Pennsylvania Avenue, N.W.
Washington, D.C. 20037
Jerald S. Feingold, Esq.
W. Christian Schumann, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Judith Rivlin, Esq.
United Mine Workers of America
8315 Lee Highway
Fairfax, VA 22031
Robert M. Vukas, Esq.
Consol Inc.
Consol Plaza
1800 Washington Road
Pittsburgh, PA 15241
Administrative Law Judge Gary Melick
Federal Mine Safety & Health R_eview Commission
Office of Administrative Law Judges
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

·:·

366

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

March 28, 2000

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

v.

Docket No. EAJ 96-3

CONTRACTORS SAND AND
GRAVEL, INC.

BEFORE: Jordan, Chairman; Riley, Verheggen, and Beatty, Commissioners

ORDER
BY THE COMMISSION:
In this proceeding under the Equal Access to Justice Act, 5 U.S.C. § 504 et seq. (1996)
("EAJA"), Contractors Sand and Gravel, Inc. ("Contractors"), sought recovery of attorney's fees
and expenses following the decision in Contractors Sand and Gravel, Inc., 18 FMSHRC 384
(Mar. 1996) (ALJ), in which Contractors prevailed over the Mine Safety and Health
Administration ("MSHA") in a proceeding under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (1994) ("Mine Act" or "Act"). Administrative Law Judge August
Cetti ordered the Secretary to pay attorney's fees and expenses because her position in the merits
proceeding was not substantially justified. Contractors Sand and Gravel, Inc., 18 FMSHRC
1820 (Oct. 1996) (ALJ). The Secretary filed a petition for review with the Commission.
Following the direction for review, Contractors challenged the Commission's jurisdiction to
review the judge's award. On review, the Commission ruled against Contractors on the issue of
jurisdiction, and a majority further concluded that the Secretary's position in the underlying Mine
Act adjudication was substantially justified, thereby reversing the judge. Contractors Sand and
Gravel, Inc., 20 FMSHRC 960, 967-76 (Sept. 1998) (Chairman Jordan and Commissioners
Marks and Beatty). The dissenting Commissioners held that the Secretary's position was not
substantially justified. Id.at 978-85 (Commissioners Riley and Verheggen).
367

Contractors subsequently petitioned for review of the Commission's decision to the
United States Court of Appeals for the District of Columbia Circuit. The court affirmed the
Commission's disposition of the jurisdictional issue. Contractor's Sand and Gravel, Inc. v.
FMSHRC, 199 F.3d 1335, 1339-40 (D.C. Cir. 2000). The court agreed with the dissenting
Commissioners that the Secretary's position before the administrative law judge in the Mine Act
proceeding lacked sub~tantial justification because the Secretary's interpretation and application
of the regulation at issue had no reasonable basis in law or fact. Id. at 1340-42. The court
ordered that the award of fees and expenses granted by the administrative law judge be restored,
and remanded the case to the Commission for further proceedings to determine the amount of an
award to compensate Contractors for pursuing review before the court. Id. at 1343.
Subsequently, the Secretary and Contractors each filed with the court a motion for
clarification. The Secretary requested that the court clarify its decision to permit the Commission
to consider on remand several issues that it did not reach because it reversed the judge. Those
issues included whether the judge properly awarded Contractors attorney's fees at an hourly rate
that was higher than the maximum rate specified in EAJA, and properly ordered interest on the
award that accrued as a result of Contractors' failure to pay its bills for attorney's fees on time.
Contractors requested that the court clarify that on remand the Commission should award, in
addition to fees and expenses accrued in pursuing court review, those attorney's fees and
expenses that were incurred in defending the administrative law judge's decision before the
Commission.
The court issued an order in which it granted Contractors' motion and denied the
Secretary's. Contractor's Sand and Gravel, Inc. v. FMSHRC, No. 98-1480, slip op. at 1 (D.C.
Cir. Mar. 3, 2000). With regard to the Secretary, the court stated that the issues she raised in her
motion "were not raised before the court at any time" and therefore the motion could not be
granted. Id. · Wi.th regard to Contractors' motion, the court stated that it was not the court's intent
"to foreclose such fees and expenses otherwise awardable." Id. (citation omitted).
".~

.·'

·=·

368

'·

Pursuant to the court's orders, we reinstate the judge's original EAJA award and remand
the case to the judge for further proceedings on attorney's fees and expenses incurred in
defending the judge's decision before the Commission and those incurred in seeking review of
the Commission's decision before the court.

369

Distribution
Ronald E. Meisburg, Esq.
Heenan, Althen & Roles
1110 Vermont Avenue, N.W., Suite 400
Washington, D.C. 20005
C. Gregory Ruffennach, Esq.
Ruffennach Law Offices
450 East 3rd Avenue
Durango, CO 81301
Jack Powasnick, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd., Suite 400
Arlington, VA 22203
Administrative Law Judge August Cetti
Federal Mine Safety & Health Review Commission
Office of Administrative Law Judges
1244 Speer Blvd., Suite 280
Denver, CO 80204

370

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

March 7, 2000

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 99-314-M
AC. No. 24-01889-05515

v.
Montgomery Crusher
MONTGOMERY CONSTRUCTION,
Respondent
DECISION
Appearances: Gary L. Grimes, Conference and Litigation Representative, U.S. Department of
Labor, Denver, Colorado, on behalf of Petitioner;
Larry J. Bowser, Office Manager, Montgomery Construction, Hilger, Montana,
on behalf of Respondent.
Before

Judge Zielinski

This case is before me on a Petition for Assessment of Civil Penalty filed by the Secretary
of Labor against Montgomery Construction pursuant to section 105 of the Federal Mine Safety
and Health Act of 1977, the "Act," 30 U.S.C. §§ 815. The petition alleges a single violation of
the Secretary"s mandatory health and safety standards and proposes a civil penalty of $55.00. A
hearing was held !n Lewistown, Montana on February 8, 2000. For the reasons set forth below, I
affirm the citation and assess a penalty of$25.00.

The Evidence
Montgomery Construction operates a crusher in Hilger, Montana. Three employees
normally work at the site. Richard Bowser, the crusher superintendent, controls the crusher and
the other two individuals operate loaders feeding the crusher and doing stockpiling. On March 3,
1999, David Huston, an inspector employed by the Department of Labor's Mine Safety and
Health Administration (MSHA), conducted an inspection of Montgomery's crusher. He was
accompanied by Richard Bowser. Both individuals observed a Terex 70C, front end loader in
operation with a non-functional back-up alarm. Inspector Huston issued Citation No. 7903260,
charging Montgomery with a violation of30 C.F.R. § 56.14132(a), a mandatory health and safety
standard applicable to surface metal and non-metal mines. Inspector Huston did not observe any
other infractions.

371

Section 56.14132 provides, in pertinent part:

§ 56.14132

Homs and backup alarms

(a) Manually-operated horns or other audible warning devices provided on selfpropelled mobile equipment as a safety feature shall be maintained in functional
condition.
The citation issued by Inspector Huston stated:
The backup alarm installed on the Terex 70C, 5 yard front end loader in operation
at the mine site was not maintained in a functional condition. The backup alarm
did not give any sound as the front end loader is put into reverse motion. The
operator of the front end loader did have an obstructed view to the rear from the
cab location of the loader. The warning system shall be maintained to warn of the
reverse motion of the mobile equipment. No foot or other mobile equipment was
observed in the vicinity where the loader was being operated. The chance of an
incident resulting in injury to an employee was unlikely.

In assessing the gravity of the violation, inspector Huston concluded that it was not
significant and substantial and that it presented an unlikely probability of a fatal injury affecting
one person. He rated the operator's negligence as "moderate" because he determined that the
operator of the equipment should have noticed that the backup alarm was non-functional and
taken steps to have it repaired prior to the inspection. Richard Bowser testified that he conducts
daily pre-shift inspections of the crusher and mobile equipment and that he did so on March 3,
1999. When he inspects the mobile equipment he performs a visual inspection, starts the engine
and checks the operation of the backup alarm by putting the transmission into reverse. The
backup al~ sounds when the reverse gear is engaged, regardless of whether the equipment is
actually moving backward. He testified that he inspected the Terex 70C loader on the morning
of March 3, 1999,.that the backup alarm was functioning at the time, and that records of his
inspections, which he discussed with inspector Huston, did not note an inoperable backup alarm.
Huston testified that he did not recall having the discussion, although he did review pertinent
records prior to commencing a physical inspection of the premises. Richard Bower also
confirmed that the backup alarm was not functioning at the time of the inspection, which
commenced around 2:00 p.m. Upon examination, it was found that a wire leading from the cab
of the loader to the backup alarm had become disconnected. The wire was re-connected and
secured and the violation was terminated shortly after the citation was issued.

Findings of Fact and Conclusions of Law
The relevant facts are largely undisputed. I credit Mr. Bowser's testimony and find that
he inspected the loader that morning and that the backup alarm was working at that time. The
parties agree that the backup alarm was not functional at the time of the inspection, which was
based upon observations of the loader being operated in reverse. There was testimony by
372

Richard Bowser that it is difficult for the operator of the loader to hear the backup alarm when
the loader's engine is running at or above half-throttle. However, the alarm sounds as soon as the
reverse gear is engaged, an action that would normally be taken a low engine speeds.
The testimony and exhibits introduced by Respondent establish that it is cognizant of
safety issues and has attempted to achieve and maintain compliance with applicable health and
safety standards. Exhibit R-1 includes a letter dated October 15, 1999, from MSHA
congratulating Montgomery Construction for receiving "the Joseph A. Holmes Safety
Association, Certificate of Honor, for 50,425 manhours without incurring a lost time injury."
Respondent's primary objection to the citation and proposed penalty goes more to the procedures
followed by MSHA and the philosophy behind the basic enforcement scheme of the Act.
Respondent complains that it is subject to varying interpretations of the standards by different
inspectors and objects to the civil penalty enforcement mechanism, questioning whether MSHA
benefits from civil penalty collections. It also complains about the burden imposed by the
inspection process and responded to the proposed assessment by indicating that it would pay the
proposed assessment in this case when it's "invoice" in the amount of $24,906.08, for "down
time created by MSHA inspections" was paid. It has sought legislative action from it's
representative in the United States Senate, proposing that a "partnering" relationship be
established, similar to that used in federally funded highway projects, in lieu of the civil penalty
mechanism.
These issues are, of course, beyond the jurisdiction of the Commission and the
undersigned Administrative Law Judge, as Respondent understands. Nevertheless, it has raised
them in this proceeding, in an attempt to further it's efforts to change the Act's enforcement
scheme. The only issues properly before me are whether Respondent committed the violation as
alleged and, if so, the appropriate civil penalty to be imposed.
I find ~hat Respondent violated 30 C.F.R. § 56.14132(a) on March 3, 1999. The front end
loader was being operated with a non-functional backup alarm. While the alarm may be difficult
for the operator to hear when the engine is being operated at half throttle or more, a properly
operating alarm will sound when the vehicle's transmission is placed into reverse. Shifting is
not typically done at high engine speeds and the operator should have been aware that the alarm
was not functioning and taken steps to have it repaired. There is no evidence that the crusher
superintendent, or any other sup~rvisory employee of Montgomery, was negligent or otherwise at
fault. However, it is well settled that under the Act mine operators are subject to a strict liability
standard, i.e. an operator is liable for a civil penalty, even though it's supervisory employees are
without fault with respect to a violation of a mandatory health and safety standard. Asarco, Inc.
v. FMSHRC, 868 F.2d 1195 (I01h Cir 1989)(aff'g 8 FMSHRC 1632) and cases cited therein. The
degree of fault of the operator is, however, taken into account in determining the amount of any
civil penalty to be imposed. Id.

Civil Penalty Assessment
The Secretary has proposed a penalty of $55.00 for the violation at issue. However, it is
373

the judge's independent responsibility to determine the appropriate amount of penalty in
accordance with the six criteria itemized in§ 1 IO(i) of the Act. 29 C.F.R. § 2700.30; Sellersburg
Stone Co. v. Fi'v!SHRC, 736 F.2d 1147, 1151 (7 1h Cir. 1984); Wallace Brothers, Inc.,
18 FMSHRC 481, 482-83 (April 1966).
Montgomery Construction's crusher operation is a small business entity. It has been cited
for eight violations of mandatory health and safety standards in the twenty-four months preceding
the violation at issue here. It has attempted, in good faith, to comply with mandatory health and
safety standards and it's efforts have been very effective in avoiding lost-time injuries. I find that
inspector Huston correctly assessed the gravity of the violation and that, while any potential
injury would have been very serious, the probability of injury was unlikely because of the
absence of pedestrian and vehicular traffic in the area where the loader operated. The parties
have stipulated that Montgomery demonstrated good faith in rapidly abating the violation.
Montgomery does not contend that the civil penalty proposed here would threaten it's ability to
remain in business. I do not agree with inspector Huston's assessment of negligence. I find that
Montgomery Construction was not negligent with respect to this violation.
Upon consideration of these penalty criteria, I find that a penalty of $25.00 is appropriate
for the violation.

ORDER
Citation No. 7903260 is AFFIRMED. Montgomery Construction is ORDERED to pay
a civil penalty of $25.00, within 30 days of the date of this decision.

~
- ./ ~ · . ·e
,,,. ..... ...____f/L , ...... ,........ - -~
·-Ii~ It,
·1

.···

,-

--~- ......

Michael E. Zjelinski
Administratiye Law Judge

Distribution:
Gary L. Grimes, Conference and Litigation Representative, U.S. Department of Labor, Mine
Safety and Health Administration, P. 0. Box 25367 DFC M/NM, Denver, CO 80225-0367
(Certified Mail)
Larry J. Bowser, Office Manager, Montgomery Construction, 2255 US Highway 191, Hilger, MT
59451 (Certified Mail)
/mh

374

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

March 10, 2000
TEMPORARY REINSTATEMENT PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of Raymond Ramon,
Complainant

Docket No. KENT 2000-88-D
MSHA Case No. PIKE CD-99-04
Mine No. 10
Mine ID No. 15-17977

V.

EAGLE COAL COMPANY, INC.,
Respondent
ORDER OF TEMPORARY REINSTATEMENT
Appearances:

Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor,
Nashville, Tennessee, on behalf of Complainant;
Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Jones, Paintsville,
Kentucky, on behalf of Respondent.

Before:

Judge Melick

This case is before me pursuant to Section 105(c)(2) of the Fed~ral Mine Safety and
Health Act of.1977, 30 U.S.C. § 801 et seq., the "Act," and Commission Rule 45, 29 C.F.R.
§ 2700.45, upon the application of the Secretary of Labor to temporarily reinstate Raymond
Roman to his former position with the Eagle Coal Company Inc., (Eagle). The Secretary alleges
in her application that Mr. Roman had been employed by Eagle as a continuous miner operator
and that on or about August 7, 1999, he was constructively discharged because representatives of
Eagle believed he had been cooperating with the Secretary's investigation under Section l lO(c)
of the Act. The Secretary seeks to have Roman temporarily reinstated to the position he held
immediately before his constructive discharge or to a similar position at the same rate of pay and
with the same or equivalent duties.
Section 105(c)(1) of the Act prohibits discrimination against miners for exercising any
protected right under the Act. The purpose of the protection is to 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 result oftheirparticipation." S. Rep. No. 181, 9•h Cong., 151 Sess. 35
(1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 9th Cong.
2nd Sess., Legislative History ofthe Federal Mine Safety and Health Act of 1977 at 623 (1978).
375

The scope of a temporary reinstatement proceeding is. narrow, being limited to a
determination by the judge as to whether a miner's discrimination complaint is frivolously
brought. Secretary ofLabor on behalfofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305,
1306 (August 1987), aff'd sub nom. Jim Walter Resources Inc. v. FMSHRC, 920 F.2d 738 (11th
Cir. 1990). It is "not the judge's duty ... to resolve .. . conflict[s] in testimony at this
preliminary stage of proceedings." Secretary ofLabor on behalfofAlbu v. Chicopee Coal Co.,
Inc., 21 FMSHRC 717, 719 (July 1999). At a temporary reinstatement hearing the judge must
determine ''whether the evidence mustered" by the miner to date establishes that his complaint is
nonfrivolous," not whether there is sufficient evidence of discrimination to justify permanent
reinstatement." Jim Walter Resources, 920 F.2d at 747.
The "not frivolously brought" standard contained in section 105(c)(2) of the Act has been
equated with a "reasonable cause to believe standard." See Brock v. Roadway Express, Inc., 481
U.S. 252 (1987). It has also been equated with "not insubstantial" and "not clearly without
merit." Jim Walter Resources, 920 F.2d at 747. The legislative history of the Mine Act defines
the "not frivolously brought standard" as whether a miner's complaint "appears to have merit."
S. Rep. No. 181, 9th Cong., pt Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor,
Committee o Human Resources, 9th Cong., 2"d Sess. Legislative History ofthe Federal Mine
Safety and Health Act of 1977 at 624-25 (1978).

At hearings held March 6, 2000, Mr. Roman testified that he first began working in coal
mines in 1993. He last worked at the Eagle No. 10 Mine on August 7, 1999, as a continuous
miner operator. Over the previous two years there had been what Roman characterized as
excessive dust at the face - - so much so that he was unable to see. As a result, Roman and, at
other times, two other miners complained to Foreman Tony Armstrong and asked that a curtain
be hung to remedy the problem. According to Roman the curtain was never hung and the
operator in fact never complied with the requirements to hang curtains.
Roman also maintains that after he acknowledged to Eagle officials that he had met with
an investigator for the Mine Safety and Health Administration (MSHA) he was harassed. He was
purportedly told by Armstrong not to tell the truth to the MSHA investigator about the
company's failure to use dust pumps. Armstrong purportedly reminded Roman two or three
times a week that he did not want to go to jail, presumably for dust sampling violations.
Roman claims he was also harassed by management because, when the continuous miner
was down for repairs, he was required to perform such undesirable tasks as shoveling the belt and
picking up garbage. Before his complaint about excessive dust and before the operator learned of
his meeting with the MSHA investigator he claims he was permitted to assist in repairing the
continuous miner rather than shovel the belt or pick up garbage.
Finally, on Au~st 7, 1999, Roman observed, after the "breaker" kept "knocking out,''
that there was a wire on the cat head presumably illegally and unsafely jumping the circuit
breaker. Testifying that he was tired of the unsafe conditions and presumably believing, based on
376

:~

past experience, that it would be futile to complain, he decided to quit. As he left the mine he
told only the outside man, Earl Cook, that he was quitting.
A miner's work refusal is protected by the Act under conditions he reasonably and in
good faith believes to be hazardous. See Miller v. FMSHRC, 687 F2d 194, 195-96 (71h Cir.
1982). While the miner must ordinarily communicate his reasons for a work refusal to the
operator, that is not critical when such notice would be futile. Secretary v. Northern Coal Co.
4 FMSHRC 126, 133 (1982). A constructive discharge is protected under the Act if conditions
faced by the miner are so intolerable that a reasonable person would feel compelled to resign.
Simpson v. FMSHRC, 842 F.2d 453, 463 (D.C. Cir. 1988). Recognizing that it is not the judge's
duty to resolve the conflicts in testimony at this preliminary stage of proceedings and noting that
the Secretary's theories of liability herein are "not clearly without merit," I find, based on the
evidence presented, that the Secretary's application for temporary reinstatement is not frivolously
brought.

ORDER
Eagle Coal Company, Inc., is hereby ordered to immediately reinstate Raymond Roman
to the position of continuous miner operator or to a similar position at the same rate of pay and
with the same or equivalent duties assigned to him before his departure from Eagle Coal
Company, Inc., on August 7, 1999.

Distribution: (Certified.Mail)
Joseph B. Luckett, Esq., Office of the Solicitor, U .S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215
Michael J. Schmitt, Esq., Wells, Porter, Schmitt & Jones, 327 Main Street, P.O. Drawer 1767,
Paintsville, KY 41240-1767
\mca

377

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

March 3, 2000
SECRETARY OF LABOR,
MlNE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. VA 99-8-M
A. C. No. 44-06803-05508
Adco Land Corp No. 1

VIRGINIA SLATE COMPANY,
Respondent
DECISION
Appearances: M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor,
Arlington, Virginia, for the Secretary;
V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Richmond, Virginia, for
the Respondent.
Before:

Judge Weisberger

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor ("Secretary") alleging that Virginia Slate Company ("Virginia") violated
various mandatory safety standards set forth in Title 30 of the Code of Federal Regulations.
Pursuant to notice, a hearing in this matter was held in Buckingham, Virginia.
Briefs were due to be filed three weeks after receipt of the transcript. The transcript was
filed on November 16, 1999. On December 6, 1999 the Secretary filed a motion for extension of
time to file its brief. The motion was not opposed. On October 21, 1999 an order was entered
allowing the parties until Feb~ary 15, 2000 to file their briefs. On February 15, 2000 the
Secretary filed a Post-Hearing Brief On February 28, 2000 Respondent filed a Brief and
Argument.
Findings of Fact and Discussion
I. Order No. 7711660

A. The Secretazy' s Evidence
On June 2, 1998, Rickey Joe Horn, an MSHA inspector, inspected Virginia's open pit
slate operation. In the course of his examination, he observed that the tail pulley for the No. 1
378

conveyor belt, located on the crusher, which was not in operation, 1 was not guarded. According
to Hom, he asked Roy Terry, the foreman, why the guard was off, and the latter informed him
that the guard was off because the crusher motor was being worked on. Hom testified that he
also spoke to two crusher operators who informed him that the crusher had been worked on for
the past 2 weeks, but that it had been run during this time in the condition observed by him
(Hom) and that Terry had told him that the mine had been in production for the past week. In
this connection, Leroy Williams, who was a crusher operator in 1998, stated that a stock pile at
the site on the day of the inspection contained the quantity of material produced in "a full days
run." (Tr. 201).
According to Hom, ·the pulley was only 2 feet above the ground, and because it was
unguarded, there was nothing to prevent a person from walking into it. He described the ground
around the pulley as being rocky, and consisting ofloose material. According to Hom, if a
person would trip on this material and fall into the pulley, a fatality would probably result.
According to Hom, V. Cassel Adamson, Jr., Virginia's President, told him he did not know how
long the guard had been off
Hom issued an order alleging a violation of 30 C.F.R. § 56.1417(a), and opined that the
violation was significant and substantial inasmuch as two employees work all day in the area of
the tail pulley, and that it was reasonably likely that an injury that would be at least permanently
disabling, would have resulted upon inadvertent contact with the pulley. He also opined that the
violation was as the result of Virginia's unwarrantable failure.
Williams indicated that the cited tail pulley did not have any guard "at the time leading up
to when the inspection took place" (Tr. I, 148). He testified that the crusher had guards on it
when it was in operation, but the guards were removed a few weeks prior to the inspection. He
indicated that '\:Yhen crusher was being repaired, the motor was test-fired, but he did not recall if
the guards were in place. Later on in his testimony, he indicated that when the "engine~' was
tested, the guards were in place.
B. Discussion
1. Violation of30 C.F.R. § 56.14107(a)
Section 56.14107(a) as pertinent, provides as follow: "[m]oving machine parts shall be
guarded to protect persons from contacting gears, sprockets, chains, drive, head, tail, and takeup
pulleys, fly wheels, couplings, shafts, fans blades, and similar moving parts that can cause
injury."
According to Hom's testimony the tail pulley at issue when observed by him on June 2,

1
/ If the hopper is not in operation, the conveyor belt can be placed in operation as it has a

separate power source.
379

did not have any guard. This testimony was not impeached, nor was it contradicted by Virginia's
only witness, the V. Cassel Adamson, Jr., its President. Nor did Virginia contradict or impeach
Horn's testimony that the tail pulley was located approximately 2 feet above the ground.
Accordingly, I accept Horn's testimony that on June 2, the tail pulley was not guarded to prevent
persons from contacting it. I also find, based upon Horn's uncontradicted testimony that contact
with the moving tail pulley can cause an injury. It appears to be Virginia's argument, in essence,
that it was not in violation on June 2, as the tail pulley was not in operation. However, the plain
meaning of the wording of section 56.14107(a), supra, does not provide for any exception to the
requirements set forth therein if the moving part to be guarded is not in operation. Further,
Horn's and Williams' testimony establishes that the tail pulley, which is powered by an electric
motor, was capable of being operated at a time when the crusher was inoperable. For all these
reasons, I find that Virginia did violate section 56.14107(a), supra.
2. Significant and substantial
A "significant and substantial" violation is described in section 104(d)(l) of the Mine Act
as a violation "of such nature as could significantly and substantially contribute to the cause and
effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814(d)(l). A violation is
properly designated significant and substantial "if based upon the particular facts surrounding the
violation there exists a reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission explained its
interpretation of the term "significant and substantial" as follows:
, In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary of Labor must
prove: (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.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125, 1129 (August 1985), the
Commission stated further as follows:

We have explained further that the third element of the Mathies formula "requires
that the Secretary establish a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury." U.S. Steel Mining Co.,
6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance
with the language of section 104(d)(l), it is the contribution of a violation to the
cause and effect of a hazard that must be significant and substantial. U. S. Steel
380

Mining Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U S. Steel Mining
Company, Inc., 6 FMSHRC 1573, 1574-75 (July 1984).
As set forth above, the evidence establishes the first two elements set forth in Mathies,
supra, i.e., that Virginia violated a mandatory safety standard, and that the violative condition
contributed to the hazard of a miner becoming injured upon coming in contact with a moving tail
pulley. In analyzing the .third element of Mathies, supra, i.e., whether there was a reasonable
likelihood of an injury producing event, i.e., contact with a moving tail pulley, the continuation
of normal mining operations must be taken into an account. In essence, according to
Adamson, Jr., in normal operations the tail pulley at issue is guarded, and the guard had been
removed because the crusher was inoperable, and was being worked on. I reject this testimony as
being too speculative to predicate a finding that, with continued normal mining operations, there
would not have been a reasonable likelihood of contact with the tail pulley, as it would have been
guarded. Further, taking into account the nature of the ground conditions in the area of the tail
pulley, consisting of rocky loose material which would have created a stumbling or tripping
hazard, the location of the tail pulley approximately 2 feet above the ground, and the fact, as
testified to by Hom, that two crusher operators work in the area, I find that the third element of
Mathies, supra, has been met. In addition, Virginia did not impeach or contradict Hom's
testimony, that should a miner have contacted the unguarded tail pulley, it was reasonably likely
that a permanently disabling injury would have resulted. I thus find that it has been established
that the violation was significant and substantial.
3. Unwarrantable Failure
According to Hom, in essence, Terry and the two crusher operators has told him that the
crusher had been operated for the past 2 weeks in an unguarded condition. The Secretary did not
call Terry to te.stify, nor did the Secretary indicate why Terry was not called. Hence, an
inference might be drawn that Terry's testimony would not have been helpful to the Secretary's
case. Moreover, the.only crusher operator to testify, Leroy Williams, indicated that there was no
guard at the tail pulley "at the time leading up to the inspection"(Tr. Vol I, 148), but he did not
testify that it had been run without a guard. There is no evidence that a guard was not in place
prior to the time the crusher, and the operation of the entire plant, including the belts at issue, had
been shut down approximately 2 weeks prior to June 2. According to Hom's testimony, a stock
pile that was in existence June 2, consisted of a quantity of material produced in one full day of
operation. It appears to be the Secretary position that the stock pile evidences the fact that the
plant was in operation, and the tail pulley at issue was in operation during the 2 weeks period
when it was not guarded. I find this argument to be speculative, and not supported by the record.
I take cognizance of Hom's testimony that James Carter, a crusher operator, had told him that he
(Carter) was told by the foreman to operate the crusher without the guards being in place.
However, not much weight was accorded this hearsay testimony, as Hom did not indicate where
or when this conversation took place. Nor was it corroborated by Williams, the other crusher
operator, who did testify. In contrast, I observed Adamson's demeanor and found his testimony
credible that, from May 10, 1998, through June 1, 1998, the plant was not in operation, was not

381

producing any material and that no belts were in operation, because the conveyor was being
worked on. I also find his testimony credible that only late in the afternoon on June 1, did the
plant operate, in order to test the crusher, and only six buckets of material were processed. Also,
I accept his uncontradicted testimony that Virginia had decided to make sure that all guards be in
place prior to the startup of the normal operations, but before this task could be performed, Horn
arrived at the site to commence his inspection.
Within the above context, I find that Virginia's actions regarding the violative conditions
did not reach the level of aggravated conduct, and hence did not constitute an unwarrantable
failure. (c.f., Emery Mining Corp., 9 FMSHRC 1997 (1987)).
4. Penalty
Inasmuch as the violative condition could have resulted in a permanently disabling injury
or fatality, I find that the level of gravity of the violation was relatively high. For the reasons set
forth above, (I.(B.)(3.)), I conclude that the level of Virginia's negligence to have been moderate.
The violative condition was abated in a timely fashion. There is no evidence in the record that
imposition of a penalty would have any adverse affect on Virginia's ability to remain in
operation. Also there is no evidence in the record that any penalty herein should be mitigated by
the size of Virginia's operation. Taking all these factors into account, as set forth in section
1IO(i) of the Act, as well as Virginia's history of violations, I find that a penalty of $300.00 is
appropriate.

II. Order No. 7711661

Jn hi~ inspection of June 2, Horn observed that there was no protective device for the Vbelt drive, and the pulleys for the feeder. The drive motor was located approximately 3 feet
above ground level. Horn issued an order under section 56.14107(a), supra. Virginia did not
contradict or impeach Horn's testimony regarding the conditions observed by him, but adduced
Adamson's testimony to the effect that normally the belt drive at issue was located above the
reach of miners working in the area. I thus find, based upon the Horn's testimony that on June 2,
as observed by him, the V-belt drive at issue was not guarded and was within approximately
3 feet above the ground. For the reasons as set forth above, (I.(B.)(2.)), I find that this condition
presented a hazard to miners of contacting moving machinery. I thus find that Virginia did
violate section 56.14107(a), supra. Also, for the reasons set forth above, (l.(B.)(2.), I.(B.)(3.)), I
find that the violation was significant and substantial, but not the result of Virginia's
unwarrantable failure. For essentially for the same reasons set forth above, (I.(B.)(4)) I find that
a penalty of $300.00 is appropriate.
ill. Citation No. 7711663
On June 2, Horn observed that the tail pulley for the No. 2 belt, which was located about

382

2 Yz feet above the ground level, was not guarded. Virginia did not impeach Hom's testimony
regarding his observations, nor did it adduce evidence to contradict or rebut his observations.
Virginia's evidence relating to the existence of the violative condition consisted of Adamson's
testimony that the areas at issue had usually been bolted by perforated steel material considered
to be an area guard. Since Virginia did not rebut or impeach or contradict Hom's testimony
regarding the conditions observed by him on June 2, I find, that Virginia did violate
section 56.14107(a), supra.
I accept Hom's testimony, that the violation was not significant and substantial inasmuch
as a injury of a reasonably serious nature was not reasonably likely to have occurred. Essentially
for the reasons set forth above (1.(B.)(3.)), and based upon Adamson's testimony that I found
credible that the guard at issue had been removed to clean the area, I find that the violation was
not the result of Virginia's unwarrantable failure (c.f. Emery, supra). I find that although a
reasonably serious injury was not reasonably likely to have occurred, should an injury have
occurred as a result of the violation, it could have been of a serious nature. Thus, I find that the
gravity of the violation was relatively high. Considering the additional factors set forth in section
1 lO(i) of the Act, as set forth above, (I.(B.)(4.)), I find that a penalty of $300.00 is appropriate.
IV. Citation No. 7711665
On June 2, 1998, the motor, which ran the crusher, was operated by separate clutch and
throttle hand levers. There were no guard rails or catwalks provided to access these levers. The
means of accessing these levers, was by walking on an I-beam, approximately 6 inches wide, and
located approximately 6 feet above the ground. According to the uncontradicted testimony of
Hom, a person walking on the I-beam while operating the motor, could loose his balance and
suffer an injury. Horn cited Virginia under 30 C.F.R. § 56.11001 which provides that "[s]afe
means of access shall be provided and maintained to all working places."
Virginia did not impeach or contradict Horn's testimony, and I accept it. Accordingly, I
find that on June 2, there was no safe means of access provided to a working place, i.e., the
location of the levers to operate the crusher. Accordingly, I find that Virginia violated
section 56.11001, supra.
According to Williams, he had to access the levers by walking on the I-beam twice a day.
Considering this testimony, as well as the width of the I-beam, and its location above a rocky
surface, I find, that within this context it has been established that the violation was significant
and substantial (See Mathies, ~).
According to Horn, it was "plainly visible"(Tr. Vol I, 82) that there were no railings or
catwalks providing access to the control levers. However, the only evidence the Secretary
adduced regarding the length of time that the violative condition had existed, consisted of
Williams' testimony. Williams indicated that when he first started to work at the plant, he asked
the foreman, Roy Terry, why there was no hand rail on the crusher, and Terry said that he did not

383

know. Not much weight was accorded this hearsay testimony, as it was not corroborated. Also,
the Secretary did not indicate why it had not called Terry to testify.
Williams testified that the means of access to the controls as depicted in government
exhibit 20, had been in that condition for 2 months or less prior to the date of the inspection (Tr:
Vol. I, 175). However, he also indicated that he thought the access platfonn was taken down a
week or so prior to thefospection, but that he could not remember, and was not sure (Tr. Vol. I,
178). He indicated that the plant was in operation just part of the week prior to June 2 (Tr. Vol.
I, 180). I find Williams' testimony unclear, and can not predicate any findings on his testimony
regarding the length of time the crusher had operated without safe access.
On the other hand, I observed that the demeanor of Adamson, and found his testimony to
be credible that the crusher was not in operation in the period from May 10 through June 1, and
that after the new motor in the crusher was tested for 10 minutes on June 1, it was then shut
down and instructions were given not to run it again until either the controls were shifted to the
side of the crusher that had a catwalk, or additional catwalks were installed. Within this
framework, I find that it has not been established that Virginia's actions herein amounted to
aggravated conduct, and thus do not constitute an unwarrantable failure (see Emery).
I find that the level of gravity of the violation was relatively high, inasmuch as a serious
injury could have resulted. For the reasons set forth above, I find that the level of Virginia's
negligence to have been no more than moderate. My analysis of the remaining factors set forth in
Section 1IO(i) of the Act is set forth above (l.(B.)(4.)). I find a penalty of $300.00 appropriate
for this violation.
V. Order No. 7711666
Hom testified that a berm was missing for 20 feet along the west side of an elevated
roadway leading to the dump. He indicated that there was a 15 to 20 foot drop-off. He issued an
order alleging a violation of 30 C.F.R. § 56.9300 which provides as follows: "[b]erms or guard
rails 'shall be provided and maintained on the bail.ks of roadways where a drop-off exists of
sufficient grade or depth to cause a vehicle to overturn or endanger persons and equipment."
Virginia did not impeach, contradict, or rebut Hom's testimony, and accordingly I accept it.
Based upon Hom's testimony, I find that, on June 2, 1998, a berm was missing for approximately
20 feet on the bank of the roadway where there existed a drop off of approximately 15 to 20 feet
would have endangered persons in a vehicle using the roadway. Accordingly, I find that Virginia
did violate section 56.9300(a), supra.
According to Hom, the violation was significant and substantial, because trucks do use
the roadway, and if such a vehicle would overturn, fatal injuries could result. The Secretary has
not adduced any evidence regarding the slope, physical condition of the surface of the roadway,
the width of the roadway, how often it was traversed, whether the roadway was used for two way
traffic, and the_-condition of the trucks traveling the roadway. Within this context, I find that it

384

...~

has not been established that an injury producing effect was reasonably likely to have occurred. I
thus find that it has not been established that the violation was significant and substantial (see,
Mathies, fil!lll}!).
According to Hom, Adamson ill, told him that he was responsible for checking the area
at issue, that Virginia had started using a front-end loader the week prior to June 2, and that he
did not realize that the drop off was that high. Horn concluded that the violation was as the result
of Virginia's unwarrantable failure, since Virginia knew of the violative condition, and did
nothing about it. Williams testified that since February 1998, a front-end loader has been used to
load the hopper. On the other hand, Adamson testified that from March 1997 when operations
commenced, until June 1, 1998, he only saw the excavator feeding the crusher. He indicated that
normally the excavator was used to load the hopper, but that on June l, the front-end loader was
used the load the hopper for about 10 minutes.
I find the Secretary's evidence inadequate to specifically establish how long a period of
time prior to June 2, the area in question has been used as roadway. More importantly, the
Secretary failed to establish for how long a period prior to June 2, there was no berm along the
bank for approximately 20 feet. Within this context, I find that it has not been established that
Virginia's actions amount to aggravated conduct. Thus I find that it has not been established that
the violation was the result of Virginia's unwarrantable failure (see, Emery, supra).
I find that should a vehicle have gone off the road due to the lack of a berm a reasonably
serious injury could have resulted. Accordingly, I find that the gravity of the violation was
relatively high. For the reasons set forth above, I find that it has not be established that
Virginia's negligence was more than moderate. I find that the violation was abated in a timely
fashion. Additionally, taking into account the remaining factors set forth in section 11 O(i) of the
Act, as discuss,ed above (I.(B.)(4.)). I find that a penalty of $200.00 is appropriate.
VI. Order 7711667
According to Horn, there were no bumper blocks or any other impeding devices to
prevent a front-end loader loading the hopper from running into the hopper, hitting a rock, or
overturning. He issued a section..104(d)(1) order alleging a violation of 30 C.F.R. § 56.9301
which provides that "[b]erms, bumper blocks, safety hooks, or similar impeding devices shall be
provided at dumping locations where there is a hazard of overtravel or overturning."
Virginia did not impeach or contradict Horn's testimony that there were no bumper
blocks or any impeding devices at the hopper dumper location. Nor did it impeach or rebut
Hom's testimony that there was a danger of overturning. Accordingly, I find that it has been
established that Virginia did violate section 56.9301, supra.
According to Hom, the violation was significant and substantial because it was
reasonably likely that ifthe front-end loader continued to use the dumping point, the vehicle
385

would overturn, hit rocks, or run into the side of the hopper. However, he did not explain the
bases for his conclusion. Nor does the record contain any facts to support such a conclusion.
Accordingly, I find that it has not been established that the violation was significant and
substantial.
The evidence adduced by both Parties regarding the issue of unwarrantable failure was
essentially the same as that adduced regarding Order No. 771166. Hence, for the reasons set
forth above (V., infra), I find that the violation herein was not the result of Virginia's
unwarrantable failure.
Essentially, for the reasons set forth above (V., infra), I find that a penalty of $200.00 is
appropriate.
VII. Order 7711668
According to Hom, on June 2, he asked the operator of the Case 584 fork lift to test the
manual horn and the automatic reverse horn, and they did not work. He issued an order alleging
a violation of30 C ..F.R. § 14132(a) which provides as follows: "[m]anually-operated horns or
other audible devices provided on self-propelled mobile equipment as a safety feature shall be
maintained in a functional condition."
Virginia did not impeach Hom's testimony. Adamson testified that the cited vehicle, at
the time of the inspection, was not provided with any manual horn. However, he did not present
any evidence to contradict Hom's testimony that the automatic reverse horn was not operable.
Hence, based upon Hom's testimony, I find that Virginia did violate section 56.14132(a), supra.
Adamson testified that the operator of the fork lift sits high above the ground, has all
around visibility, and can see behind him by using a rear mirror. Virginia did not impeach or
rebut Horn's testimony that the fork lift was being operated inside a building where there is foot
traffic. Within the framework of this evidence, I find it has been established that the violation
was significant and substantial (see Mathies, supra).
Adamson testified that-the fork lift had not been cited in the two previous inspections,
and that he was not aware that the horn was not operational. However, on the other hand, Hom
testified that he spoke to the operator of the fork lift who told him that the horn and backup alarm
had not worked for several weeks. There is no evidence that the fork lift operator had
communicated the existence of this defect to any Virginia's managers. Thus, there is no
evidence that Virginia's conduct reached the level of aggravated conduct (see, Emery, supra).
Within the context, I find that it has not been established that the violation was the ~esult of
Virginia's unwarrantable failure.
I find that the level of gravity of this violation was relatively high, inasmuch as a serious
injury could h.a ve resulted should a person not have been warned of the fork lift backing up, and

386

thus could have sustained a serious injury. For the reasons set forth above, I find that it has not
been established that the level of Virginia's negligence was more than moderate. Taking all the
remaining factors of section 11 O(i) of the Act into account, I conclude that a penalty of $300.00
is appropriate.

Vill. Order 7711669
Hom testified that the left section of the two-piece seatbelt in a R-22 Euclid haul truck
was missing. Virginia did not impeach Hom's testimony. Hom issued an order alleging a
violation of30 C.F.R. § 56.1413l(a).2
Adamson testified that when he drove the truck in early May 1998, both halves of the
seatbelt were in place. However, Virginia did not adduce any evidence to contradict Hom
regarding his observation on June 2. Accordingly, I find that Virginia did violate section
56.14131(a), supra.
Hom testified that truck was driven on a elevated roadway to and from the pit. He opined
that an accident would have been reasonably likely to have occurred, should the truck have lost
its brakes, or hit something, and that a fatality would have resulted. Accordingly Hom concluded
that the violation was significant and substantial. Virginia did not impeach this testimony nor did
it offer any evidence to rebut it. Hence, within this frame work I find that the violation was
significant and substantial (see, Mathies,~·
According to Hom, Terry had told him that after the truck was delivered 3 weeks prior to
June 2, he did not check it for safety defects. Also, Hom testified that Adamson III had told him
that he drove it prior to its being put in service. Roy Lee Green, a former truck driver for
Virginia, testified that he had driven the truck almost every day prior to the inspection, and that it
had just one side of a seatbelt. On cross-examination, he stated that he had driven the truck for
3 weeks without a seatbelt. He indicated that he reported the lack of a full seatbelt to Terry who
told him that "he would get it straight. But ... he didn't do nothing about it" (sic) (Tr. Vol II,
224).
Adamson testified that when he drove the truck in early May 1998, when he had
purchased it, both halves of the seatbelt were in place. He also testified that he had told Terry to
check it out before it was put in service, that a couple of days later, he asked Green, who was
driving it, how it was and he said it was okay, that his (Adamson's) son drove it and said it was
okay, and that the preshift reports of the truck indicated that it was satisfactory. I accept
Adamson's testimony that he neither knew nor reasonably should have known that the left side of
the seatbelt was missing on June 2, and prior thereto. However, Virginia did not rebut or

2
/ Section 56. 14131(a) provides that "[seatbelts shall be provided and worn in haulage

trucks."
387

impeach Horn's testimony that Terry had told him that he did not check it. Nor did Virginia
impeach or rebut Green's testimony that he had reported the lack of a complete seatbelt to Terry,
but that the latter did not do anything about it. Within the context, I find that Virginia's actions
constituted aggravated conduct, and hence I find that the violation resulted from its
unwarrantable failure (see Emery, supra).
I accept Horn .testimony, inasmuch as it was not impeached or rebutted, that if the truck
would have rolled over, the operator would have been thrown out of the cab, due to the lack of
seatbelt. Accordingly, I find that the gravity of the violation was relatively high. Also, for the
reasons set forth above, I find that the level of Virginia's negligence was relatively high.
Considering also the remaining factors set forth in section 11 O(i) of the Act, I find that a penalty
of $600.00 is appropriate.
IX. OrderNo. 7711674
According to Horn, on June 2, he observed two compressed gas cylinders that were
standing unsecured in a scale house. He indicated that although they were capped, they could fall
over and injure someone. He issued an order alleging a violation of 30 C.F.R. § 56.16005 which
requires that compressed gas cylinders be secured in a safe manner.
Virginia did not rebut or impeach Horn's testimony, and accordingly, I accept it. I thus
find that Virginia did violate section 56.16005, supra.
According to Horn, Adamson ill told him that he had placed the cylinders inside the scale
house, and that he knew that instead they should have been placed in a storage area, and that he
knew he was at fault. Also, according to Horn's testimony, Virginia had been cited in the past
for this same type of violation. Virginia did not rebut or impeach this testimony, and I accept it.
Within this framework, I find that the violation was as the result of Virginia's aggravated
conduct and thus constituted an unwarrantable failure (see Emery, supra).
I find that the gravity of this violation was only moderate, inasmuch as Hom testified that
should the cylinders fall over as a consequence of not having been secured, and it could cause an
injury that would that would result in restricted duty. For the reasons set forth above, I find that
the level of Virginia's negligence to have been relatively high. Considering the remaining factors
set forth in section 1 lO(i), supra, I find that a penalty of$300.00 is appropriate.
X. Citation No. 7711685
According to Hom, on June 10, 1998, he provided the driver of the R-22 Euclid haul
truck with a calibrated noise dosimeter, and the driver kept it on for 8 hours. Hom testified that
the dosimeter indicated, after proper conversion from percentage to decibel, a decibel reading in
excess of 90. Hom issued a citation alleging a violation of 30 C.F.R. § 56.05050, which, in
essence, provides that exposure for 8 hours to more than 90 decibels is not permissible. Virginia
388

did not rebut or impeach Hom's testimony, and accordingly, I accept it. I find on the basis of this
testimony that Virginia did violate section 56.05050, supra.
According to Hom, continued exposure of the truck driver to this level of noise over a
long period of time would cause the employee to start to loose his hearing, and that this injury is
permanently disabling. Virginia did not rebut or impeach this testimony, and accordingly, I
accept. Within this framework I find that the violation was significant and substantial (see,
Mathies, supra.
I find that there is not any evidence t~t Virginia's negligence was more than moderate.
Since the violation could have resulted a miner losing his sense of hearing, I find that the level of
gravity was relatively high. Considering the remaining factors in section 1lO(i) of the Act, I find
that a penalty of $300.00 is applicable.
XI. Order No. 7711680
Hom testified that in his inspection, he had noted various safety defects that should have
been observed in an examination, and corrected. He noted that it was obvious that guards, a
berm, and a stopping block were missing. He concluded that proper examinations were not being
performed, and issued an order alleging a violation of30 C.F.R. § 56.18002(a) which, as
pertinent, requires that each shift the operator shall examine each working place " ... for
conditions which may adversely affect safety or health. The operator shall promptly initiate
appropriate actions to correct such conditions."
Inasmuch as I previously found that these violative conditions did exist (I.(B.)(1.), II, ill,
V, VI, infra), I conclude that Virginia did violate section 56.18002, supra. Further, since the
failure to con9uct proper examinations resulted in not correcting violative conditions that were
found to be significant and substantial (I.(B.)(2.), II, infra), I find that the violation herein was
significant and substantial.
According to Hom, Adamson III told him that" ... examinations had not been conducted
in a while, and that they just let it slide" (Tr. Vol. III, 20-21). Inasmuch as Virginia did not
impeach, rebut, or contradict this testimony, I accept it and find that within this :framework,
Virginia's conduct amounted to an unwarrantable failure (see Emery, supra).
Since the violation herein was significant and substantial, I find that the level gravity was
relatively high. Also, as discussed above, I find that the level of negligence was relatively high.
Taking into the account the remaining factors set forth in section 11 O(i) of the Act, supr~ as
discussed above, I conclude that a penalty of $600.00 is appropriate.

389

XII. Order No. 7711681
Hom testified that because he had observed several safety defects on mobile equipment,
in his inspection on June 2, he concluded that if a preshift examination had been done properly,
the defects would not have existed. He issued an order alleging a violation 30 C.F.R. § 56.14100
which requires, in essence, the inspection of mobile equipment prior to its being placed in
operation on a shift. As discussed above (VII, VIII, infra), the record establishes the existence of
the following safety defects on mobile equipment: inoperable horns and lack of seatbelts. Due to
the existence of safety violations on various mobile equipment, I conclude that it was more
probable than not that a proper preshift examinatiorfhad not been performed. I thus find that
Virginia did violate section 56.14100, supra. Essentially for the reasons stated above (VII, VIII,
infra), inasmuch as the various safety defects were found to be significant and substantial, I
conclude that the violation herein of the failure to inspect, was also significant and substantial.
The record does not contain sufficient facts to predicate a finding that Virginia's conduct
rose to the level of aggravated conduct. Hom referred to the fact that Terry and Adamson III
were aware of the standard at issue, and had ignored the various defects cited. Since the
gravamen of the violation relates to the performance and thoroughness of the inspection,
evidence of the failure to correct violative conditions is not relevant regarding the issue of
negligence relating to a proper preshift examination. Within this context, I find that it has not
been established that Virginia's actions constituted an unwarrantable failure.
I find that the gravity of this violation was high, but that the level of negligence was no
more than moderate. Taking into the account the remaining factors set forth in section 11 O(i) of
the Act, I find that a penalty of $300.00 is appropriate.
XIII. . Order No. 7711683
According to Hom, on June 4, 1998, a 1978 Ford welding truck was being operated on
the subject site by an employee of the mine. Hom indicated that the manually operated horn on
this truck was not operable. He issued an order alleging a violation of section 56.14132(a),
supra.
According to Adamson; the pickup truck was owned by Terry who used it to commute to
the work site. Adamson stated that the truck contained a tool box, torches, and gauges that
belonged to him (Terry). Adamson stated that the welder was usually transported with a fork lift,
and that the only time it was in Terry's truck was when, on a couple of occasions, Terry
borrowed it. Adamson testified that the truck was not considered Virginia's quarry equipment,
and was never intended to transport quarry equipment around the site, and that specifically it was
never intended for Terry to put the welder or company tools in the truck, or for him to use his
truck for other than personal transportation.
However, Adamson indicated that he did not know which set of tools or gauges in the

390

truck were his or Terry's. Also, Virginia did not impeach or rebut Horn's testimony that on
June 4, the truck was being operated by an employee of Virginia. Nor did Virginia impeach or
contradict Horn's testimony regarding the inoperable condition of horn. Accordingly, I find that
it has been established that Virginia did violate section 56.14132(a), supra.
I find that Hom's opinion reasonable that Terry, as foreman, should have known that his
truck was being used on·the site. However, although on June 2, Virginia had been cited for a
violation of the section 56.14132(a), supra, a different piece of equipment was cited. There is no
evidence as to how long a period the horn had been inoperable, and for how long a period
Virginia knew or should reasonable have known that it was inoperable. Within this context, I
find that it has not been es.tablished that Virginia's action herein constituted aggravated conduct,
and thus the violation was not as a result of its unwarrantable failure.

There is insufficient evidence in the record regarding the path of travel normally taken by
the truck, the traffic pattern in the area, any pedestrian traffic in the area, and the nature of the
roadway over which it travels. I thus find that it has not been established that the gravity of the
violation was more than low. For the reasons set forth above, I find that Virginia's negligence
was no more than moderate. Considering the remaining factors set forth in section l lO(i) of the
Act, I find that a penalty of $200.00 is appropriate.
XIV. Order No. 7711684
Hom testified that he asked the operator of the 1978 Ford truck to back up a slight
incline, and set the parking brake, but that the vehicle rolled. Virginia did not impeach or rebut
Hom's testimony. I thus find that it has been established, as alleged by Hom, in the order that he
issued, that Virginia did violate section 56.14101(a)(2), supra, which, as pertinent, provides that
mobile equipment shall be provided with a service brake system ". . . capable of .... holding the
equipment with its typical load on the maximum grade it travels."
There is no evidence as to how long a period prior to June 4, the parking brake had been
defective. Within this context, and for the reasons stated above, infra, I find that it has not been
established that Virginia's conduct herein amounted to an unwarrantable failure (see Emery,
supra).
According to the uncontradicted and unimpeached testimony of Hom, as a consequence
of the violative condition, the truck could hit a person or roll over a cliff causing an injury
resulting in loss of work days or restricted duty. I find that the gravity of this violation was
moderate. For the reasons set forth above, I find that it has not been established that Virginia's
negligence was more than moderate. Considering the remaining factors set forth in section
1 lO(i) of the Act, I find that a penalty of$200.00 is appropriate.

391

ORDER
It is ORDERED that: (1) The following orders are to be reduced to section 104(a)
citations that are significant and substantial: 7711660, 7711661, 7711665, 7711668, and
7711681; (2) the following orders reduced to section 104(a) citations that are not significant and
substantial; 7711663, 7711666, 7711667, 7711683, and 7711684; and (3) Respondent shall pay a
total penalty of $4,400.00 within 30 days of the date of this Decision.

Distribution:
M. YusufM. Mohamed, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, VA 22203 (Certified Mail)
V. Cassel Adamson, Jr., Esq., Adamson and Adamson, Crozet House, 100 East Main Street,
Richmond, VA 22219-2168 (Certified Mail)
nt

392

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

March 10, 2000

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, on behalf of
GARY DEAN MUNSON,
Complainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEYA 2000-40-D
MORG-CD-2000-01
Federal No. 2
Mine ID 46-01456

EASTERN ASSOCIATED COAL CORP.,
Respondent

DECISION

AND
ORPER OF TEMPORARY REINSTATEMENT
Appearances: Douglas N. White, Esq., Associate Regional Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Applicant;
Rebecca Oblak Zuleski, Esq., Furbee, Amos, Webb & Critchfield, P.L.L.C.,
Morgantown, West Virginia, for Respondent.
Before:

Judge Zielinski

This matter is before me on an Application for Temporary Reinstatement filed by the
Secretary on behalf of Gary Munson pursuant to section 105(c)(2) of the Federal Mine Safety and
Health Act of 1977 (the "Act");30 U.S.C. § 815(c)(2). The application seeks an order requiring
Respondent, Eastern Associated Coal Corporation (EACC) to reinstate Munson as an employee
pending completion of a formal investigation and final decision on the merits of a discrimination
complaint he has filed with the Mine Safety and Health Administration (MSHA). A hearing on
the application was held in Morgantown, West Virginia on March 7, 2000. For the reasons set
forth below, I grant the application and order Mr. Munson's temporary reinstatement.

393

Summary ofthe Evidence
Mr. Munson had been employed by EACC for 28 years. For the past three years he held
the position of control room operator and at the time of his discharge he was working the
afternoon shift. By all accounts, Munson was a good worker and there were no complaints about
his work performance. Throughout his tenure with EACC, Munson was active in bringing
complaints to management about safety and general labor concerns. There is no dispute that he
frequently raised safefy concerns at, or in conjunction with, weekly safety meetings held by his
immediate supervisors, foremen Stanley Eddy and Donald Livengood. 1 Munson testified that
when his safety concerns were not addressed in a timely fashion, he would call the Secretary's
Mine Safety and Health Administration (MSHA) on a confidential complaint line, the "code-aphone". He testified that he frequently told management that he had phoned complaints to
MSHA and would continue to do so when his complaints were not addressed. Munson and a
fellow miner, Roger Hornick, also testified that Munson raised safety concerns with Frank
Peduti, EACC's manager of preparation and electrical engineering. Mr. Peduti occasionally
called meetings to discuss certain issues. Munson and Hornick testified that Peduti indicated that
he did not like "code-a-phone" complaints and preferred that such matters be handled in house.
Peduti denied animosity toward safety complaints because it was management's obligation to
address such concerns and EACC wanted to do so beyond the letter of the law. EACC ' s
management witnesses denied knowledge of Munson's "code-a-phone" complaints and noted
that he had never raised safety concerns through the formal grievance process. Munson testified
that, until recently, he had been unaware that he could file a grievance on a safety complaint.
Munson was aware that he could file grievances related to labor issues and EACC records
showed that, for calendar years 1998 and 1999, he had filed 22 grievances over various labor
matters, substantially more than any other ininer at the preparation plant. Munson testified that
his foremen had expressed concerns about his grievances and safety complaints, stating that they
could result in the plant being shut down. Munson also testified that he was authorized to
accompany MSHA and state mine inspectors when a member of the safety committee was not
available and that he had done so on approximately 12-15 occasions in the past 10 years.
Because the inspections started on the day shift, his involvement generally lasted only an hour or
two, during which he pointed out safety problems that may have lead to citations being issued.
EACC introduced records showing that Munson was recorded as accompanying an inspector
only one time since December 1, 1994.

~:

As control room operator, Munson was required to start work 15 minutes earlier
than other shift workers and was frequently unable to attend the safety meetings held at the
beginning of the shift. The foreman would generally speak individually with Munson after the
meeting, giving him a synopsis of the meeting and an opportunity to provide input.
394

The developments that lead to Munson's discharge commenced on Thursday,
November 18, 1999, when he told his foreman, Stanley Eddy, that he was going to purchase a
"four wheeler" the following day and that he might be late for work. He was told to come in if
he was going to be 30-60 minutes late. A miner could report tardy by up to 60 minutes without
significant repercussions. Munson encountered delays in purchasing and registering the vehicle
and did not report to work on November 19, 1999. He was not scheduled to work that Saturday
or Sunday and had applied for vacation days 2 for Monday through Wednesday, November 22-24,
1999. The mine was to be closed for the Thanksgiving holiday period on November 25 and 26,
1999. In accordance with required procedure, his application had been submitted prior to
January 1999 and decisions were made at that time based upon the number and seniority of
persons applying for vacation on a particular day. His request for vacation was approved for
November 22 and 24, but was denied for the 23rd, and he was given a form noting the decisions
made on his vacation requests. Munson, like many of the employees at EACC, was an avid deer
hunter and had taken off that first week of the firearm deer season, referred to as "gun week", for
several years. He inadvertently had referred to his 1998 vacation leave schedule, mistakenly
thought that he had also been granted a vacation day on November 23, 1999, and did not come in
to work. On the 18th, Stanley Eddy had inquired who was going to be working the following
short Thanksgiving week, and Munson indicated that he had scheduled days off. The fact that
his vacation request for the 23rd had been denied was not raised at that time. On or around
November 24, his foreman called him and asked that he sign up to work the holiday on Friday,
November 26, 1999. Despite the opportunity for triple pay, he declined, but did agree to work
the following day, Saturday, and otherwise worked his normal schedule the following week.
Neither Stanley Eddy, nor any other management employee said anything about his absences
until the following Friday. At the beginning of his shift on December 6, 1999, he was called to a
meeting and served with a letter advising him that he was being terminated for missing two
consecutive work days without a viable excuse.
The formal policies for addressing absenteeism at EACC are found in the National
Bituminous Coal Wage Agreement of 1993. Article XXII, Section (i) "Attendance Control"
provides in pertinent part:
(4) Absences of Two Consecutive Days
When any Employee ~bsents himself from his work for a period of two (2)
consecutive days without the consent of the Employer, other than because of
proven sickness, he may be discharged. * * *

2

With his seniority level, he was entitled to specified numbers of"graduated" and
"floating" days off. In addition, he was entitled to 5 "personal days" off, which he did not need
management's permission to take. It appears that as of November 19, 1999, Munson had at least
·
one personal day remaining.
395

Robert Areford, EACC's manager for employee relations at the time, testified in response to a
question about the ·significance of the word "may", that termination was "not automatic." The
term "two (2) consecutive days" has apparently been interpreted to mean two consecutive
scheduled work days. Such that, in Munson's case, even though there were intervening weekend
days and one scheduled vacation day, the 191h and 23rd were considered consecutive days. 3
Subsection (2) pescribes a procedure to address employees who accumulate single days of
unexcused absences. An employee who accumulates six single days of unexcused absences in a
180-day period or three single days of unexcused absences within a 30-day period is designated
an "irregular worker" and is subject to "progressive steps of discipline". If an "irregular worker"
has an unexcused absence within 180 days of his last unexcused absence he may be given a
written warning, if another unexcused absence occurs within 180 days of the warning, he may be
suspended for 2 working days and if another unexcused absence occurs within 180 days of the
suspension, he may be suspended with intent to discharge.
In addition to these formal policies, EACC also applied an informal, discretionary
procedure referred to as "last chance agreements". Under this procedure, an employee who was
subject to discharge would be given a "last chance" to retain his job, by entering into an
agreement to maintain required attendance and possibly take other actions to address the cause of
his absenteeism. Failure to comply with the agreement \Jt'.Ould result in discharge. EACC's
officials testified that "last chance agreements" were employed when there were "extenuating
circumstances" surrounding the absences. Examples of extenuating circumstances offered by
Respondent were situations where an employee had misunderstood what vacation day requests
had been disapproved because he was "probably illiterate"; an employee misunderstood the
consequences of consecutive absences because he was "considered developmentally slow"; an
employee had a substance abuse problem related to the death of his wife and needed only a short
period of employment to qualify for retirement; and, an employee misunderstood the prescheduling policy, had vacation days available to take and needed only one more year to qualify
for retirement." EACC officials testified that they had grown increasingly dissatisfied with such
agreements because they often failed to correct the attendance problem. Those officials presently
with the authority to enter into last chance agreements, have not done so, but stated that such an
agreement would be available in a particular case, depending upon the circumstances.

3

Stanley Eddy, Munson's foreman, testified that he was unaware of that
interpretation and initially did not consider the absences to have been on consecutive work days,
a view that also may have been held by Munson's other foreman, Donald Livengood. When
Munson attempted to raise that issue at a subsequent meeting, it was dispensed with summarily
by both management and union representatives. The issue of whether the considerably more
harsh rule applicable to consecutive days rather than the single day rule applied in such
circumstances had apparently been arbitrated in the past. Whether that decision was subject to
further review is unknown. There was no explanation of why unexcused absences that occurred
several days apart were more serious or disruptive because there were vacation, as opposed to
work, days intervening.
396

EACC records indicated that approximately 38 last chance agreements had been entered
into between December 14, 1980 through February 4, 1999. A summary of the agreements
indicated that the underlying reason for the disciplinary action was generally absenteeism. On
seven occasions the absenteeism was related to a substance abuse problem. Sixteen of the
agreements involved unexcused absences on two consecutive days and the discipline imposed in
conjunction with the last chance agreement ranged from a 1-day suspension to an 18-day
suspension. In some ins.tances, it appears that employees were allowed to substitute vacation or
personal days in lieu of actual suspension.
After Munson was given the notice letter, a second meeting was held to address his
challenge to the termination. The meeting is referred to as a "24-48 hour meeting" and
representatives of the union and management discussed the reason for the proposed action and
Munson's explanation for his absences. As noted previously, the question of whether the two
consecutive day provision applied was raised but summarily dismissed. Munson testified that he
offered to substitute vacation days for his unexcused absences and requested and expected to
receive a last chance agreement. His requests were rejected and he was discharged. Munson
testified that Robert Areford stated that there were no more last chance agreements and that they
were going to make an example of him. Areford denied making any statement about making an
example of Munson. The union representatives stated that the decision would be arbitrated, the
standard practice. However, when EACC attempted to schedule the arbitration proceeding the
next day, it was advised that the union had withdrawn the arbitration request. Frank Peduti
testified that the virtual lack of defense of Munson by the union representatives struck him as
"odd" and that he found the union's withdrawal of the arbitration request "a shocker."
Following the conclusion of the 24-48 hour meeting, several attempts were made to try
and "work something out" for Munson, in order to avoid the proposed discharge. The union's
District President contacted Mr. Hibbs 3-5 times. Complainant introduced a statement by the
District President.wherein he related that Hibbs had told him that "Munson's case was not about
absenteeism [] there was no way they would settle the case [-] Munson was well-known to call
the code-a-phone [and that] Munson was not well liked by himself and others." Stanley Eddy
talked to Mr. Peduti in an effort to obtain a second chance for Munson. He was informed,
however, that last chance agreements were no longer available. Mr. Hibbs testified that he never
made a decision regarding a last _chance agreement for Munson because it was never proposed.
He also stated that if it was up to him, there would be no more last chance agreements because
they didn't work. Throughout the discharge process, specifically the meetings of December 6
and 9, 1999, neither Munson, who testified that he was somewhat in shock, nor anyone on
Munson's behalf, raised a claim of discrimination or otherwise complained that his discharge
was motivated by his making of safety complaints. Roger Hornick testified that Stanley Eddy
and Donald Livengood told him that it was Munson's grievances and safety complaints that got
him "in trouble" and that he was "done" even before he was completely discharged.

397

Following his discharge, Munson prevailed in an admfuistrative claim for unemployment
compensation benefits. The administrative law judge who decided the claim held that EACC had
failed to prove that Munson had been discharged for an act of misconduct.
Munson filed a complaint of discrimination with MSHA on January 4, 2000, alleging that
he was discharged and was subject to disparate treatment when he was not given a last chance
agreement because he had made numerous safety complaints to his immediate supervisors and
had informed management that he had made code-a-phone complaints to MSHA when his safety
complaints were not satisfactorily addressed.

Findings of Fact and Conclusions of Law
Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent part, that the
Secretary shall investigate a discrimination complaint "and if the Secretary finds that such
complaint was not frivolously brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of the miner pending final order on the
complaint." The Commission has established a procedure for making this determination.
Commission Rule 45(d), 29 C.F.R. § 2700.45(d), states:
The scope of a hearing on an application for temporary reinstatement is
limited to a determination as to whether the miner's complaint was frivolously
brought. The burden of proof shall be upon the Secretary to establish that the
complaint was not frivolously brought. In support of his application for
temporary reinstatement, the Secretary may limit his presentation to the testimony
of the complainant. The respondent shall have an opportunity to cross-examine
any witnesses called by the Secretary and may present testimony and documentary
evid~nce in support of its position that the complaint was frivolously brought.
"The scope of a temporary reinstatement hearing is narrow, being limited to a determination by
the judge as to whether a miner's discrimination complaint is frivolously brought." Secretary on
behalfofPrice v. Jim Walter Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987) aff'd sub
nom. Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11 1h Cir. 1990).
In adopting section 105(c), Congress indicated that a complaint is not frivolously brought,
if it "appears to have merit." S. Rep. No. 181, 95th Cong., pt Sess. 36-37 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). The
"not frivolously brought" standard has been equated to the "reasonable cause to believe" standard
applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Secretary on behalfof
Bussanich v. Centralia Mining Company, 22 FMSHRC _(February 22, 2000) at p. 5.

398

In order to establish a prima facie case of discrimination under Section 105(c) of the Act,
a complaining miner bears the 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
behalfofPasula v. Consolidation Coal Co., 2 FMSHRC 2786(October1980), rev'd on other
grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary
on behalfofRobinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Secretary on
behalfofJenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 1984); Secretary on
behalfof Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (1981), rev'd on other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
There is some dispute as to the extent of the protected activity engaged in by
Complainant. However, there is little question that he engaged in such activity and that his
activity was known to managers at EACC. A complaint made to an operator or it's agent of"an
alleged danger or safety or health violation" is specifically described as protected activity in §
105(c)(l) of the Act. There is also no dispute that he was subjected to adverse action, in that he
was discharged on December 6, 1999. Complainant has also offered evidence that EACC's
managers were hostile to his complaints and that that hostility lead to rejection of his offers of
compromise and discharge. The Commission has frequently acknowledged that it is very
difficult to establish "a motivational nexus between protected activity and the adverse action that
is the subject of the complaint." Secretary on behalfofBaier v. Durango Gravel, 21 FMSHRC
953, 957 (September 1999). Consequently, the Commission has held that "(1) knowledge of the
protected activity; (2) hostility or animus towards the protected activity; and (3) coincidence in
time between the protected activity and the adverse action" are all circumstantial indications of
discriminatory intent. Id.
While Munson claims that he made complaints within the "several months" prior to his
discharge, and introduced limited evidence that EACC managers were aware of and motivated by
knowledge of his code-a-phone complaints, he does not present a classic case of an operator's
immediate adverse reaction to a specific safety complaint. He relies on evidence of statements
made indicating uniawful motivation by EACC's managers and disparate treatment. In essence,
he contends that EACC was intent on discharging him at the first opportunity -- that opportunity
arose when he mistakenly took the 23rd of November off after having missed work on the l 91h and that in the absence of unlawful motivation, he would have been allowed to substitute
vacation or personal days for his absences, and/or that he would have been given a last chance
agreement rather than being discharged.

399

There is clearly enough evidence to demonstrate that his claim of discrimination is not
frivolous. He was uniformly acknowledged to be a good worker who had no performance or
significant attendance problems. Last chance agreements had been entered into with at least 16
other employees who had unexcused absences for 2 or more consecutively scheduled work days.
Other employees likely with more serious absenteeism records4 had also been offered last chance
agreements. EACC' s explanation of the status of"last chance agreements" is somewhat
inconsistent, as is its explanation of whether or not a last chance agreement was considered for
Munson. When Stanley Eddy attempted to intervene and obtain a "second chance" for Munson,
he was told by Mr. Peduti that last chance agreements were no longer available. Mr. Hibbs
testified that, they were available on a case-by-case basis, though if it was up to him, they would
not be. Mr. Areford, likewise testified that he would "never say never" to the availability oflast
chance agreements. Mr. Hibbs, who would have had the initial authority to approve a last chance
agreement for Munson, testified that he never made such a decision because he was never asked
to. He acknowledged, however, that the union's District President had contacted him several
times in an attempt to secure some relief for Munson. Munson, of course, testified that he
specifically requested a last chance agreement at the meetings held in conjunction with his
discharge. As Richard Eddy's statement notes, it appeared that Munson met all of the criteria for
such an agreement, because he had a good work record, little absenteeism and had made a
mistake, i.e. he compared favorably to those employees who had been afforded last chance
agreements in the past.
On the other hand, EACC has presented credible evidence that it's view toward last
chance agreements was changing for legitimate business related reasons and that Mr. I:libbs, who
took over as operations manager in August of 1999, had a decidedly more negative view towards
such agreements than his predecessor. Whether EACC's failure to offer Munson a last chance
agreement was motivated, in part by animosity toward his protected activity and, if so, whether
EACC would have taken the same action in the absence of unlawful motivation pose more
difficult questions than whether Munson's complaint is frivolous. These questions cannot, and
should not, be an~wered at this stage of the proceedings. The investigation of Munson's
complaint has not yet been concluded and no formal complaint of discrimination has been filed
on his behalf. The purpose of a temporary reinstatement proceeding is to determine whether the
evidence presented by the Complainant establishes that his complaint is not frivolous, not to
determine "whether there is sufficient evidence of discrimination to justify permanent
reinstatement." Jim Walter Resources, Inc. 920 F.2d at 744. Congress intended that the benefit
of the doubt should be with the employee, rather than the employer, because the employer stands
to suffer a lesser loss in the event of an erroneous decision since he retains the services of the
employee until a final decision on the merits is rendered. Id. 920 F.2d at 748 n.11.

4

The wage agreement provisions described above provide that to reach the
discharge point for non-consecutive days of unexcused absences, the employee would have had
to have been designated as a "irregular worker" and then missed three additional work days
without a viabte excuse.
400

I find that Munson's complaint is not entirely without merit and conclude that his
discrimination complaint has not been frivolously brought.
ORDER

The Application for Temporary Reinstatement is GRANTED. Eastern Associated Coal
Corporation is ORDERED TO REINSTATE Mr. Munson to the position that he held
immediately prior to December 6, 1999, or to a similar position, at the same rate of pay and
benefits, IMMEDIATELY ON RECEIPT OF THIS DECISION.5

Distribution:
Douglas N. White, Esq., Associate Regional Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Suite 516, Arlington, Virginia 22203 (Certified Mail and facsimile transmittal)
Rebecca Oblak Zuleski, Esq., Furbee, Amos, Webb & Critchfield, P.L.L.C., 5000 Hampton
Center, Suite 4, Morgantown, WV 26505 (Certified Mail and facsimile transmittal)
/rnh

5

There was evidence submitted at the hearing that EACC had restructured it's
workforce since the time Munson was discharged. If EACC contends that Munson would no
longer have held his former position had he remained employed, it should attempt to reach
agreement with Munson on the position to which he will be reinstated. If the parties are unable
to reach agreement EACC may file an appropriate motion seeking relief from this Order.
401

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

March 15, 2000
CONTEST PROCEEDINGS

JIM WALTER RESOURCES,
INCORPORATED,
Contestant

Docket No. SE 99-6-R
Citation No. 7665505; 9/23/98

v.

Docket No. SE 99-7-R
Citation No. 7665506; 9/23/98

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

Docket No. SE 99-8-R
Citation No. 7665507; 9/23/98
Docket No. SE 99-9-R
Citation No. 7665508; 9/23/98
Docket No. SE 99-10-R
Citation No. 7665512; 9/24/98
Central Supply Shop
Mine ID 01-02515
CIVIL PENALTY PROCEEDING

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

Docket No. SE 99-66
A.C. No. 01-02515-03521

v.
Central Shop
JIM WALTER RESOURCES
INCORPORATED,
Respondent
DECISION APPROVING SETTLEMENT ON REMAND
Before: Judge Feldman
On January 31, 2000, the Commission remanded these matters for assessment of the
appropriate civil penalties after the Commission determined the Central Supply Shop operated
by Jim Walter Resources, Inc. (JWR) is subject to the jurisdiction of the Federal Mine Safety
and Health Act of 1977, 30 U. S.C. § 801 et seq. (1994) (the Mine Act). 22 FMSHRC 21
(January 2000). Specifically, the Commission concluded JWR's Central Supply Shop is a "coal
or other mine" as contemplated by section 3(h)(l) of the Mine Act, 30 U. S.C. § 802(h)(l).
402

fu response to the Commission,s decision, on February 28, 2000, the Secretary filed a
Motion to Approve Settlement wherein JWR agreed to pay the.$55.00 civil penalty initially
proposed by the Secretary for each of the three non-significant and substantial (non-S&S)
citations pertaining to JWR's Central Supply Shop. 1 I have considered the representations in this
case, and I conclude that the proffered settlement is appropriate under the criteria set forth in
Section 1lO(i) of the Act.

'WHEREFORE, the motion for approval of settlement IS GRANTED, and
IT IS ORDERED that'Jim Walter Resources, Inc., pay a civil penalty of$165.00 in
satisfaction of the three citations in issue within 45 days of this order, and, upon receipt
of timely payment, the contest proceedings in Docket Nos. SE 99-8-R, SE 99-9-R and
SE 99-10- R, and the civil penalty proceeding in Docket No. SE 99-66, ARE DISMISSED. 2

cJ?_w-so_.
Jerold Feldman
Administrative Law Judge

Distribution:
Guy W. Hensley, Esq., Jim Walter Resources, Inc., P.O. Box 133, Brookwood, AL 35444
(Certified Mail)
William Lawson, Esq. Office of the Solicitor, U.S. Department of Labor, Suite 150, 100
Centerview Drive, Chambers Building, Highpoint Office Center, Birmingham, AL 35216
(Certified Mail)
/mh

1

The citations are Citation Nos. 7665507, 7665508 and 7665512.

2

The Secretary initially proposed a total civil penalty of $440.00 for eight citations in
Docket No. SE 99-66. The initial decision in Docket No. SE 99-66 imposed a civil penalty of
$275.00 for five citations related to JWR's Central Machine Shop. 21FMSHRC495
(May 1999) (ALJ) (corrected by Order issued June 7, 1999). The $275.00 civil penalty for
these five citations, that included the two citations contested in Docket Nos. SE 99-6-R and
SE 99-7-R, has been paid. The additional $165. 00 civil penalty JWR now has agreed to pay
for the remaining three citations in D9cket No. SE 99-66 will result in payment of the total
$440.00 civil penalty initially proposed by the Secretary.
403

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

March 17, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of GRANT NOE, Jr.
Complainant

DISCRIMINATION PROCEEDING
Docket No. KENT 99-248-D
BARB CD 99-07

V.

J & C MINING, L.L.C. AND
MANALAPAN MINING CO., INC.,
Respondents

No. 1 Mine
MineIDNo. 15-17707

DECISION
Appearances:

Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee, on behalf of the Complainant;
Susan Lawson, Esq., Lawson & Lawson, Harlan, Kentucky, and
Richard D. Cohelia, Evarts, Kentucky, on behalf of the Respondents.

Before:

Judge Melick

This case is before me upon the Complaint by the Secretary of Labor, on behalf of
Grant Noe, pursuant to Section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 80~ et seq., the "Act." These proceedings have been bifurcated and therefore have been
limited at this stage to the issue of liability. The Secretary alleges in her complaint that J & C
Mining Company ., LLC (J & C) violated Section 105(c)(l) of the Act on March 2, 1999, when
Noe was purportedly the subject of a constructive discharge_after he had engaged in protected
activities on December 16, 1998 and on January 19, 1999, and engaged in a protected work
refusal on March 2, 1999. (Secretary's Reply Brief page 5) 1• She seeks as restitution only

Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate against or cause to be discharged
or cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant for employment in any coal or other mine
subject to this Act because such miner, representative of miners or applicant for employment has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal or other mine, or because such miner,
representative of miners or applicant for employment is the subject of medical evaluations and
404

·.:.

-

damages for the alleged constructive discharge on March 2, 1999. Manalapan Mining Company
Inc., (Manalapan) has been joined as a successor-in-interest to J & C.
Background

J & C operated the No. 1 Mine from 1997 to May 1, 1999, when it was acquired by
Manalapan. During relevant times, J & C operated two production shifts and one maintenance
shift each day for five days a week. It employed 13 to 14 miners on each of the first and second
production shifts and six miners on the third shift. J & C also frequently operated overtime shifts
on Saturdays for coal production or dead work. Four to six miners were typically assigned for
such deadwork and the full crew was typically assigned for overtime production.

J & C operated a bridge hauling system which dumped onto a belt. The mine had as
many as four underground beltheads and four bridges operating at one time. The production
shifts had four bridge operators and two beltmen. There was a constant problem with rocks
clogging and stopping the belt. It was therefore important to have a beltman assigned at the
beltheads to prevent rocks from causing belt shutdowns.
In early 1999, J & C was retreat mining in the main section. As it progressed toward the
surface, three of the beltheads were eliminated. Early in March 1999, they were ready to move to
the new panel. It took three shifts to move the belthead. Once the mining equipment was moved
to the new panel after March 8, 1999, two of the four bridges were temporarily removed until the
advance mining moved deep enough to return them to production. With the removal of the two
bridges, two additional qualified men (the two bridge operators)were then available to operate
several different types of equipment, perform dead work and watch the belts until their bridges
were placed back into production.
Noe had been working as a beltman on the first shift from September 1997 to March 2,
1999. His mam duties were to remain at the beltheads and remove rock from the belt. On March
1, 1999, Mine Fore:r:nan Jesse Saylor met with Noe in the mine office and stated that he needed
someone to work the third shift for two or three weeks because third shift.miner, Roger Ramey
had been injured. There is no dispute that Ramey had in fact been injured and was unable to
work. Noe responded that he did not want to work on the third shift. In this regard he explained
at hearing that he did not want to leave his family alone and that third shift foreman Jerry Polly
was hard to work for, was an unsafe foreman and that he did not want to work for him.

potential transfer under a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment has instituted or caused to be
instituted any proceeding under or related to this Act or has testified or is about to testify in any
such proceeding, or because of the exercise by such miner, representative of miners or applicant
for employment on behalf of himself or others of any statutory right afforded by the Act.

405

Saylor ended the conversation by instructing Noe to report th~ next day at his regular first shift
assignment.
Noe reported for work on the first shift the next day as directed. At the end of the shift
Saylor again called Noe into the mine office. Also present in the office at that time was second
shift foreman George Saylor and section foreman Carl Runyon. Jesse Saylor again asked Noe to
transfer to the third shift. Noe refused, and Jesse Saylor then offered him a $.50-cent per-hour
raise to work the third shift. According to Noe he refused, explaining that if he went to the third
shift and "got hurt again they would not pay me [compensation]." Jesse Saylor then informed
Noe that the third shift assignment was all that J & C Mining had to offer him and gave Noe the
option of working the third shift or quitting. Noe informed Saylor that he could not quit but that
he would not work the third shift. Saylor stated that "it was either third shift or go home." Noe
asked Saylor whether that meant he was fired. Saylor confirmed that Noe was fired. Noe then
turned in his equipment and uniforms as requested by Saylor.
According to George Saylor, Jesse Saylor asked Noe at this meeting to help him out for a
couple of weeks. Noe responded "I'm not going on no God damn third shift" and when Jesse
Saylor told Noe "that's all I got, it's either that or go home," Noe "exploded."
The Secretary argues that when Noe was fired by Jesse Saylor at the March 2, 1999,
meeting, he was constructively discharged. She maintains that his refusal to transfer to the third
shift was based on a reasonable and good faith belief that to do so would have been hazardous. 2
See Miller v. FMSHRC, 687 F.2d 194, 195-96 (7th Cir. 1982). It is now the well established law
that a constructive discharge is protected if conditions faced by the miner (in this case by Noe's
transfer to the third shift) are so intolerable that a reasonable person would feel compelled to
resign. Simpson v. FMSHRC, 842 F.2d 453, 463 (D.C. Cir. 1988).
Con~tructive discharge cases have been analyzed by the Commission by first determining
whether the miner engaged in a protected work refusal, and then determining whether the
conditions faced by the miner constituted intolerable condition~. Secretary on behalfofBowling
v. Mountain Top Trucking Co., 21FMSHRC268 at 272-81 (March 1999); Secretary on behalfof
Nantz v. Nally & Hamilton Entreprises Inc., 16 FMSHRC 2208 at 2210-13 (November 1994).
The Act grants miners the right to complain of a safety or health danger or violation , but does
not expressly state that miners have 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
face of such perceived danger. In order to be protected, work refusals must be based upon the

2

While the Secretary argues in her post hearing briefs that Noe quit on March 2,
1998, also because of prior adverse actions based on earlier protected activities, the record does
not support her argument. At hearings, Noe clearly articulated the reasons he quit and did not
mention in this regard any of these alleged prior adverse actions as having any part in this
decision. Under these circumstances the Secretary cannot properly assert that any of the prior
alleged adverse actions played any role in Noe's decision to quit. Accordingly the Secretary's
argument in this regard is rejected.
406

miner's "good faith, reasonable belief in a hazardous condition." Secretary on behalfof
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 1981); Gilbert v. FMSHRC, 866
F.2d 1433, 1439 (D.C. Cir. 1989). A good faith belief"simply means honest belief that a hazard
exists." Robinette, 3 FMSHRC at 810. Consistent with the requirement that the complainant
establish a good faith, reasonable belief in a hazard, "a miner refusing work should ordinarily
communicate, or at least attempt to communicate, to some representative of the operator his
belief in the safety or health hazard at issue." Secretary ofLabor on behalfof Dunmire v.
Northern Coal Co., 4 FMSHRC 126, 133 (February 1982).
The issue then is whether Noe, in refusing to transfer to the third shift, held a good faith
and reasonable belief that it would have been hazardous and then whether conditions on the third
shift were so intolerable that a reasonable person would have felt compelled to resign. Noe
testified that he explained to Jesse Saylor at their meeting on March 1, 1999, his reasons for
refusing the transfer. This testimony is set forth in the following colloquy at hearing:
Q.

What did you tell Jessie Saylor at that time with regard to the third shift
transfer?

A.

I told him I didn't want to go on third shift because I didn't want to leave
my family alone. 3 You know, I was scared of where I lived at. And Jerry
Polly is hard to work with. Because to me, I thought he was an unsafe
worker and I didn't want to work with him.

Q.

And why did you consider him to be unsafe to work for?

A.

Well, the time I was there I know of at least.six people that had been in
hurt and one died. They saved him two or three time before they got him
out of the mine. That scared me.

Q.

Wh0 do you know that was hurt on third shift? What are their names?

A.

Glen Brock was.

Q.

And he's the one.who died three times?

A.

That's why they say, sir.

Q.

And who else do you know that was hurt?

3

,

It was proffered at hearing that Noe suffers from a condition known as "obsessive

compulsive disorder" and that this condition was related to his concerns about leaving his family
at night. (Tr. 189).
407

A.

Roger Ramey was hurt twice.

Q.

Okay. Who else?

A.

Cole Colinger (phonetic) was hurt .. And I think there's another one, but I
can't remember his name. I'm pretty sure.

(Tr. 111-112)
When asked to explain these injuries and.foreman Polly's involvement if any, Noe
testified as follows:
JUDGE MELICK: And what kind of injuries did each receive?
BY ATTORNEY DOUGHERTY: Let's start with the first one. Who was the
first one. Who was the first one?
A.

Glen Brock, he was electrocuted.

JUDGE MELICK: He was electrocuted?
A.

Yes, sir.

JUDGE MELICK: And what did Mr. Polly have to do with that electrocution?
A.

Well, he was the foreman, you know, so he was there.

JUDGE MELICK: Well, do you know if he had anything to do with the injuries?
A.

No, sir I don't.

JUDGE MELICK: Who was the second one?
A.

Roger Ramey. ·

JUDGE MELICK: Ramey?
A.

Yes, sir.

JUDGE MELICK: What kind of injuries did Mr. Ramey receive?
A.

First time, I believe, he cut his little finger off.

408

JUDGE MELICK: And what did Mr. Polly have to do with that injury, if
anything?

A.
He was just there, also.
JUDGE MELICK: He happened to be there?
A.

Yes sir.

JUDGE MELICK: And what was the third injury?
A.

Cole Colinger. He was cut - - - his ann with a piece of.rock, and they
thought he was going to lose his ann for a while, but he didn't.

JUDGE MELICK: All right. And what did Mr. Polly have to do with him being
cut by a rock, if anything?
A.

He as roof bolter man. He should have made it safer. He should have had
a jack there for him to see it.

JUDGE MELICK: Mr. Polly was a roof bolter?
A.

No, he was a box cutter. The other fellow was a roof bolter man.

JUDGE MELICK: All right. Are there any other injuries working for Mr. Polly?

A.

No, just those three, but two of them were hurt twice.

JUDGE MELICK: Two of them were hurt twice?
A.

Yes, sir. Roger Ramey and Glen Brock.

JUDGE MELICK: Do you know if any other injuries were the result of working
for Mr. Polly?

A.

No.

(Tr. 113-116).
At the second meeting with Foreman Jesse Saylor on March 2, 1999, Noe provided a
third reason for not wanting to transfer to the third shift. This was explained in the following
colloquy:
Q.

And what did you [mean] by that with regard to your compensation and
going to third shift?
409

A.

Well, [if] I went on third shift and got hurt again, they would not pay me.
They didn't pay me that frrst time.

Q.

So you were concerned that there was a likelihood you may be injured on
third shift and that if you were, that compensation would be denied again?

A.

Yes, sir.

-

(Tr. 120).
Noe testified that after stating his reasons for not wanting to go to the third shift the
following conversation transpired:
A.

He said, you have no choice but to quit. And I told him, Jessie, I can't
quit. I said, I can't quit. He said that's all I got for you. I said, well I'm
not going to. He said, that's all I got. I looked at him, I said, I'm fired
now? He said, yes. I asked him, I said do you want my rescuer? He said,
I'll take your rescuer and uniforms. I set my rescuer - - - laid them both
beside him. I said, you fed me, Jessie? He said no.

(Tr. 120-121).
Within this framework of evidence I find that Noe had neither a good faith nor reasonable
belief that it would have been hazardous to transfer to the third shift. The first and apparently
most important reason he cited for not wanting to transfer, i.e., that he did not want to l~ave his
family alone because he lived in an unsafe area, is unrelated to any mining hazard. His desire not
to work with Foreman Polly because Polly was "hard to work with," is likewise not a reason
related to any mining hazard.
Finally, Noe's vague claim that third shift Foreman Polly was an unsafe worker (and that
Noe would therefore more likely be injured on the third shift) has no credible record support.
While Noe speculates that Polly was unsafe because three miners had been injured while working
on his shift he concedes that Polly had not caused any of the injuries (Tr. 165-166). Indeed, the
Complainant has failed to provide any specific evidence that Polly had anything to do with any of
those injuries or that in fact there were more injuries on his shift than on other shifts. The very
fact that Noe has asserted these facially unsupported claims in itself demonstrates the lack of a
good faith reasonable belief.
Under the circumstances I do not find that the Secretary has sustained her burden of
proving that Noe entertained either a reasonable or a good faith belief that a transfer to the third
shift would have been hazardous or that the conditions on the third shift were so intolerable that a
reasonable person would have felt compelled to resign. The facts do not support a constructive
·
discharge.
410

ORDER
Discrimination Proceeding Docket No. KENT 99-248-D is hereby dismissed.

Gary Melick
Administrative Law Judge
Distribution: (By Facsimile and Certified Mail)
Brian W. Dougherty, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215
Susan C. Lawson, Esq., Lawson & Lawson, P.S.C., Post Office Box 837, Harlan, KY 40831
Richard D. Cohelia, Representative of J & C Mining, Safety Director for J &C Mining, and
Manalapan Mining Co., Inc., Route 1, Box 374, Evarts, KY 40828
\mca

411

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

March 20, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Docket No. WEST 99-152-M
A.C. No. 35-00023-05520

V.

Docket No. WEST 99-269-M
A.C. No. 35-00023-05522

CIVIL PENALTY PROCEEDINGS

Docket No. WEST 99-345-M
A.C. No. 35-00023-05523

MOLALLA REDI-MIX AND
ROCK PRODUCTS, INC.,
Respondent

Docket No. WEST 99-390-M
A.C. No. 35-00023-05524
Molalla Redi-Mix

DECISION
Appearances:

Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department of
Labor, Seattle, Washington, and Paul A. Belanger, Conference and
Litigation Representative, Mine Safety and Health Administration,
Vacaville, California, for Petitioner; ·
Douglas Jorgensen, President, MRM, Inc., Molalla, Oregon, for
Respondent.

Before:

Judge Manning

These cases are before me on petitions for assessment of civil penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration ("MSHA"),
against Molalla Redi-Mix and Rock Products, Inc., ("Molalla"), pursuant to sections 105 and 110
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act").
A hearing was held in Portland, Oregon, on February 23, 2000. The stay previously entered in
WEST 99-152-M, WEST 99-269-M, and WEST 99-345-M was lifted at that time.

412

At the start of the hearing, counsel for the Secretary request time for the parties to meet
privately because it appeared that they were close to settling all issues. At 9:35 a.m. the hearing
reconvened at which time the parties announced that they had indeed settled all issues.
The settlement was read into the record and was confirmed in a joint motion to approve
settlement. The terms of the settlement are as follows:

Citation/Order No.

30 C.F.R. §

Penalty

56.14101(a)

$2,275.00

56.14107(a)

595.00

56.4203
56.14131(a)
56.14130(a)
56.18002(a)
56.12028 &
104(b) of Act

1,365.00
1,365.00
3,640.00
VACATE

56.14107(a)
56.14132(a)
56.12001
56.12001

360.00
595.00
235.00
235.00

WEST 99-152-M
4375514
WEST 99-269-M
7973084
WEST 99-345-M
4375503
4375512
4375517
4375520
7973082

6,335.00

WEST 99-390-M
7973085
7973087
4375233
4375234

TOTAL

4 13

$17,000.00

I have considered the representations and documentation submitted at the hearing and in
the joint motion. I conclude that the proposed settlement is appropriate under the criteria set
forth in section 11 O(i) of the Act. The parties agree that Molalla may pay the total penalty in
eight payments over a period of two years and that in doing so the penalty will not impair its
ability to continue in business.
Accordingly, the motion to approve settlement is GRANTED; Citation No. 4375520 is
VACATED; and Molalla Redi-Mix and Rock Products, Inc., is ORDERED TO PAY the
Secretary of Labor the sum of$17,000 as follows: $2,125 shall be paid on or before July 1,
2000, and seven additional payments of $2,125 each shall be paid on or before the first day of
each successive calendar quarter starting on October 1, 2000, until the entire $17,000 is paid.

Richard W. Manning
Administrative Law Judge

Distribution:
Matthew L. Vadnal, Esq., Office of the Solicitor, U.S. Department of Labor, 1111 Third Avenue,
Suite 945, Seattle, WA 98101:-.3212 (Certified Mail)
'
Douglas Jorgensen, President, MRM, Inc., P.O. Box 555, Molalla, OR 97038 (Certified Mail)
Paul A. Belanger, Conference & Litigation Representative, Mine Safety & Health
Administration, 2060 Peabody Road, Suite 610, Vacaville, CA 95687 (First Class Mail)

RWM

414

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

March 24, 2000
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 97-95
A.C. No. 46-01286-03985

V.

Windsor Mine
WINDSOR COAL COMPANY,
Respondent
DECISION ON REMAND

Before: Judge Weisberger
This civil penalty proceeding is before me based upon a decision by the Commission in
this matter, 21FMSHRC997 (September 19, 1999), which vacated the decision of Judge George
A. Koutras 1 (19 FMSHRC 1694 (October 27, 1997)) that the violation by Windsor Coal
Company (Windsor) of 30 C.F.R. § 75.400 was not the result of its unwarrantable failure, and
remanded this proceeding for further consideration.2 Subsequent to the issuance of the
Commission's decision, the undersigned conferred with counsel for both parties in a telephone
conference call and suggested that the parties attempt to negotiate to settle the issues raised by
the Commission's remand. The parties subsequently indicated that they were unable to reach a
settlement, and counsel were allowed until January 28, 2000 to.file briefs. Pursuant to the
parties' request the time to file briefs was extended, and the parties filed their briefs on March 6,
2000.
In its remand, the Commission, directed a reconsideration of the issue of unwarrantable
failure. Compliance with the Commission's decision requires analysis of the circumstantial
evid~nce regarding the duration .of the cited conditions, along with an analysis of the evidence of
record regarding notice of the need for greater compliance efforts, efforts to eliminate the
violative conditions, and the danger and obviousness of the cited accumulations. (21 FMSHRC
supra,.at 1004, 1006-1007).
1. Duration

1

Judge Koutras is presently retired.

2

This caSe was subsequently assigned to me by former Chief Judge Paul Merlin.
415

On September 19, 1996, MSHA inspector Lyle Tipton inspected the No. 10 belt. The
Commission, 21 FMSHRC supra at 998, set forth Tipton's observations of the violative
conditions, and the description of the violative conditions as set forth in his order as follows:
Tipton observed an 'accumulation of combustible material consisting of float coal
dust, ... loose coal spillage, spillage of fine dry loose coal and coal dust in contact
with the conveyor belt and bottom roller structure[.]' Id. at 1697. Tipton's order
states that 'the total distance of this 6,000 foot entry containing float coal dust was
3,600 feet' and that spillage of 'coal and fine dry loose coal was present under the
majority of the bottom belt and in contact with the bottom rollers.' Id. The order
indicated that Inspector Tipton observed accumulations of float coal dust from the
belt drive (227 crosscut) to the 260 crosscut; accumulations of loose coal beneath
the majority of the bottom belt and in contact with the bottom rollers; spillage in
contact with rollers and visual signs that a roller had heated up at the 254
stopping; an 80-foot long, 1-foot wide, and 1-foot deep spillage at the 248
stopping; a 50-foot long, I-foot wide, and I-foot deep spillage at the 268
stopping; a 20-foot long, 3-foot wide, and 2-foot deep spillage at the 275
stopping; and a 10-foot long, 3-foot wide, and 2-foot deep spillage at the 276
stopping. Ex. P-3 at 2. He concluded that the cited conditions 'for the most part
were being carried as reported in the mine record books and would have taken
days to accumulate to the degree described in this action.' 19 FMSHRC at 1698.
Generally, the testimony of miners Cox and Welch corroborated Tipton's opinion that the
accumulations developed over a period of several shifts. On the other hand, Porter indicated that
in his preshift examination of September ~ 8, he had not observed any hazardous conditions, and
that specifically the conditions noted in Tipton's order were not present in his preshift
examination made on September 18. Also, there is no specific reference in Windsor's pre-shift
and on-shift' repprts prior to September 19, relating to the violative conditions described in
1
1
Tipton's order at the following stoppings: 248, 254, 268 and 275.
However, most importantly, as noted by the Commission, (21 FMSHRC supra at 1001)
the September 19 preshift report showed that the area between crosscuts 227 and 253 needed
cleaning. Also, on September _19, the midnight pre-shift report listed accumulations on both
sides of stopping 276, but the midnight on-shift report showed that only the right side of the belt
was cleaned i.e., "the left side of stopping 276 still needed cleaning by the time the day preshift
report was written" (21 FMSHRC supra at 1002) I thus find that the preponderance of the
evidence establishes that float cut accumulations from crosscut 227 to 260, and accumulations
along the left side of the belt at the 276 stopping had existed for at least one shift prior to
·
Tipton's inspection.
2. Notice of the Need for Greater Compliance Efforts.
Windsor, in asserting that it lacked notice of a greater need for compliance, argues that
annotations in.'the pre-shift book reflecting that coal had accumulated and some of the
416

accumulations remained for several shifts without abatement, does not demonstrate that Windsor
was on notice. In this connection, Windsor argues that none of the specific conditions set forth
by the Commission 21 FMSHRC supra at I 004, were cited by Tipton, and that many of the
conditions that were recorded do not amount to violative conditions. Also, Windsor argues that
its two-year history of Section 75.400 violations fails to show that it was on notice of a greater
need for compliance. In this connection, Windsor refers to the record as establishing that only
two-violations, both issu~d in 1995, were viewed by the Secretary to be the result ofindifference
or serious lack of reasonable care, that these violations were spread out over 14 miles of belt
haulage, that in the three month period preceding the issuance of the order at issue Windsor had
received only three section 75.400 violations, and that during the inspection at issue, the 14 mile
haulage was inspected, and only one violation was issued.
However, the record establishes that float coal dust existed along 3,600 feet of the 6,000
foot belt in question. Further, 15 to 20 miners worked over a two-shift period to correct the
violative accumulations. Hence, I find that, when cited by Tipton, the accumulations were
extensive. Considering the extent of the accumulations as well as the history of98 section
75.400 citations in a two-year period which the Commission considered to be a "high number of
violations during this time period" (21 FMSHRC supra at I 004, I conclude that, within the
framework of evidence in this case, Windsor was on notice that greater efforts were necessary
for compliance with Section 75.400, supra.
3. Efforts to Eliminate the Violative Conditions.
The Secretary argues, in essence, that Windsor's efforts to correct the violative conditions
were incomplete and ineffective. In this connection the Secretary argues that not withstanding
Windsor's efforts to clean up the violative conditions, it took nearly 30 employees working over
a period of two shifts to abate the violation. On the other hand, I am cognizant of the
Commission's' finqings, that prior to the order's issuance, " ....the record contains evidence of
Windsor's abatement efforts on the number 10 belt and elsewhere in the mine .... " 21 FMSHRC
supra at 1005). Further, on the September 18, afternoon shift six miners were assigned to work
on the No. 10 belt. The on-shift report indicated that these miners "corrected" conditions at the
head to drive, 269 to 272, 238 to 271. The on-shift report for the midnight shift September 19,
1996 indicated that the following_areas were cleaned: 282 to 260, 278 and 276. The work
assignment record for September 19, 1996 indicates the completion of the following: "cleaning
and dusting 265 to 260 crosscut, cleaning 272 to 278, changing 23 rollers, changing bad stands
262 to 263".
4. Danger and obviousness.
Judge Koutras, in addition to finding the existence of a section 75.400 violation, also
found that the violation was significant and substantial. He specifically found that " ...the
presence of float coal dust on a running belt with potential ignitions sources such as hot defective
rollers, rollers turning in loose dry coal accumulations, and a belt dragging and/or in contact with
loose dry accumulations and/or spillage presented serious potential fire and explosive hazards"
417

(19 FMSHRC at supra 1715). No appeal was taken regarding Judge Koutras' finding of
significant and substantial. Accordingly his conclusion in this regard as well as the underlying
facts he cited in support of his conclusion becomes the law of the case. However, there is no
evidence in the record that Windsor either knew or reasonably should have known of the specific
defective hot rollers, and rollers turning in loose dry coal accumulations cited by the inspector.
Within the framework of the above discussed factors, I find that it has been established
that the violation herein was as a result of more than ordinary negligence, reached the level of
aggravated conduct, and hence constituted an unwarrantable failure (~: Emery Mining
Corporation 9 FMSHRC 1997 (Dec 1997)).
5. Penalty

Judge Koutras, in his decision, 19 FMSHRC supra at 1728 made findings, pursuant to
section l lO(i) of the Act, regarding the size of Windsor's business and the effect of a penalty on
its ability to continue in business, its history of its prior violations, good faith abatement, and
gravity. None of these findings have been appealed, and they become the law of the case.
Regarding negligence, as discussed above (infra 4), I find that the level of negligence was more
than ordinary and reached the level of aggravated conduct.
Taking into account all the above factors, I find that a penalty of $2,500.00 is appropriate.

ORDER
It is ORDERED that within 30 days of this decision, Windosr shall pay a total civil
penalty of $2,500.

/

&eisb~
Administrative Law Judge

Distribution: (Certified Mail)
Howard Berliner, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson
Boulevard, Room 400, Arlington, VA 22203
David A. Laing, Esq., Porter, Wright, Morris
& Arthur, 41 South High Street, Columbus, OH
;
43215
nt

418

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

March 27, 2000
SECRETARY OF LABOR, MSHA
on behalf of MARK L. POLLOCK,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 99-169-DM

v.
Barney's Canyon Mine
MSHA Id. No. 42-02040

KENNECOTT BARNEY'S CANYON
MINING COMPANY,
Respondent

SECRETARY OF LABOR, MSHA
on behalf of TONY M. LOPEZ,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEST 99-170-DM

v.
Barney's Canyon Mine
MSHA Id. No. 42-02040

KENNECOTT BARNEY'S CANYON
MINING COMPANY,
Respondent

DECISION
Appearances:

Mark W. Nelson, Office 'o f the Solicitor, U.S. Department of Labor,
Denver, Colorado, for Complainants;
Laura E. Beverage, Esq., and Karen L. Johnston, Esq., Jackson & Kelly,
Denver, Colorado, for Respondent.

Before:

Judge Manning

These cases are before me on complaints of discrimination brought by the Secretary of
Labor on behalf of Mark L. Pollock and Tony M. Lopez against Kennecott Barney's Canyon
Mining Company ("Kennecott") under section 105(c)(2) of the Federal Mine Saf~!Y .and Health
Act of 1977, 30 U.S.C. §815(c)(3) (the "Mine Act"). A hearing in the cases was held in Salt
Lake City, Utah. The parties presented testimony and docwnentary evidence and filed posthearing briefs.

419

Mr. Pollock filed three complaints of discrimination with the Department of Labor's
Mine Safety and Health Administration ("MSHA") and Mr. Lopez filed one complaint. MSHA
investigated the complaints, determined that Kennecott violated the provisions of section
105(c)(1) as alleged in each complaint, and filed these discrimination cases.

I. FINDINGS OF FACT
Barney's Canyon Mine is a surface gold mine in Salt Lake County, Utah. Several unions
represent the employees at the mine under one collective bargaining agreement. Messrs. Pollock
and Lopez acted as miners' representatives under the Mine Act at the Barney's Canyon Mine.
Mr. Lopez has been a miners' representative since 1990, but his role as a miners' representative
diminished over time. He was chairman of the local steelworkers union and was on the
grievance committee. Mr. Pollock began representing miners in about 1995 and he was quite
active in that role at the time of the events in this case. Between May 20 and June 14, 1998, five
hazard complaints were filed with MSHA by miners at the Barney's Canyon Mine. Mr. Pollock
was directly responsible for filing two of the complaints while Mr. Lopez filed one of the
complaints.
At all pertinent times, Mr. Pollock was an ore-control technician on the day shift . He
was required to perform various duties that sequentially take place at the mine. As an ore-control
technician, Pollock marked the exact locations on benches for the drilling crew to drill holes that
would subsequently be filled with explosives. This task is referred to as "marking pattern."
After the holes are drilled, he tags and collects samples of cuttings that are placed in bags by the
drilling crew. He delivers the bags to the assay laboratory at the mine. Next, he "flags the
holes," using numbered flags that correspond with the bags of drill cuttings. The assay lab
identifies the samples as ore or waste and plots this information on a computer map. The mine's
surveyor performs a survey of the area using a GPS pack and the computer map. With the
assistance of an ore technician or another person, he marks the areas containing ore with green
lath so that the mining crew knows which areas contain gold ore and which areas are waste.
Painted stakes and lath are used to mark the outside boundary of the ore-containing material.
Because of the nature of his work, Pollock travels around the mine in a company pickup and
frequently works independently. At all relevant times, Kennecott was mining in an area of the
mine known as the Meleo pit, which is about a 20- to 30-minute round trip drive from the assay
lab. Mr. Lopez was an ore technician until 1996. In the summer of 1996, he became a driller on
the swing shift.

A.

Mr. Lopez's Discrimination Complaint

On July 10, 1998, Mr. Lopez was assigned to operate Drill No. 102 (the "drill"). During
his preshift inspection, he noted that the side window on the drill was broken. He previously
reported that this window was broken during the week of June 29, 1998. Mr. Lopez's supervisor,
Gil Valdez, told Lopez that the window would be fixed. When Lopez pointed out the broken
window to Valdez on July 10, Valdez told Lopez to get to work. Valdez also told Lopez that he
420

would be sent home ifhe did not operate the drill. Lopez believed that the condition of the glass
was caused by the hydraulic hoses of the drill banging against the window and that he was
worried the he could get glass in his eyes. The window apparently had been replaced the week
before but the hydraulic lines broke it again. Mr. Lopez contacted Kennecott safety
representatives Brian Regan and Steve Lackey. After examining the window, Mr. Regan
concluded that no safety hazard was created by the condition of the glass. Regan noted that the
safety glass was cracked, not broken, and asked Lopez if he could finish his shift and the drill
would be fixed in accordance with the mine's preventive maintenance program.
Lopez also contacted Ray Gottling, Operations Manager. When Gottling arrived at the
drill, he determined that no safety hazard existed. Nevertheless, he shut down the drill because
Lopez seemed so upset about it. Mr. Gottling testified that he was not aware that Mr. Lopez was
concerned about hydraulic hoses hitting the window. (Tr. 1340). Lopez also complained about
hydraulic fluid on the walking surfaces of the truck. After the drill was shut down, Valdez
ordered him to clean the walking surfaces of the truck with a steam cleaner. Lopez testified that
Valdez told him that he ''wasn't through" with him and that he would "get even." (Tr. 392). Mr.
Lopez asked another employee to telephone MSHA to complain about the hazardous condition.
An MSHA inspector subsequently inspected the drill, but he did not issue any citations. The
window had been replaced by the time he arrived.
The next day, Mr. Pollock and Tom Withers, an equipment operator, were doing
reclamation work. Mr. Valdez drove up and asked Mr. Pollock why he is always getting him in
trouble with Mr. Gottling. 1 (Tr. 69). Pollock testified that be told Valdez that if he did things
safely, he would not be in trouble so much. Mr. Withers then asked Valdez how he likes Lopez
and Pollock getting him in trouble by going over his head. Valdez responded, "I'll get even."
(Tr. 69, 275.) Both Pollock and Withers believed that Valdez's threat was serious.
A few days later, Mr. Lopez went on a previously scheduled vacation. When be returned,
Lopez was charged-with a failure to meet Kennecott's mandatory drilling quota. Following a
disciplinary hearing, a disciplinary letter was placed in his file for this offense. (Ex. R-1 ). On
September 13, 1998, Mr. Lopez filed his discrimination complaint with MSHA. He alleges that
this discipline was taken against him in retaliation for his safety complaint.
The disciplinary letter was signed by Valdez and states that Lopez failed to meet the
company's drilling standards during March, May, and June 1998. Id. It further states that if
Lopez failed to meet these standards in any month before March 1999, another disciplinary
hearing would be held. Lopez contends that he should not have been disciplined at all or that, at
most, he should have received an oral warning. (Tr. 463). He believes that if he had not made
the safety complaint described above, he would have received an oral warning. By filing this
1

For example, during the Week of July 7, Pollock reported to Gottling that Valdez's
crew was drilling on a catch bench. The catch bench was not supposed to be drilled or blasted.
Valdez was the drilling supervisor and he admitted to Gottling that it was a mistake.
421

action, Lopez is seeking to have the letter removed from his personnel file along with records of
all other disciplinary actions taken against him by Mr. Valdez.

B.

Mr. Pollock's First Discrimination Complaint

On July 14, 1998, Mr. Pollock filed a safety complaint with MSHA because of his belief
that the drill still presented a safety hazard. (Tr. 63; Ex. C-5). He was especially concerned that
the Mniphy switch on the drill was broken with the result that the drill operator would not know
if the compressor engine "was going to explode." (Tr. 64). The Murphy switch apparently
indicates the temperature of the compressor oil. The complaint also states that the window was
broken again. When MSHA investigated this complaint, it determined that the conditions did not
present a hazard. MSHA determined that the defective Murphy switch merely posed a risk to the
equipment, but that no miners would be injured if the compressor engine overheated.
. On July 15, Gerald Slothower, the engineer and short-range planner, approached Pollock
to tell him that "people in admin were a little upset with [Pollock) for calling MSHA." (Tr. 80).
Mr. Slothower indicated that he believed that Pollock's concerns were not unreasonable.
Slothower was Pollock's supervisor.
Mr. Pollock talked to Laurie Priano, Human Resources Manager, about this alleged
harassment, but she did not believe that he was being harassed. Pollock filed his first
discrimination compfaint with MSHA on August 31, 1998 (MSHA No. RM MD 98-14). The
complaint alleges that as a result of the five complaints filed with MSHA, including the
complaints about the drill, he was continually harassed by mine management, especially Messrs.
Valdez and J. Ed. Switzer, the chief mining engineer.

C.

. Mr. ·Pollock's·Secood-l>iscdmination Complaint

In November 1998, Pollock assisted another Kennecott employee file a complaint with
MSHA. (Ex C-14). On Sunday, December 6, 1998, Pollock entered a break room to eat his
lunch. The television used for training videos was on and was tuned to an NFL football game.
Pollock did not tum off the television and watched the game as he was eating. Mr. Gottling
walked through the room when.Pollock was present but Gottling did not say anything.
On December 7, 1998, Pollock was called to a disciplinary hearing for violating
Kennecott's general code of conduct because he was watching television. At the conclusion of
the hearing, Pollock was advised that he would be given a written warning for the misuse of
·company property. (Ex. C-18).
On December 8, 1998, Mine Superintendent Leonard Wolff told Pollock to report to the
administration building. MSHA arrived at the mine to begin a regular inspection and Pollock
was one of the miners' representatives. Wolff told Pollock that he was to accompany the
inspectors during that portion of the inspection involving the surface mine areas. After the

422

opening conference, Mr. Slothower asked Pollock to come into his office. Slothower handed
Pollock the written warning. Pollock asked why he was being disciplined for such a minor
offense. Slothower said that he was being issued a written warning because of"his abrasive
attitude toward management personnel." (Tr. 102). Pollock testified that he was amazed by
Slothower's statement. He responded by saying: "Well, ifl have such an abrasive attitude, it's
going to be a tough [MSHA] inspection for me to be around management personnel for the next
two or three days." Id. Pollock testified that this was meant as a smart aleck comment that he
would have a tough time being constantly around management employees during the inspection.
Slothower interpreted the conversation differently and believed that Pollock was attempting to
intimidate him into reducing the discipline for the television incident.
Mr. Slothower also asked Pollock ifhe was responsible for the MSHA inspection.
Pollock replied that he did not call MSHA and that it was a regular MSHA inspection. Mr.
Pollock left the building and while traveling around the mine that afternoon, he advised various
people to get the mine in shape for the inspection. For example, Curtis Sanchez was an acting
supervisor that week and was worried about the MSHA inspection. (Tr. 289). Pollock told him
to make sure that equipment operators do thorough preshift examinations and to check the
portable toilets to make sure they are upright and clean. Pollock also examined a highwall with
another supervisor.
On December 9, Pollock arrived at the mine to accompany the MSHA inspection team as
a walk-around representative. Slothower approached Pollock and told him that he was being
suspended for making threats against Kennecott during his conversation with him the previous
day. Pollock was escorted from the mine property and was unable to act as a miners'
representative during the inspection. Another miners' representative accompanied the inspectors
and no citations were issued during the inspection.
One oftheTeasons that Kennecott's managers decided to suspend Pollock was because
they believed that he was going to try to create violative conditions that would be cited by
MSHA. They based that belief on Pollock's statement to Slothower that it was going to be a
"tough inspection" with him around. Thus, Kennecott believed that he might engage in
deliberate sabotage. As discussed above, Pollock did not try to create violations after his
conversation with Slothower on December 8 but worked to try to eliminate potential violations.
A disciplinary hearing was held on December 12. Pollock contends that he was not
permitted to call all of the witnesses that he wanted to call. A meeting was held on December 13
where Pollock was advised that Kennecott was dropping the charge that he threatened to create
violations of safety standards. He was charged with insubordination for making threats to
management. His suspension was reduced to one day. (Tr. 115). He was also required to write a
letter of apology to Mr. Slothower. (Tr. 118; Ex. C-23). A written warning was placed in
Pollock's file describing the reasons for Kennecott's disciplinary action. (Ex. C-25). Pollock
filed grievances for the written warnings and his suspension.

423

On December 21, 1998, Mr. Pollock filed his second discrimination complaint with
MSHA (MSHA No. RM MD 99-02). This complaint alleges that the disciplinary actions that
were taken against him between December 6 and 13 were a direct result of his protected safety
activities. In the complaint he stated that management ''will stop at nothing to harass and
discriminate against miners' representatives [whom] they view as a threat." (Ex. C-15).

D.

Mr. Pollock's Third Discrimination Complaint

On April 20, 1999, Robert Jones, the surveyor, asked Pollock to help him flag and stake
ore in the Meleo pit. Pollock told Jones that Jones was required to ask someone from the
overtime board to help him. The job of assisting Jones flag and stake ore would have taken
about 20-30 minutes. Jones complained to Slothower who then ordered Pollock to report to the
pit at 11 :00 a.m. Pollock reported to the area but remained in his pickup. April 20 was a rainy
day and Pollock passed by the building containing his locker where he stored his rain gear
several times that morning. He did not stop to put his rain gear in his truck.
When Jones arrived at the pit, he parked his truck within 150 feet of Pollock's truck.
Jones tried to contact Pollock by radio but Pollock did not respond. Jones got out of his truck
and began working. He painted the lathing needed to stake ore. Pollock did not attempt to assist
him. Cory Withers, the drill and blast supervisor, 2 drove by and asked Jones for his assistance.
Jones left for a few minutes to assist Withers. When he returned to the pit, he again radi.o ed
Pollock but got no response. Jones then walked over to Pollock's truck and knocked on his
window. Jones was wearing his rain gear and had his GPS pack on his back. When Pollock
opened his window, Jones told him he was ready. As Jones walked toward the area to be
surveyed, he turned back and saw Pollock driving away. Unknown to Jones, Pollock called
Slothower to ask if he could get his rain gear. It would have taken Pollock about 30 minutes to
get his rain gear and return to the pit.
Pollock never helped Jones stake the ore. By the time Pollock got back to the pit with his
rain gear, the GPS system was no longer functioning. Slothower ordered Pollock fo mark pattern
instead. Jones staked the ore himself later that afternoon when the GPS system was working.
Pollock was scheduled to be at a grievance hearing at 1 p.m. that afternoon and did not assist
Jones. Thus, Pollock sat in his truck at the pit from about 10:55 am to about 11 :30 a.m. without
providing any assistance to Jones. Soon after Jones knocked on Pollock's truck window, Pollock
left the area to get his rain gear. Pollock did not mark any pattern that afternoon until after the
hearing.3

2

Cory Withers, who is not related to Tom Withers, replaced Mr. Valdez in this position.
Mr. Valdez died in an auto accident in January 1999.
3

The testimony of Pollock and Jones differed somewhat concerning the events that
morning. I credit the testimony of Jones in all respects. Jones was one of the Secretary's most
credible witnesses.

424

Kennecott management was upset at Pollock's conduct-and conducted an investigation.
At about 11:30 a.m. on April 21, a disciplinary hearing was held concerning this matter. Pollock
was charged with the failure to perform a reasonable job assignment and with insubordination.4
At the conclusion of the hearing, Pollock was sent home and paid for the rest of his shift.
Pollock wanted to call a number of witnesses to the hearing, but this request was denied. These
witnesses were to be called in response to the radio charge which was dropped.
There was a considerable delay before Pollock was notified of the nature of his discipline.
Kennecott management received permission for an extension of time from a union representative.
Pollock was informed by this representative that the company was thinking about terminating
him from his employment.
On May 3, Pollock was presented with a "Last Chance Agreement." Under this
agreement, Pollock would remain an employee but he would, in essence, be on probation. (Ex.
G-29). He would also be required to withdraw all pending complaints that he filed under section
105(c) of the Mine Act. In exchange for this agreement, Pollock's suspension would be reduced
to three days. Pollock refused to sign the agreement and there were extensive negotiations
between the company, union officials, and Pollock. (Exs. G-30-31).
When these negotiations broke down, Kennecott reduced Pollock's termination to an
eight-day suspension with a final warning that future violations of the mine's general code of
conduct will result in termination from employment. (Ex. 32). The warning was issued because
of Pollock's "argumentative and combative behavior and failure to complete ... work
assignments." Id. Pollock was instructed to return to work on May 9. In the meantime, Pollock
filed his third complaint of discrimination with MSHA on May 4, 1999 (MSHA No. RM MD 9909). (Ex. G-26). In the complaint, Pollock alleges that Kennecott terminated him for not signing
the last chance agreement. Pollock remains employed by Kennecott.

II. DISCUSSION WITH FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any
protected right under the Mine Act. The purpose of the protection is to encourage miners "to
play an active part in the enforcement of the [Mine] Act" recognizing that, "if miners are to be
encouraged to be active in matters of safety and health, they must be protected against any
possible discrimination which they might suffer as a result of their participation." S. Rep. No.
181, 951h Cong., l51 Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, 951h Cong., 2nd Sess., Legislative History ofthe Federal Mine Safety and
Health Act of 1977 at 623 (1978).
4

Pollock was also charged with failure to respond to radio calls, but that charge was

dropped.
425

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 ofLabor 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. 1981); Secretary ofLabor on behalfof Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The mine 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 mine
operator cannot rebut the prima facie case in this manner, it nevertheless may defend 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.; Robinette, 3 FMSHRC at 817-18; see also Eastern
Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (41h Cir. 1987).
There is no dispute that Messrs. Lopez and Pollock engaged in protected activity. The
issue is whether the adverse actions taken were motivated by that protected activity. In
determining whether a mine operator's adverse action was motivated by the miner's protected
activity, the judge must bear in mind that "direct evidence of motivation is rarely encountered;
more typically, the only available evidence is indirect." Secretary ofLabor on behalfof Chacon
v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November 1981), rev'd on other grounds, 709
F.2d 86 (D.C. Cir 1983). "Intent is subjective and in many cases the discrimination can be
proven only by the use of circumstantial evidence." Id. (citation omitted). Some of the
circumstantial indicia of discriminatory intent include (1) knowledge of the protected activity; (2)
hostility or animus towards the protected activity; and (3) coincidence in time between the
protected activity and the adverse action.

A.

Mr. Lopez's Discrimination Complaint

Valdez gave Lopez a disciplinary letter for failure to meet Kennecott's mandatory drilling
quota during March, May, and June 1998. The Secretary contends that this letter was issued in
violation of the company's progressive discipline policy. She argues that, at most, Lopez should
have received a verbal warning for this violation. She notes that when other employees failed to
meet the performance standards, no discipline was given. The Secretary also points to the threats
made by Valdez to establish a discriminatory motive. She argues that when Lopez attempted to
discuss Valdez's threats with Ms. Priano, he was rebuffed and, thus, had no choice but to file his
discrimination complaint. Lopez was concerned that ifhe raised other safety issues, he would
face even stronger discipline.
Kennecott contends that its managers recognized that Lopez had the right to shut down
the drill and, at the conclusion of its investigation, it allowed Lopez to do so despite the fact that
no safety hazard was actually present. Lopez contacted MSHA after the drill had been shut
down. Kennecott questions the accuracy of Lopez's description of Valdez's comments to him.
Lopez did not tell Kennecott managers and safety representatives that he had been threatened by

426

Valdez. Ms. Priano testified that she did not hear of these alleged threats from Lopez, but
learned about them during the course of a grievance hearing involving Mr. Pollock.
Kennecott argues that Lopez did not suffer any adverse action as a result of Valdez's
alleged threats. First, the Secretary failed to establish that the threats were actually made or that
he reported the threats to anyone in management. In his statement to MSHA, Valdez denied
making any threats to Lopez. (Ex. R-23). Valdez also stated that he was joking around when he
told Pollock and Withers that he would "get even." Id. Even ifthe threats were made, Kennecott
maintains that an unrealized threat cannot conStirute adverse action m1derthe Mine Action.
Kennecott contends that the Secretary did not establish a nexus between the protected
activity and any adverse action. The company has an excellent record with respect to safety
issues and it does not take adverse action against employees who raise safety issues. Lopez's
discipline was motivated solely by his failure to meet the company's drilling standards. The
standards, which set forth how many holes eacli diiller must complete on a monthly average,
were provided to drillers in February 1998. (Ex. R-28). Lopez failed to meet the standard for
three out of four months. In essence, Lopez was placed on probation because of his failure to
meet the standards.
Kennecott argues that the Secretary also fai led to establish disparate treatment. The
Secretary did not establish that Lopez was treafed more harshly than those similarly situated.
Kennecott states that the Secretary did not identify any similarly situated employee who was
treated better than Lopez. Lopez was the only employee who missed the standards for three
months and, as a consequence, he was issued the warning letter.
I find that the Secretary established that adverse action was taken against Lopez. I credit
the testimo~y of Lopez and Tom Withers that Valdez made t.hre~ts· against I:,opez. Although
Valdez could not testify to counter Lopez's testimony, I note that Lopez's testimony is consistent
with the testimony of Pollock and Tom Withers on this issue. The fact that Lopez did not
immediately report these threats is not surprising because Valdez was his immediate supervisor.
He wanted the window on the drill fixed. Raising issues about threats would not have helped
resolve the safety issue. If Valdez denied making the threats to upper management, it would put
Lopez in a very difficult position.
I reject Kennecott's argument that since the threat was never carried out, it cannot
constitute adverse action. First, as discussed below, I find that the threat was carried out. In
addition, even if it were not, such threats on the part of a front line supervisor would have a
chilling effect on the right of miners to raise safety issues. No miner is going to raise a safety
issue if his supervisor tells him or other employees that he will "get even."
I find that the Secretary established that Lopez's discipline was motivated, at least in part,
by his protected activity. As stated above, direct evidence of motivation is rarely encountered.
In this case, however, I find that there is a direct link between the protected activity and the

427

adverse action. Mr. Valdez expressed his hostility to the protected activity and he is the person
who issued the disciplinary letter. He had knowledge of the protected activity; he displayed
hostility towards the protected activity; and the adverse action was taken in a matter of days after
the protected activity occurred.
Valdez based the discipline on Lopez's failure to meet the production standards for
drillers. The letter he issued stated that if Lopez failed to meet any of the required drilling
standards for a nine-month period he could be discharged. {Ex. R-1 ). This was the first time that
Lopez failed to meet production standards at the mine. (Tr. 1438). He felt that ifhe made any
mistake, even a minor one, he would face discharge. Although Valdez had warned the drilling
crew that some crew members were not meeting the drilling quotas, Mr. Lopez had not received
a verbal warning specifically directed at his performance. (Tr. 1444). Mr. Lopez met all of the
company's other requirements during these months.
KelUlecott articulated a legitimate business justification for disciplining Lopez. He did
not drill a sufficient number of holes during three months. The memo from Gil Valdez, dated
February 24, 1998, that set forth the new drilling standards, provided that "should a driller fail to
make the standard three (3) times in any rolling 12-month period, the driller will be considered
for disqualification." (Ex. R-28). The Secretary argues that the discipline was too harsh to be
solely motivated by the company's stated justification and that Lopez's protected activity played
a part.
I agree with the Secretary that Lopez's protected activities were considered when it was
determined that a written warning would be issued. Mixed motive cases are difficult to resolve
because "[o ]nee it appears that a proffered business justification is not plainly incredible or
implausible, a finding of pretext is inappropriate." Chacon, 3 FMSHRC 2516. In this case, the
issue is whether Kennecott would have issued the warning letter for his unprotected activities
alone. I find that Kennecott would not have issued the letter had Lopez not engaged in protected
activity. I reach this conclusion based on Valdez's hostility to the protected activity and the
coincidence in time. Although I cannot speculate what discipline he would have received ifhe
had not engaged in protected activity, I find that Mr. Valdez was motivated, in part, by the
protected activity when he issued the disciplinary letter. This violation was serious and
Kennecott's negligence was moderate. A penalty of$1,000 is appropriate.

B.

Mr. Pollock's First Discrimination Complaint

Mr. Pollock engaged in protected activity by filing safety complaints with MSHA. He
did not receive any discipline for the protected activity set forth in his first complaint of
discrimination. In the Secretary's complaint of discrimination filed with the Commission, the
Secretary alleges that Pollock "was and continues to be threatened, harassed, and intimidated" by
Kennecott for exercising his rights under the Mine Act. The Secretary seeks an order directing
Kennecott to "cease and desist from threatening, harassing, or intimidating Mr. Pollock'' for his
protected activity.
428

The alleged threats and intimidation came from Mr. Valdez and Mr. Switzer. Valdez's
threats are discussed above in conjunction with Mr. Lopez's discrimination complaint. For the
same reasons discussed above, I find that Mr. Valdez made threats against Mr. Pollock as a result
of Pollock's protected activity.
The alleged harassment by Mr. Switzer is described by the Secretary as ''yelling at
Pollock over benign W<?rk performance issues." (S. Br. 7). As proof of discriminatory animus,
Pollock states that Switzer asked Slothower in July 1998 whether Pollock had enough work "to
keep [him] busy to keep him from calling MSHA all the time." (Tr. 81). Pollock believes that
Mr. Switzer continually harassed him after he made complaints to MSHA.
One of the incidents relied upon by the Secretary occurred in August 1998, when Switzer
was filling in as Pollock's supervisor in place of Slothower. Pollock testified that Switzer
wanted Pollock to mark more pattern than Slothower usually required. When Pollock questioned
the need to mark more pattern, Switzer yelled at him for arguing with him about it. (Tr. 84-85).
Switzer testified that he asked Pollock three times to mark pattern in a certain area and he refused
to do it. (Tr. 1010-11 ). At a subsequent meeting during which the duties of ore technicians were
discussed, Switzer explained to Pollock that he needed to mark as much pattern as possible so
that Kennecott can get the results back from the assay lab as quickly as possible after the holes
are drilled. (Tr. 1015). He explained that marking more holes gives the drilling crew flexibility
as to where they can drill on a particular shift. At this meeting, Pollock complained about his job
duties, argued with management about these duties, and argued about the need to mark additional
pattern. (Tr. 1016).
Another incident relied upon by Pollock concerned overtime pay. Mr. Jones was
authorized to work overtime in August 1998 doing some reclamation work. When Pollock found
out about this he complained to Switzer about this overtime and asked why he could not work
overtime. (Tr. 1921 ). Switzer responded in a heated manner that he determined who works
overtime not Pollock. Switzer canceled Jones's overtime.
I find that the Secretary did not establish any connection between Switzer's alleged
"harassment" of Pollock and Pollock's discrimination complaints. First, both Slothower and
Switzer denied that Switzer made the statement to keep Pollock busy to keep him from filing
complaints. I credit their testimony in this regard. Second, Switzer's relationship with Pollock
was always strained especially after Pollock was suspended by Switzer in 1996. Pollock refused
to pick up and deliver sample bags to the assay lab in July 1996 because he believed that some of
the bags were heavier than normal. (Tr. 1000-02). When Pollock was told that someone else
would pick them up, Pollock refused to tag the samples. Switzer met with Pollock later that day
to discuss the matter. Pollock came into Switzer's office ''very agitated," he was "yelling and
screaming," and he was very "irate." Pollock received a three-day suspension which was upheld
by the labor arbitrator. (Ex. R-21).

429

The conflict between these two men in August 1998 also concerned whether Pollock
refused to complete a work assignment and this conflict does not demonstrate animus towards
protected activity. Switzer was Slothower's supervisor and Switzer believed that the ore
technicians were not marking sufficient pattern. He resented Pollock's argumentative attitude
about the issue. He believed that Pollock was refusing to carry out a reasonable job assignment.
I find that the evidence of record establishes that Switzer believed that Pollock exhibited
disregard for management directives and that he displayed an aggressive attitude when given job
assignments that he did not like or disagreed with. I find that any hostility Switzer exhibited
towards Pollock was a result of the unprotected activity discussed above and that Pollock's
protected activity played no part in Switzer's relationship with or attitude towards Pollock. Even
assuming that Switzer was also motivated, in part, by Pollock's protected activity when he
allegedly harassed Pollock, I find that Switzer would have treated Pollock in the same manner for
the unprotected activity alone.
As a consequence, only the threats made by Mr. Valdez support Mr. Pollock's first
discrimination complaint. I reject the other allegations contained in Pollock's first complaint of
discrimination filed with MSHA. This violation was moderately serious and Kennecott's
negligence was moderate. A penalty of $500 is appropriate.

C.

Mr. Pollock's Second Discrimination Complaint

The Secretary contends that "Kennecott's removal of Pollock from the mine on December
9, 1998, was a direct result of Kennecott's concern about Pollock fulfilling his role as a proactive miners' representative during the course of the inspection." (S. Br. 11). Kennecott
contends that, because Pollock denied watching television during his lunch break on December 6
at the disciplinary hearing on December 7, he was issued a written warning for the offense.
Kennecott states that if Pollock had admitted watching television he would have received an oral
warning. It maintains that when Pollock was given the written warning on December 8, Pollock
was angry and tried to get it reduced. Kennecott contends that when Slothower refused to reduce
the offense to an oral warning, "Pollock warned Slothowerthat the company would pay for the
issuance of the discipline in the course of the inspection." (K. Br. 28). Kennecott argues that
Slothower reasonably perceived Pollock's statements as a threat against the company, no matter
what Pollock's exact words were during this conversation. Kennecott believes that this
perceived threat is sufficient to support a charge of insubordination and a two-day suspension.
Pollock's "expression of disrespect and disobedience toward authority'' supports the charge of
insubordination even assuming that Pollock did not intend his statement to Slothower to be a
threat. (K. Br. 31).
The first issue is whether Pollock's discipline was motivated in any part by his protected
activity. The events at the disciplinary hearing on December 7 are disputed by the parties.
Pollock testified that he did not deny watching television on December 6. (Tr. 96). Mr. Jones
also testified that Pollock did not deny watching television during the disciplinary hearing. (Tr.

430

318). Mr. Slothower and Melissa Miller? a human resources employee, testified that Pollock
denied watching television on December 6 during the disciplinary hearing. (Tr. 985, 1180-81 ).
Slothower testified that he issued the written warning because Pollock "lied" during the
disciplinary hearing when he stated that he was not watching television. (Tr. 1181 ). Pollock
stated that he would have accepted an oral warning. (Tr. 179).
There i~ no dispute that, during the disciplinary hearing, Pollock argued that watching the
company television did not violate the general code of conduct. I fipd that during the course of
this discussion Pollock failed to take responsibility for his actions but that he did not
affirmatively deny that the television was on or that he looked at the television. His point may
well have been that simply being in a room with a television on does not violate the code of
conduct unless the employee turned it on. In his complaint filed with MSHA, Pollock merely
mentions the television incident. At the hearing in this cas~, Pollock testified that he did not
know what motivated the company to issue the warning letter. (Tr. 178).
I credit the testimony of Mr. Slothower that he would have given Pollock an oral warning
if Pollock had accepted responsibility for his actions. Whether or not Pollock actually lied at the
disciplinary hearing, Slothower reasonably believed that Pollock failed to admit that he violated
the general code of conduct. 5 I find that Slothower issued the written warning for that reason
alone and that he was not motivated, in any part, by Pollock's protected activity.
Pollock's second discrimination complaint principally focuses on the events of December
8-12, 1998. As stated above, the Secretary alleges that Pollock was removed from mine property
because Kennecott was concerned that Pollock would exercise his statutory rights during the
MSHA inspection. I find that Slothower was intimidated by Pollock's statement to him in his
office on December 8. I note that-Slothower, who is a geologist, is not a tough manager. He
goes out of his way to avoid conflict with the employees he supervises. (Tr. 1174-75). Until
December 8; his relationship with Pollock was "amicable." Id. Whatever words were actually
used, Slothower felt that Pollock was using his position as a miners' representative to intimidate
him to reduce his discipline for watching television. (Tr. 1190). Kennecott argues that Pollock's
misuse of his position as a miners' representative is not protected under the Mine Act. I agree. If
a miner, including a miners' representative, threatens to create a hostile environment during an
MSHA inspection in order to reduce the severity of disciplinary action taken against him, such
threats are not protected by the Mine Act. In this case, Slothower did not believe that Pollock
would create a hazard that would threaten the safety of miners or that he would damage company
property, but he feared that Pollock would create a hostile environment that would create friction
between the company and MSHA. Slothower believed that Pollock might "go out and try to
cause the company to get an undeserved citation." (Tr. 1189-90). This belief was shared by
Wolff and Priano. (Tr. 677, 764-65).

At the hearing in this case, Pollock admitted that watching the company television was
a violation of Kennecott's general code of conduct. (Tr. 179).
5

431

Pollock had a reputation as a rather hard-nosed advocate for safety at the mine.
Kennecott takes mine safety and health issues seriously and Barney's Canyon Mine received
MSHA's Sentinels of Safety Award in 1998. MSHA Inspector Okuniewicz testified that this
mine has an excellent history of previous violations compared with other mines of its size. (Tr.
529-30). The mine had not interfered with Pollock's right to act as a walk-around representative,
but a number of disputes have arisen over the years in which Pollock disagreed with the company
on safety issues. It is quite clear that Pollock is an "in-your-face" type of person who does not
back down when he believes that a safety hazard is present. He is also a strong advocate for the
union. I find that most of the hostility that developed between the company and Pollock is a
result of his union activities and the perception that he is frequently disrespectful and disobedient
to Kennecott's managers. The record shows that he frequently argues with supervisors about
work assignments. Slothower, on the other hand, is a rather quiet and unassuming individual.
Was Slothower's decision to suspend Pollock motivated in any part by his protected
activity? The Secretary argues that the "timing of the discipline in relation to Pollock's
involvement with MSHA activities at the mine, coupled with Kennecott's knowledge of
Pollock's involvement with MSHA, is more than sufficient to establish the requisite motivational
nexus between Pollock's protected activity and the adverse action taken against him.'' (S. Br.
12). Slothower knew that Pollock was an MSHA advocate and that, even if he did not create
violations, he would aggressively assist MSHA inspectors in finding violations. His right to do
so is protected under the Mine Act. A miners' representative has the right to point out violations
to an MSHA inspector.
It is important to recognize that until Pollock made the comment to Slothower that it was
going to be a "tough inspection," Pollock was scheduled to be the miners' representative during
the inspection. Kennecott had made arrangements for Pollock to attend the opening MSHA
conference and to accompany the MSHA inspectors during the inspection. Because of his work
schedule that week, Pollock was going to be paid at his overtime rate during the MSHA
inspection. Thus, until the "tough inspection" conversation, there was no indication of any
animus against Pollock's full participation in the inspection as a walk-around representative,
despite his reputation as a strong safety advocate.

Pollock was suspended in December 1998, because Kennecott perceived that he
threatened Slothower. Although Slothower knew of Pollock's past protected activity, there is no
evidence that he was hostile to this activity. Indeed, Slothower told Pollock in July that he
understood his concerns about the drill. As stated above, Pollock was scheduled to be a walkaround representative during the inspection. Slothower felt that Pollock was attempting to
intimidate him to reduce the written warning to an oral warning.
The fact that a miner frequently makes safety complaints does not immunize him from
discipline for threatening management. See e.g. Sapunarich v. Lehigh Portland Cement Co., 11
FMSHRC 81, 88 (January 1989)(ALJ). In reviewing a claim that a whistle-blower had been
discriminated against for raising safety issues at a nuclear power plant, the Seventh Circuit noted
432

that "an employee's insubordination toward supervisors and c.oworkers, even when engaged in
protected activity, is justification for termination." Kahn v. U.S. Secretary ofLabor, 64 F. 3d
271, 279 (1995)(citations omitted). The court went on to state that the rights afforded employees
under the Energy Reorganization Act "are a shield against employer retaliation not a sword with
which one may threaten ... supervisors." Id. The Mine Act affords miners broader protection
than a whistle-blower statute. fu addition, one must take into consideration the fact that, in the
mining industry, harsh words are often spoken between supervisors and employees. Although
Slothower enjoyed a reasonably good relationship with Pollock, Slothower genuinely felt
threatened by Pollock's "tough inspection" statement. Slothower's decision to discipline Pollock
was based solely on Pollock's statement to him on December 8.
I also find that Pollock ~as not provoked into making the statement. The "tough
inspection" statement was made in the context of an informal conversation in Slothower's office.
Slothower told Pollock that he would get along with managers better if he were less abrasive.
(Tr. 1185). At the hearing, Pollock testified that he was "amazed" by Slothower's comment.
(Tr. 102). I find this response by Pollock to be rather disingenuous. As stated above, Pollock
was known as an in-your-face type of person and he had quite a few disagreements with
managers at the mine about work-related issues. Pollock knew about the written warning an_d he
did not raise safety issues at the meeting. Thus, I find that nothing in the informal conversation
that occurred that morning reasonably provoked Pollock's response.

The Secretary argues that other evidence demonstrates Kennecott's hostility to Pollock's
protected activity. For example, Slothower asked Pollock if a call from him precipitated the
MSHA inspection. The Secretary also relies on testimony from Mr. Wolff that, although a
miners' representative has the right to act as "a second set of eyes for the inspector," he takes a
dim view ofit. (Tr. 680-82). I find that Wolff merely stated the obvious. Every mine manager
would prefer miners to point out safety violations to management or the company's safety
department first rather than to MSHA so that the company can be given the opportunity to correct
the problem. Wolff recognized that Pollock had the right to show violations to an inspector. His
statement that he prefers to correct safety hazards in house does not indicate specific animus
towards Pollock's protected activity. The Secretary also criticizes the fact that there was a delay
between the conversation between Pollock and Slothower and the decision to suspend Pollock.
Slothower testified that he does not like to discipline employees so he usually thinks about it first
and seeks advice from upper management. (Tr. 1188-89). The ultimate decision to discipline
Pollock was Slothower's and he based his decision on the factors discussed above. (Tr. 1192).

I find that Kennecott had a legitimate business justification for disciplining Pollock. I do
not have the authority to determine whether the terms of his discipline were fair or reasonable.
The "Commission does not sit as a super grievance board to judge the industrial merits, fairness,
reasonableness, or wisdom of an operator's employment policies except insofar as those policies
may conflict with rights granted under section 105(c) of the Mine Act." Delisio v. Mathies Coal
Co., 12 FMSHRC 2535, 2544 (December 1990)(citations omitted). I conclude that Mr. Pollock's
suspension in December 1998 was not motivated in any part by his protected activity.
433

D.

Mr. Pollock's Third Discrimination Complaint

When Pollock would not help Jones stake and flag ore on the morning of April 20, 1999,
Slothower walked up to Pollock's truck and told Pollock to report to the Meleo Pit at 11 a.m. to
assist Jones. Pollock told Slothower that Jones should get help from the overtime board. In
response, Slothower told Pollock not to dictate policy and that Jones did not need to go to the
overtime board. (Tr. 218). Pollock told Slothower that he was going to file a grievance over this
issue because Jones was never required to help the ore technicians. (Tr. 219). Pollock construes
Slothower's order to help Jones stake the ore to be harassment and favoritism because Jones is
never required to help him. Id. Pollock admits, however, that assisting the surveyor is part of
the job responsibility of an ore technician. (Tr. 221 ). Such assistance may include staking and
flagging ore. (Ex. R-5). Pollock provided such assistance in the past.
Kennecott argues that Pollock's response to Slothower's reasonable job assignment
"encapsulates the real issue: Pollock does not want to do anything that he perceives to be more
than his fair share, even when it is included in his job responsibilities and is a direct order from
his supervisor." (K. Br. 37). Kennecott contends that Pollock's conduct between 11:00 and
1:00 a.m. demonstrates his continuing resistance to carry out this job assignment despite a direct
order from Slothower. It maintains that Pollock sat in his truck for about 30 minutes while Jones
worked at preparing the stakes without making any effort to assist Jones. When Jones walked
over to his truck to specifically request his assistance, Pollock abruptly left the area without
notifying Jones. Kennecott argues that Pollock knew that Jones could finish the job in the time it
took him to drive to his locker to get his rain gear and return to the pit. It maintains that Pollock
deliberately disregarded Slothower's order to assist Jones. If Pollock had helped Jones, the job
could have been completed by noon. Kennecott states that it disciplined Pollock for his refusal
to complete a reasonable job assignment.
The Secretary argues that "the undisputed facts establish that none of [the] purported
reasons for discipline occurred." (S. Br. 15). She points to testimony from Jones that Pollock
was not insubordinate to him. (Tr. 323). Jones also testified that this was the first time that
Pollock was assigned to assist him and he did not do so. (Tr. 335). She also relies on the
testimony of Slothower that, had the GPS system not failed, Jones and Pollock would have had
time to finish the survey after Pollock retrieved his rain gear. (Tr. 1289-90). The Secretary
argues that the reasons offered by Kennecott for Pollock's discipline are "contrived and
inconsistent." (S. Br. 16).
The Secretary submits that Pollock was disciplined because of his protected activities
including the fact that he filed two complaints of discrimination with MSHA. She believes that
the last chance agreement confirms the relationship between Pollock's protected activities and
the adverse action taken against him. She maintains that Pollock was treated far more harshly
than other employees who violated company rules and that the last chance agreement was unlike
anything anyone had seen before. She concluded that the discipline given Pollock far exceeds
the discipline received by other employees for significantly more serious infractions.

434

The issues surrounding this discrimination complaint are factual in nature. The Secretary
relies heavily on a disparate treatment theory. The other ore control technician, Carl Bluth, had a
significant absentee problem and he frequently failed to fill out laboratory sample sheets as
required. The Secretary points to the fact that Bluth only received oral warnings for failing to
perform this important part of his job duties. In addition, Bluth was put on probation in
December 1998 for excessive absences, yet when he violated the terms of his probation in
August he was given a .second chance. Kennecott contends that both Pollock and Bluth have
failed to fill out laboratory sample sheets and that Pollock was treated no more harshly than
Bluth. Moreover, Slothower testified that Bluth's alleged infraction was never brought to his
attention. (Tr. 1268, 1477). In addition, Kennecott argues that this issue is not relevant because
the incidents upon which the Secretary relies occurred after Pollock returned from his April 1999
suspension. (Ex. G-45).
Except as discussed below, I find that Kennecott rebutted the Secretary's prima facie case
by showing that the adverse action was not motivated in any part by Pollock's protected activity.
The dispute between Slothower and Pollock concerned his work assignment on April 20, 1999. I
credit Slothower's testimony and find that he reasonably believed that Pollock was deliberately
refusing to carry out a work assignment. Pollock refused to help Jones until he was directly
ordered to do so by Slothower. He argued with Slothower about the job assignment. When
Pollock went to the pit, he sat in his truck while Jones began working. Pollock drove away in his
truck shortly after Jones knocked on Pollock's truck window. Thus, it was reasonable for
Slothower to conclude that Pollock was deliberately defying his order to help Jones. The fact
that Jones did not regard this as "insubordination" or that Pollock helped Jones in the past is
irrelevant. Pollock did not want to help Jones; he argued with Slothower about it; and he
managed to avoid helping him. The entire project could have been completed in less than 45
minutes. No protected activity was involved. Nothing in the record indicates that any part of
Slothower's decision to discipline Pollock was based on his prior protected activity.
Pollock ha~ a history of arguing about job assignments with supervisors. As discussed
earlier in this decision, he argued with Switzer about how much pattern should be marked, and he
refused to tag and deliver sample bags to the lab if they were not filled correctly. The record
documents other incidents in which Pollock argued with managers about overtime, working
hours, and work assignments. ~tis significant that Pollock regarded Slothower's order that he
help Jones as harassment and favoritism because Jones was never required to help him. The
Mine Act does not protect an hourly employee who continually questions or argues with
supervisors about job assignments, working hours, and the manner in which the mine is being
managed. Such disputes are not protected under the Mine Act unless they involve safety issues.
The Secretary's reliance on disparate treatment is misplaced. There are no other
employees whose conduct is comparable to Pollock's. None of the other employees that the
Secretary points to for comparison had a history of arguing with managers about job assignments.
Mr. Bluth, for example, had an absentee problem. He was placed on probation and then given a
second chance. Pollock, on the other hand, was given an award by Kennecott in July 1999 for
435

seven years of perfect attendance. (Ex. G-28). Both Bluth and Pollock failed to completely fill
out the laboratory sample sheets some of the time, but there is no showing that Pollock was
treated more harshly. The Secretary argues that Bluth was not as good an ore technician as
Pollock. Even ifl assume that to be true, I do not have jurisdiction to be Solomon in this case to
determine who deserves to be disciplined and what discipline should be meted out.
· The Secretary also relies on the terms of the last chance agreement to establish her case.
(Ex. G-29). I agree that the last chance agreement is the most troubling aspect ofthis case. I
credit the testimony of the Secretary's witnesses, including union officials, that this agreement
was unlike anything they had seen at the Barney's Canyon Mine. Paragraph D of that agreement
is of particular concern in the context ofthis Mine Act proceeding. In that paragraph, Pollock
was required, as a condition of keeping his job, to admit that the discrimination complaints he
filed with MSHA were ''without foundation or merit and were filed only in an attempt to shield
myself from discipline for my misconduct." Id. As stated above, Pollock refused to sign the
agreement. He was allowed to return to work, was given an eight-day suspension, and was told
that future violations of the mine's general code of conduct would result in his termination.
I find that the last chance agreement violated section 105(c) of the Mine Act. An operator
cannot demand that a miner waive his Mine Act rights as a precondition to continued
employment. Such a provision puts a miner in an untenable position at odds with the protections
set forth in the Mine Act. He must either face termination or give up his rights. The agreement
was not reached following negotiations between the parties but was compelled by Kennecott. A
mine operator cannot include in its disciplinary program a provision that a miner must waive his
section 105(c) rights as a precondition to employment or reduced discipline. Requiring Pollock
to sign Paragraph D was an obvious and egregious violation of section 105(c). Even though
Pollock did not sign the last chance agreement, other miners at Barney's Canyon may well be
reluctant to raise safety issues or file safety complaints with MSHA. It had a chilling effect on
miners' riglits.
The discipline that Pollock was ultimately given did not include any references to his
Mine Act rights. Because I find that Slothower did not discipline Pollock for his protected
activity, the issue is whether the last chance agreement is evidence of a discriminatory motive.
Slothower wanted to terminate_Pollock but was not involved in drafting the last-chance
agreement. (Tr. 1224). Mr. Pollock was under probation as a result of his previous discipline for
insubordination in December 1998. After negotiations between Kennecott and the union broke
down over the last-chance agreement, Kennecott gave Pollock a final warning and suspended
him for nine days. I find that Kennecott's attempt to impose Paragraph D of the last-chance
agreement does not indicate that Slothower or Kennecott was motivated by his protected activity
when it was decided that he should be disciplined for insubordination.
I disagree with the Secretary's characterization of Kennecott's rationale for disciplining
Pollock as contrived and inconsistent. Slothower was responsible for supervising Pollock. He
believed that Pollock was becoming increasingly defiant of management direction. He knew of

436

many instances where Pollock refused to follow his orders and company policy. It was this
history that lead Slothower to conclude that discipline was necessary following the events of
April 20, 1999. I find that Kennecott established that this discipline was not motivated by his
protected activity.
Kennecott violated section 105(c) when it required Pollock to sign the last-chance
agreement. This violation was very serious and Kennecott's negligence was high. A penalty of
$10,000 for this violation is appropriate.

E.

Consideration of Mr. Pollock's Cases as a Whole

Because Mr. Pollock engaged in protected activity over an extended period oftime as a
miners' representative, it is important to look at his case as a whole and not simply analyze each
complaint of discrimination in isolation. The Secretary is alleging that Kennecott engaged in a
course of conduct to discourage Pollock from being a zealous safety advocate. She contends that
Kennecott's discipline of Pollock would tend to have a chilling effect on other miners'
expressing safety concerns. Some of the evidence of record supports the Secretary's position.
Mr. Jones, for example, testified that any individual who raises safety concerns "will have a
difficult relationship with this particular administration." (Tr. 335). He also stated that "if
you're as involved as [Pollock] is in safety issues out there, that you're going to have a hard time
with the Company." (Tr. 325). I credit Mr. Jones's testimony in this regard and find that the
company was becoming increasingly impatient with Pollock's aggressive safety advocacy.
I find that the Kennecott's relationship with Pollock was influenced at least in part by
Pollock's safety advocacy. It is difficult to separate Kennecott's animosity towards his
unprotected activities from its dislike of his zeal for safety issues. It is particularly difficult to
analyze this issue because, in each instance, Kennecott had reasons for disciplining Pollock.
As a consequence, I will assume that the Secretary established that the decision to
discipline Pollock in December 1998 and April/May 1999 was motivated in some part by his
protected activities. The issue is whether Kennecott affirmatively proved that it considered
Pollock's unprotected activity when disciplining him and would have disciplined him for that
conduct alone. In Bradley v. Belva Coal Co., the Commission set out the framework for
analyzing this affirmative defense, as follows:
[T]he operator must prove that it would have disciplined
the miner anyway for the unprotected activity alone. Ordinarily, an
operator can attempt to demonstrate this by showing, for example,
past discipline consistent with that meted out to the alleged
discriminatee, the miner's unsatisfactory past work record, prior
warnings to the miner, or personnel rules or practices forbidding
the conduct in question. Our function is not to pass on the wisdom
or fairness of such asserted business justifications, but rather only
437

to determine whether they are credible and, ir so, whether they
would have motivated the particular operator as claimed.
4 FMSHRC 982, 993 (June 1982}.
As stated above, there are no other employees at the Barney's Canyon Mine who can be
compared with Pollock. As stated by Kennecott, "insubordination is not a common problem and
discharge and suspensions for such behavior are limited." (K. Br. 49). The employees that the
Secretary offers for comparison were not charged with failure to follow the orders of a supervisor
or insubordination. Pollock has been involved in a number of such disputes, as discussed in this
decision. Pollock is a careful and diligent ore technician. He has been granted a great deal of
independence by Kennecott in the performance of his job duties. Kennecott's complaint is that
when he is directed to perform any task that is outside his daily routine he argues with his
supervisors about it. Pollock was given a number of warnings about his combative attitude and
refusal to perform work assignments. Both Switzer and Slothower expressed concern about it to
Pollock. Finally, Kennecott's General Code of Conduct requires employees to perform work
assignments and comply with instructions from supervisors.
Based on the record, I find that Kennecott established that it would have disciplined
Pollock for his unprotected activity alone and that the reasons given by Kennecott were not
pretext. Based on credible evidence that Kennecott is not always receptive to safety complaints
from miners, I include an order that Kennecott cease and desist from taking any adverse action
against miners who exercise their rights under section 105(c) of the Mine Act. This order is
entered as part of the remediation for the Lopez's complaint and Pollock's first and third
complaints.
Th~ Commission's recent decision in Secretary ofLabor olb/o Bernardyn v. Reading

(March 16, 2000), discusses issues that are relevant here.
Anthracite Co.; 22 FMSHRC
In that case, a miner raised safety issues and, in the process, used profanity and made what might
be construed as threats. The Commission held that a miner should be given leeway for impulsive
behavior when raising safety issues or refusing to perform a task that he believes is unsafe. As
the Commission stated, "[w]hether an employee's indiscrete reaction upon being provoked is
excusable is a question that depends on the particular facts and circumstances of each case." Id.
at Slip. Op. 9. Subject to limits, I believe that if a miner is engaged in protective activity, he
should not be stripped of his rights under the Mine Act simply because, in raising the safety
issues, he spontaneously and impulsively says impertinent things to his supervisor.6

6

As the dissent states in Bernardyn: "A miner must feel free to communicate about
[safety] issues - with a management safety director, a foreman, or a union official - without
undue concern about whether the complaint is couched in an acceptable format, and thus should
not be fired for the manner in which he states them except in extreme circumstances." Slip. Op
12-13.
438

Pollock was often emotional when he raised safety issues. He states that he became
agitated only ifhe felt that supervisors were not responding in an appropriate fashion. Thus,
:from his point of view, he became aggressive when he was provoked by management. The
events giving rise to his December and April/May discipline, however, did not involve safety
disputes. In each instance, the dispute concerned work rules and job assignments. Although
aggressive behavior while discussing safety disputes may be protected by the Mine Act, such
behavior is not protected if the discussions concern activities that are not protected. Otherwise, a
mine operator would have a difficult time disciplining a miner who is actively involved in safety
issues for insubordination or other unprotected conduct. I find that the conduct that gave rise to
Pollock's discipline was not protected in this manner.
The record in this case consists of about 1,480 transcript pages and over 7 5 exhibits. As a
consequence, I could not discuss all of the evidence in this decision. Any evidence that is
inconsistent with my findings and conclusions is hereby rejected.
Ill. CIVIL PENALTY CRITERIA

Section 11 O(i) of the Mine Act sets forth six criteria to be considered in determining
appropriate civil penalties. The Barney's Canyon Mine is a relatively large operation with
388,262 man hours worked during 1998. The total number of man hours worked at all
operations is 5,594,546 in 1998. In the two years prior to May 1, 1999, the mine was issued 24
citations and orders and paid $1,634 in civil penalties. The penalties assessed in this decision
will not have an adverse effect on Kennecott' s ability to continue in business. It has not been
shown that Kennecott failed to demonstrate good faith with respect to the charges brought by the
Secretary in these cases. Based on this criteria, I find that the penalties set forth below are
appropriate.

IV. ORDER
For the reasons set forth above, I hold that Kennecott discriminated against Tony Lopez
when he was issued a disciplinary letter on July 23, 1998, by Gill Valdez. Kennecott is
ORDERED to remove the letter from his personnel file and this letter shall not be considered as
part of his disciplinary history ~y Kennecott. All other allegations contained in this complaint
. and any other reliefrequested by the Secretary and Mr. Lopez are DENIED. Kennecott is
ORDERED TO PAY the Secretary of Labor a civil penalty in the amount of $1,000 for this
violation of section 105(c) within 40 days of the date of this decision.
For the reasons set forth above, I hold that Kennecott discriminated against Mark Pollock
when Mr. Valdez made threats against him in July 1998. Kennecott is ORDERED to cease and
desist from making threats against Mr. Pollock or otherwise discriminating against Mr. Pollock
for activities that are protected under section 105(c) of the Mine Act, including telephoning
MSHA with safety complaints. All other allegations related to Mr. Pollock's first complaint of
discrimination (No. RM MD 98-14) and any other relief requested by the Secretary and
439

Mr. Pollock are DENIED. Kennecott is ORDERED TO PAY the Secretary of Labor a civil
penalty in the amount of $500 for this violation of section 105(c) within 40 days of the date of
this decision.
For the reasons ser forth above, I hold that Kennecott did not discriminate against Mark
Pollock when it disciplined him in December 1999. Accordingly, the Secretary's complaint of
discrimination filed with respect to this discipline (RM MD 99-02) is DISMISSED.
For the reasons set forth above, I hold that Kennecott discriminated against Mark Pollock
when it required him to sign the last chance agreement as a result of events that took place on
April 20, 1999, because Paragraph D of that agreement violated the Mine Act. Kennecott is
ORDERED to cease and desist from including such language in any future last chance
agreements it may execute with respect to any employee at its mine. All other allegations related
to Mr. Pollock's third complaint of discrimination (RM MD 99-09) and any other relief
requested by the Secretary and Mr. Pollock are DENIED. Kennecott is ORDERED TO PAY
the Secretary of Labor a civil penalty in the amount of $10,000 for this violation of section
105(c) within 40 days of the date of this decision.
For the reasons set forth above, Kennecott is ORDERED to cease and desist from taking
adverse actions against any miner who exercises his or her rights under section 105(c) of the
Mine Act. This decision is my final decision and order in these cases.

Richard W. Manning
Administrative Law Judge

Distribution:

Ann M. Noble, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite
1600, Denver, CO 80202-5716 (Certified Mail)

Laura E. Beverage, Esq., Jackson & Kelly, 1660 Lincoln Street, Suite 2710, Denver, CO 80264
(Certified M~il)

RWM
440

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
'
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, Suite 1000
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

March 30, 2000
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 99-193
A. C. No. 15-16958~03510 HD2

v.
DOTSON TRUCKING COMPANY
INCORPORATED,
Respondent

Long Fork Preparation Plant
CNIL PENALTY PROCEEDING

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

Docket No. KENT 99-201
A. C. No. 15-16958-03517

v
MCCOY ELK.HORN COAL CORP.,
Respondent

Long Fork Preparation Plant

DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Dept. of Labor,
Nashville, Tennessee, on behalf of the Secretary of Labor;
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., Lexington,
Kentucky, on behalf of Dotson Trucking Incorporated;
Melanie J. Kilpatrick, Esq., and Marco.M. Rajkovich, Jr., Esq.,
Wyatt, Tarrant & Combs, Lexington, Kentucky, on behalf of McCoy
Elkhorn Coal Corporation.

Before:

Judge Melick

These consolidated cases are before me upon petitions for Civil Penalty filed by the
Secretary of Labor against Dotson Trucking Company, Inc., (Dotson) and McCoy Elkhorn Coal
Corporation (McCoy) pursuant to Section 105(d) of the Federal Mine and Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq., the "Act," alleging violations of mandatory standards and
seeking civil penalties of $60,000.00 and $25,000.00, respectively, for those violations. The
general issue before me is whether the violations were committed as alleged and, if so, what is
the appropriate civil penalty to be assessed considering the criteria under Section l lO(i) of the
Act. Additional _specific issues are addressed as noted.

441

Background
On Tuesday, September 1, 1998, at approximately 2:45 p.m., truck driver Charlie Hall
was injured when he failed to negotiate a curve while descending the refuse haul road at the
subject mine. Hall died of his injuries on September 13, 1998. McCoy operates the cited coal
preparation plant and Dotson provides trucking services hauling refuse from the plant by road up
a hill to the refuse dun:iping area. At the top of the hill an employee of Sky Hawk Construction
operated a bulldozer to spread the refuse material. After Dotson's haulage trucks dumped their
refuse they traveled unloaded down the hill to the preparation plant to be reloaded.
On September 1, 1998, Dotson was using four trucks to haul refuse. One of these trucks,
the Cline Number 77, was being driven by Charlie Hall. Hall was traveling unloaded down the
refuse haul road on a 15% grade, apparently lost control of his truck, failed to make the turn at
the Number 1 curve and passed through the berm into the side of a hill. When Hall's truck struck
the hillside, he was projected through the windshield and landed in a ditch.
On September 1, 1998, Buster Stewart, an experienced coal mine inspector and accident
investigator for the Mine Safety and Health Administration (MSHA) and Robert H. Bellamy, an
MSHA mining engineer, proceeded to the mine to investigate. The investigation continued on
September 2, 1998, and on September 3, 1998, when Dennis Ferlich and Terry Marshall from
MSHA's Approval and Certification Center arrived. Perlich is a mechanical engineer who
focused his investigation on the braking system and related components of the cited truck.
The Alleged Violations
Citation Number 3816166, issued to Dotson, alleges a "significant and substantial"
violation of the standard at 30 C.F.R. § 77.1605(b) arid charges as follows:

Th_e Cline refuse truck #77 was not provided with adequate brakes. The
truck was examined by MSHA Technical Support personnel and defects to the
braking system were documented which include that the front brakes were not
operational.
The cited standard 30 C.F.R. § 77. l 605(b) provides as relevant hereto that "[m]obile
equipment shall be equipped with adequate brakes."
Citation Number 7350320 was issued to McCoy and also alleges a "significant and
substantial" violation of the standard at 77. l 605(b). It charges as follows:
The 50-Ton Cline Refuse Truck, Co., No. 77, was not provided with adequate
service brakes that would stop the truck in an emergency situation on the roadway
it was traveling. On September 1, 1998, the truck was returning empty to the
refuse bin when it failed to negotiate the No. 1 curve. The truck traveled through
the berm and impacted the hillside. The evaluation of the testing performed by
442

MSHA Technical Support during the fatal accident investigation concluded the
brakes were inadequate at the time of the accident. The truck has been out ·o f
service since the accident.
Citation Number 7351484, issued to Dotson and as subsequently modified, alleges a
"significant and substantial" violation of the standard at 30 C.F.R. § 77.1607(c) and charges as
follows:
Equipment operating speeds are not consistent with the conditions of the roadway,
grade, and type of equipment being used. On September 1, 1998, a powered
haulage accident occurred resulting in fatal injuries to Charlie R. Hall, truck
driver. The accident occurred when the #77 Cline refuse truck failed to negotiate
the # 1 curve. The truck traveled through the berm and over the out slope of the
road and in to the hillside. The gravel on the road was firmly embedded and
worn slick. The grade of the road in the area was approximately 15%. Extra
water had been added to the refuse and allowed to leak from the truck beds for
dust control purposes which added to the condition. The road is maintained by
Dotson Trucking, Inc.
The cited standard, 30 C.F.R. § 77.1607(c), provides as follows:
Equipment operating speeds shall be prudent and consistent with
conditions of roadway, grades, clearance, visibility, traffic, and the type of
equipment used.
Citation Number 7351483, issued to McCoy and as subsequently modified, also alleges a
"significant and substantial" violation of30 C.F.R. § 77.1607(c) and charges as follows:
Equipment operating spe~ds are not consistent with the conditions of the roadway,
grade, and type of equipment being used. On September 1, 1998, a powered
haulage accident occurred resulting in fatal injuries to .Charlie R. Hall, truck
driver. The accident occurred when the #77 Cline refuse truck failed to negotiate
the # 1 curve. The truck traveled through the berm and over the out slope of the
road and in to the hillside: The gravel on the road was firmly embedded and worn
slick. The grade of the road in the area was approximately 15%. Extra water had
been added to the refuse and allowed to leak from the truck beds for dust control
purposes which added to the condition. The on-shift examinations are conducted
by McCoy Elkhorn personnel.
Evaluation of the Evidence
Both MSHA investigators, Stewart and Bellamy, opined that truck driver Charlie Hall
had been traveling at excessive speed in the presence of adverse road conditions. They
concluded that the haul road where the accident occurred was slick from the deposition of water
443

and from gravel worn to a smooth surface. They also considered the skid marks at the Number 1
curve; the fact that the same truck had been driving this haul road for four hours before the
accident on September 1, 1998, without incident; and reports from interviews that the victim,
Charlie Hall, was known to drive fast down the haul road.
Mechanical engineer Dennis Ferlich's opinions are not disputed. Perlich found that three
of the six brakes on the cited truck were completely inoperative and that the remaining three
brakes had a reduced functional capacity. He opined that the cited Cline Number 77 truck had
only about 50% of its normal braking capacity and therefore the brakes were not adequate.
Perlich further opined that it was much more likely that the accident would not have happened if
the truck had had full braking capacity. Perlich also opined that, based upon his own
examination of the brakes and the testimony of William New, Dotson's chief mechanic, Dotson
did not in fact have a preventive maintenance program. In this regard he noted the failure of
Dotson to have replaced the worn brake drums.
William New was the chief mechanic at Dotson and had worked for Dotson his entire
mining career of 16 years. New was also supervisor for Dotson's two other mechanics and its
truck drivers. According to New, Hall had worked for Dotson for three to four years before the
accident on September 1, 1998. New was aware even before the accident that Hall had a
reputation among the truck drivers for driving "too fast" down the haul road. He defined "too
fast" as "coming off the hill" in fourth gear. New had himself seen Hall driving too fast on two
occasions, one of which was only two to three weeks before the accident. He asked Hall to slow
down "because it was too dangerous to come off that fast."
New also testified that there were no established disciplinary procedures at Dotson for
violating company rules. When asked if he had ever disciplined Hall for driving too fast, he
responded only that "I had spoke [sic] to him about driving too fast." New agreed with the
Secretary's experts that "by all of the signs at the accident scene" Hall had been "definitely going
fast."
Tommy Bevins, vice-president, secretary of Dotson and one of Dotson's owners, testified
about Dotson's lack of disciplinary procedures in the following colloquy:
Q. The 15 or 22 employees that you had in 1998, what were your disciplinary procedures
or operation there, for example for driving too fast?

A. Well, if it was a constant thing I would probably have fired them. But as far as-I'm
just a small operator, I don't have a lot of extra people, and I couldn't afford to furnish ..
. . So I couldn't have six or eight drivers to fill in ifI disciplined one or laid him off. So
what I tried to do was really stay on them, caution them about safety factors of it.
(Tr. 12/14/99 at 61, 76-77).
Bevins also testified that Dotson did not examine the drums or brake shoes on its
equipment unless there was a problem. He later testified, regarding Dotson's method of
444

inspecting the brakes on its equipment, as follows:
We do it the same way MSHA does, you know, if they stop then we assume they
are all right. You know, like I say, if we see a problem we fix it, but if they stop
we assume they are all right.
(Tr. 11116/99 at 281-282). (Tr. 12114/99 at 109).
Todd Lowe was employed on September 1, 1998, as a bulldozer operator for Sky Hawk
Construction, a company also owned by Tommy Bevins. In order to get to and from his work
site on the top of the hill he would ride with one of the truck drivers. He had been a passenger
with Charlie Hall on two or three of these occasions and would not ride with him again. He was
afraid to ride with Hall because "he came off the hill too fast."
Based on the undisputed evidence alone it is clear that all of the violations have been
proven as charged. Citation No. 7351484 against Dotson and Citation No. 7351483 against
McCoy both allege violations of the standard at 30 C.F.R. § 77.1607(c) and charge that the
haulage truck driven by Charlie Hall was not operated at a speed prudent and consistent with
conditions of the roadway, grades and related conditions and with the type of equipment being
used. There is no dispute that the haulage road at the No. 1 curve was slick from water and with
gravel which had been worn smooth. The area descended steeply at a grade of 15%. Skid marks
also indicated that the truck was proceeding at a high rate of speed when it entered the No. 1
curve. There is, in addition, undisputed evidence that this truck driver had a practice of driving
with excessive speed down the haul road.
The violations were clearly also of high gravity and "significant and substantial." A
violation is properly designated as "significant and substantial" if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1,3-4(January1984),
the Commission explained:

In order to establish that a violation of a mandatory safety standard is
significant and substantial under National Gypsum the Secretary 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.
See also Austin Power Inc. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), aff'g 9
FMSHRC 2015, 2021(December1987) (approving Mathies criteria).

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
445

injury (US. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)). The likelihood of such
injury must be evaluated in terms of continued normal mining operations without any
assumptions as to abatement. US. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984);
See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986) and Southern Ohio Coal Co.,
13 FMSHRC 912, 916-17 (June 1991).
There is no dispute that haul truck driver Charlie Hall died as a result of the injuries he
sustained when his truck proceeded through the berm, struck a hillside and he was thrown
through the window of his truck. There likewise can be no dispute that the accident was caused
by imprudent driving considering the road conditions including the grade and slickness of the
road. Under these circumstances the violations were clearly "significant and substantial."
McCoy nevertheless claims that it is not liable for the violation charged in Citation No.
7351483, because neither its employees, its equipment nor its activities caused or contributed to
the violation. The Commission and various courts have long recognized, however, that, under
the Act's scheme of strict liability, an operator, although without fault itself may be held liable
for the acts of its independent contractor. Bulk Transp. Services, Inc., 13 FMSHRC 1354, 135960 (September 1991); Cyprus Indus. Minerals Company v. FMSHRC, 664 F.2d 1116, 1119 (91h
Cir. 1981). In instances of multiple operators, the Secretary has "wide enforcement discretion"
and may proceed against the operator, independent contractor, or both. Mingo Logan Coal Co.,
19 FMSHRC 246, 249 (February 1997), Aff'd per curiam, No. 97-1392 (41h Cir. January 8,
1998); Consolidation Coal Company, 11FMSHRC1439, 1443 (August 1989). The
Commission has determined that "its review of the Secretary's action in citing an operator is
appropriate to guard against abuse of discretion." W-P Coal Company, 16 FMSHRC 1407, 1411
(July 1994). A litigant seeking to establish an abuse of discretion bears the heavy burden of
establishing that there is no evidence to support the Secretary's decision or that the decision is
based on an improper understanding of the law. Mingo Logan, 19 FMSHRC at 249-50 n.5.
The-Commission has considered various factors in determining whether an enforcement
action constitutes an abuse of t~e Secretary's discretion, in~luding the operator's day-to-day 1
involvement in tlie mine's operations, whether the operator is in the best position to effect safety
and whether the enforcement action is consistent with the purpose and policies of the Act.
Secretary v. Extra Energy Inc., 20 FMSHRC 1(January1998).
In this case I find that McCoy had substantial involvement in the day-to-day operations at
the mine in that it operated the preparation plant at which the waste material hauled by Dotson's
trucks originated, it directed Dotson's trucks to the place to dump the waste material and it
retained overall directorial authority over the haul trucks. In addition, McCoy took no measures
to ensure that the Dotson's haul truck drivers were driving at a reasonable and prudent speed
considering the conditions of the haul road.
As the Secretary observes in her brief it is clear that McCoy's employees were also
exposed to the hazards presented by the reckless driving of Charlie Hall. Indeed, Gary Thacker,
who was at the time of the accident McCoy's plant superintendent, testified that he and other
employees of McCoy's traveled the haulage road in order to carry out the required on-shift
446

examination for McCoy as well as for other purposes. Thacker also testified that on occasion
William Spears, McCoy's safety director traveled this road to perform his own inspections.
Thacker testified that while traveling on the haul road he remained in contact with the Dotson
truck drivers by radio since they were traveling the same road at the same time. Clearly Dotson's
trucks therefore posed a hazard to McCoy's employees. It is consistent with the purposes of the
Act that McCoy should therefore have an active role in assuming that its employees are protected
by ensuring that its contractor had competent and safe drivers on its mine property.
Based on the credible and unchallenged testimony of the Secretary's expert mechanical
engineer Dennis Ferlich, it is also clear that the violations charged in Citation No. 7350320
against McCoy and Citation No. 3816166 against Dotson have also been proven as charged. 30
C.F.R. § 77.1605(b) requires that mobile equipment be equipped with adequate brakes. Ferlich's
credible and undisputed testimony that the subject Cline No. 77 truck had only three operative
brakes out of six and that its braking capacity had been reduced by 50% is clearly sufficient to
sustain the violations. The violations were also of high gravity and "significant and substantial."
In this regard Ferlich opined that if the subject 50-ton haul truck had been equipped with a fully
functioning brake system then the deceased could have stopped the truck before he struck the
hillside. It may reasonably be inferred in this case therefore that the inadequate brakes were a
causative factor in the death of Charlie Hall.
McCoy nevertheless argues again that it should not be held liable because the Secretary
abused her discretion in issuing the citation. McCoy maintains that its employees did not work
with or alongside Dotson Trucking employees and the alleged violations were abated by the
employees by Dotson. Applying the principles of law previously stated it is noted that Dotson's
trucks represented a hazard to McCoy's employees who were required to travel the same haul
road on which Dotson's haul trucks were operating. As previously noted McCoy was also
responsible for the overall day-to-day mining activities at this operation and provided overall
direction to Dotson's employees including the location to dump and designated the haul roads to
be utilized. In addition, McCoy took no measures to ensure that the brakes on the haulage trucks
were safe either by inspecting them itself or by requiring Dotson to do so. As a result, the
obvious defects in the braking system were not discovered. Through its failure to inspect or
ensure that the haul trucks were inspected, McCoy contributed to the braking violation and to the
continued existence of the violation. See Extra Energy, 20 FMSHRC at 6. Under the
circumstances I cannot find that the Secretary abused her discretion in citing McCoy for the
violation herein.
Negligence Regarding Violations of30 C.F.R. § 1607(c)
(a) Dotson 's Negligence.
It is established that haul truck driver Charlie Hall was traveling at excessive speed for
the conditions present at the time of his accident and that it may reasonably be inferred therefrom
that Hall was highly negligent. The issue is whether the negligence of a rank and file truck driver
may be imputed to Dotson for purposes of assessing a civil penalty. In Southern Ohio Coal Co,

447

4 FMSHRC 1459 (August 1982) the Commission stated that, in the context of evaluating
operator conduct for the purposes of penalty assessment "where a rank-and-file employee has
violated the Act, the operator's supervision, training and disciplining must be examined to
determine if the operator has taken reasonable steps to prevent the rank-and-file miners' violative
conduct." The Commission also stated in that case that the fact that a violation was committed
by a non-supervisory employee does not necessarily shield an operator from being negligent. "In
this type of case, we look to such considerations as the foreseeability of the miners' conduct, the
risks involved, and the· operator's supervising, training and disciplining of its employees to
prevent violations of the standard in issue." A.H. Smith Stone Co., 5 FMSHRC 13, 15 (January
1983).
In the instant case it is undisputed that haul truck driver Charlie Hall was traveling at
excessive speed for the conditions present on the date of his accident. It is also undisputed that
Hall's supervisor, William New, had knowledge of Hall's propensity for driving at excessive
speed down the haul road. New was aware not only of Hall's reputation for excessive speed but
also had personally observed this behavior only two or three weeks before the accident at issue.
Hall was "talked to" but no disciplinary action was taken. Tommy Bevins, one of the co-owners
of Dotson confirmed that he could not, or would not, institute any disciplinary procedures
because of a labor shortage. Under the circumstances, it may reasonably be inferred that because
of Hall's continued unpunished behavior in driving down the haulage road at excessive speed
that the accident on September 1, 1998, was a foreseeable result of a lack of discipline and/or
training. Dotson is accordingly responsible for Hall's negligence in driving at an excessive speed
down the haul road on September 1, 1998.
(kJ McCoy's Negligence.

While the Secretary has alleged in the citation at bar that McCoy was chargeable with
"moderate" negligence she fails to cite in her post-hearing brief any evidence to support such a
finding. Indeed; McCoy notes in its post-hearing brief that Dotson performed all maintenance on
the road, that McCoy did not directly supervise Dotson's truckers, that McCoy had no
infohnation that Hall had a reputation for drivin'g at excessive speed or that he in fact had been
observed driving the road at excessive speed. These facts are indeed undisputed and, under the
circumstances, I cannot find McCoy chargeable with negligence for this violation.
Negligence Regarding Violations of 30 C.F.R. 77.1605(b)

(a) Dotson's Negligence
The Secretary's expert, mechanical engineer Dennis Ferlich, credibly testified without
contradiction that the brakes on the cited truck were seriously defective. The truck had only three
of its six brakes operative and its braking capacity was reduced by 50%. Dotson mechanic-incharge William New testified that they perform their own service and maintenance such as
adjusting brakes and installing brake drums and brake shoes on the trucks. According to Tommy
Bevins, one o~Dotson's owners, the brakes are not routinely inspected and if the trucks "stop"

448

they are assumed to be all right. Dotson therefore by its own admission failed to comply with the
standard at 30 C.F.R. § 77.1606. 1 By its failure to have conducted legally mandated inspections
on its haulage truck brakes, Dotson was clearly negligent. See Jim Walter Resources Inc., 19
FMSHRC 1646, 1649 (October 1997).
(q) McCoy 's Negligence

The Secretary argues in this regard that McCoy had a duty to inspect the maintenance
records of Dotson to ensure that the subject Cline #77 Truck as well as other Dotson equipment
being used on its mine property was being maintained in a safe operating condition. See
Secretary v. Extra Energy Inc., 20 FMSHRC 1(January1998). There is no evidence that McCoy
inspected or ensured that the Dotson trucks were inspected and, accordingly, within the
:framework of the Extra Energy decision, McCoy was negligent in thi~ regard.
Civil Penalty

In assessing civil penalties in these cases I have also considered that Dotson is a small
operator with a modest history of violations and that McCoy is a large operator with a significant
history of violations. The instant violations were abated appropriately and there is no evidence
that the assessed penalties would affect the ability of either to continue in business. The
negligence and gravity criteria have already been discussed with respect to each violation.
ORDER

Citations No. 3816166 and 7351484 are affirmed as "significant and substantial" citations
and Dotson Trucking Company, Inc., is directed to pay civil penalties of $35,000.00 and
$25,000.00 respectively for the violations charged therein within 40 days of the date of this
decision. Citations No. 7361483 and 7350320 are affirmed as "significant and substantial"
citations and McCoy Elkhorn Coal Corporation is directed to pay civil penalties of $200.00 and
$2,000.00 respectively for the violations charged therein within 40 days of the date of this
decision.

l
Gary fV\e.lick
Administrative Law Judge

·

The standard at 30 C.F.R. § 77.1606 provides that "mobile loading and haulage
equipment shall be inspected by a competent person before such equipment is placed in
operation."
449

Distribution: (Certified Mail)
Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Dept. of Labor, 2002 Richard Jones Rd.,
Suite B-201, Nashville, TN 37215
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C., 841 Corporate Drive, Suite 101,
Lexington, KY 40503
Marco M. Rajkovich, Jr. , Esq., & Melanie J. Kilpatrick, Esq., Wyatt, Tarrant & Combs,
Lexington Financial Center, Suite 1700, 250 West Main Street, Lexington, KY 40507
/mca

450

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

March 30, 2000
SECRETARY OF LABOR,
M1NE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 98-80-M
A. C. No. 21-02975-05510

v.
Docket No. LAKE 98-99-M
A. C. No. 21-02975-05511

TOW BROTHERS CONSTRUCTION,
INCORPORATED,
Respondent

Cedar Rapids Crusher #F25918

DECISION
Appearances:

Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department
of Labor, Chicago, Illinois, for the Petitioner;
Arvid Wendland, Esq., Wendland and Timmerman, Blue Earth,
Minnesota, for the Respondent.

Before:

Judge Feldman

Before me are petitions for assessment seeking to impose a total civil penalty of$52,500
filed pursuant to section l lO(a) of the Federal Mine Safety and Health Act of 1977 (the Act),
30 U.S.C. § 820(a), by the Secretary of Labor (the Secretary) against the respondent, Tow
Brothers Con~truction, Inc. (Tow Brothers). This matter concerns a serious accident that
occurred on November 11, 1996, involving Tow Brothers foreman Wayne Walter. The accident !
occurred when Walter's right hand and forearm were caught in an unguarded trap feed conveyor
head pulley as Walter was performing maintenance activities. Tow Brothers is a closely held
family corporation with brothers James and Robert Tow each holding 50 per cent of the
outstanding shares of the corporation.
These matters were called for hearing on February 9, 2000, in Fairmont, Minnesota.
After several conferences with the parties' counsel, during which time I explained the application
of the penalty criterion in section 11 O(i) of the Mine Act with respect to the effect on the
operator's ability to continue in business, the parties reached settlement. 1 Specifically, I noted
1

The statutory civil penalty criteria in section l lO(i) of the Act, 30 U.S.C. § 820(i), provides, in pertinent
part, in assessing civil penalties:
the Commission shall consider the operator's history of previous violations, the appropriateness of
such penalty to the size of the business of the operator charged, whether the operator was
negligent, the effect on the operator's ability to continue in business, the gravity of the violation,
and the demonstrated good faith of the person charged in attempting to achieve rapid compliance

451

the capitalization structure of closely held corporations is intended to limit liability.
Consequently, although the corporations small size, and the financial information and
documentation submitted by Tow Brothers, were appropriate considerations, the corporation's
purported inability to pay, alone, did not relieve Tow Brothers of its liability under the Mine Act.
The parties' settlement terms were set forth and approved on the record. The settlement
terms included Tow Brothers' agreement to pay a reduced civil penalty from $52,500 to $22,500.
Pursuant to my direction at trial, the Secretary has filed a written summary of the parties'
settlement agreement. As part of their settlement, the parties have stipulated:
(a) The Federal Mine Safety and Health Review Commission has jurisdiction over
these proceedings.
(b) Tow Brothers is a corporation.
(c) Tow Brothers' operations affect interstate commerce.
(d) At all times relevant to the instant proceedings, Tow Brothers operated the Cedar
Rapids Crusher #F25918.
(e) The Cedar Rapids Crusher #F25918 extracted sand and gravel.
(f) The Cedar Rapids Crusher #F25918 worked less than 10,000 hours in the period
November 12, 1995, through November 11, 1996.

(h) Tow Brothers committed one (1) violation of a health and safety regulation in the
24 month period ending on December 31, 1996.
(i) Tow Brothers has agreed to pay the reduced civil penalty according to the payment
plan detailed below.
The settlement terms as they apply to Docket Number LAKE 98-80-M are:
Citation

Date Issued

30 C.F.R.

Assessment

4421526
4421527
4421528

11/13/96
11/13/96
11/13/96

56.14107(a)
56.14203
56.11001

$18,000
$20,000
$10.000

$ 7,700
$ 8,500
$ 4.500

TOTAL

$48,000

$20,700

Settlement

( 1) The serious gravity associated with these citations remains unchanged.

after notification of a violation.

452

(2) The degree of negligence specified in the citations is unchanged.
(3) Tow Brothers demonstrated its good faith by abating the citations within the
time allowed by the MSHA inspector.
(4) The reduced penalty assessment is appropriate based on Tow Brothers' small
size and financial limitations.
The settlement terms as they apply to Docket Number LAKE 98-99-M are:
Citation

Date Issued

30C.F.R.

Assessment

Settlement

4421529
4421530
4421531

11/13/96
11/13/96
11/13/96

56.14107(a)
56.14107(a)
56.14107(a)

$1,500
$1,500
$1.500

$ 600
$ 600
$ 600

TOTAL

$4,500

$1,800

(1) The gravity of the cited violations is unchanged.
(2) The degree of negligence specified in the citations is unchanged.
(3) Tow Brothers demonstrated its good faith by abating the citations within the
time allowed by the MSHA inspector.

(4) The reduced penalty assessment is appropriate based on Tow Brothers' small
size and financial limitations.
The parties have agreed to the following schedule of payments: Tow Brothers will pay
$6,500 on March 15, 2000. 2 The remainder of the installments will be paid in eight (8)
quarterly payments of$2,000 each, payable on or before the following dates: June 15, 2000,
September 15, 2000, December 15, 2000, March 15, 2001, June 15, 2001, September 15, 2001,
December 15, 2001, with the last payment made on or before March 15, 2002. If payments are
not made in accordance with this payment schedule, the remaining balance of the $22,500 civil
penalty shall due and payable immediately.
Payments shall be made to the Mine Safety and Health Administration, ATTN:
Dorothy Johnson, 4015 Wilson Blvd., Room 926, Arlington, VA 22203.

2

As of March 24, 2000, the first installment of$6,500 had not yet been received by MSHA's Office of
Assessments. I assume payment has been delayed pending the issuance of this decision formalizing the parties'
agreement. If payment of the first $6,500 installment is not received within 21 days of the date of this
decision, the Secretary may file a motion for a default judgment that seeks to impose the $52,500 civil
penalty initially proposed in these matters.

453

ORDER
As noted on the record at trial, I conclude that the proffered settlement is appropriate
under the criteria set forth in Section l lO(i) of the Act. WHEREFORE, the parties' motion for
approval of senlement IS GRANTED, and, IT IS ORDERED that Tow Brothers Construction,
Inc., pay a $22.500 civil penalty in accordance with the above payment schedule and, upon
receipt of timely payment of the entire $22,500 penalty, these cases ARE DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Christine M. Kassak, Esq., Office of the Solicitor, U.S. Department of Labor,
230 S. Dearborn Street, Chicago, IL 60604 (Certified Mail)
Arvid Wendland, Esq., Wendland and Timmerman, 825 East Second Street, P.O. Box 247,
Blue Earth, MN 56013 (Certified Mail)
Mr. James R. Tow, President, Robin C. Peterson, Acct. Manager, Tow Brothers Construction,
Inc., RR. 3, Box l 18A, Truman, :MN' 56088 (Certified Mail)
/mh

454

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

March 31, 2000

CNIL PENALTY PROCEEDING

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

Docket No. WEVA 98-148
A. C. No. 46-01433-04274
Loveridge No. 22

CONSOLIDATION COAL COMPANY,
Respondent

DECISION
Appearances:

Melonie J. McCall, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for the Petitioner;
Elizabeth S. Chamberlin, Esq., Consolidation Coal Company,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Feldman

This proceeding concerns a petition for assessment of civil penalty filed pursuant to
section 1 lO(a) of the Federal Mine Safety and Health Act of 1977 (the Act), 30 U.S.C. § 820(a),
by the Secretary of Labor (the Secretary) against the respondent, Consolidation Coal Company
(Consol). The petition sought to impose a total civil penalty of $54,000 for six 104(d)(2) Orders.
This matter was heard on November 16 and November 17, 1999, in Morgantown,
West Virginia, at which time th~ respondent stipulated that it is a mine operator subject to the
jurisdiction of the Act. At the hearing the parties proposed a settlement of three of the orders in
issue that resulted in vacating one order and modifying one order to a 104(a) citation. The
parties' settlement motion was granted on the record and the terms of their agreement are
discussed below.

I. Findings of Fact
The three contested 104(d) orders in this matter are: Order No. 4889944 issued for
alleged combustible coal dust accumulations in the 9 South Mains section, also called the Leo
section, of Con~ol' s Loveridge No. 22 Mine during the day shift on May 20, 1998, in violation of
the mandatory safety standard in 30 C.F.R. § 75.400; Order No. 4889945 issued for Consol's
455

alleged failure to maintain incombustible content of at least 65 per cent of the combined
coal dust, rock dust and other dust in the 9 South section in violation of 30 C.F.R. § 75.403;
and Order No. 4889946 issued for Consol's alleged failure to perform an adequate preshi:ft
examination in violation of 30 C.F.R. § 75.360(a)(l) because the cited accumulations were not
noted in the preshi:ft examination book. All of the cited conditions were designated as significant
and substantial (S&S) and attributed to Consol's unwarrantable failure.
Generally speaking, the normal mining cycle involves extracting coal by driving entries
forward with a continuous miner one entry at a time. The entry is then roof bolted. Once the
newly driven entry is under supported roof, loose coal is then swept from the mine floor with
scoops that travel across the section to shuttle cars or the section dumping point. At that point,
rock dust is applied to the entries. fu order to determine whether the Secretary has satisfied
her burden of proof with respect to each of the elements of the 104(d) orders in issue, it is
necessary to first consider the activities occurring in the Leo section at the time of the subject
May 20, 1998, inspection.
The 9 South section has three working shifts: the day shift (8:00 am. to 4:00 p.m.);
the afternoon shift (4:00 p.m. to 12:00 a.m.); and the midnight shift (12:00 a.m. to 8:00 a.m.).
The 9 South section was idle on the midnight shift of May 20, 1998,just before the subject
inspection on the following day shift of May 20. However, miners were present in the section
on that midnight shift to grade the track heading. The 9 South section mined only 47 feet during
the afternoon shift on May 19, 1998. Only 38 feet was mined during the preceding day shift on
May 19, 1998.
On May 20, 1998, coal production in the Leo section had been suspended for several
shifts in order to complete several construction projects including trenching, installation of
overcasts, grading of the mine floor for what was to become a new belt entry, and cutting or
"bumping" the comers of coal pillars to widen new haulage roadways for use. These
construction projeqts were in preparation for the start-up of the new lD section, a section that
branched off from the 9 South entries at 90 degrees. Resumption of production mining in the
Leo section was not scheduled to begin until completion of the construction activities and rock
dusting of the section. At the time of the inspection, the 9 South section equipment had been
moved outby the area of cons~ction activity. In addition to the mining equipment used in the 9
South section, the mining equipment to be used in the new lD section was being stored in the 9
South section inby the tailpiece. This equipment included three continuous miners with 1000
feet of trailing cable and two sets of mining equipment, a loading machine with 800 to 900 feet
of trailing cable, shuttle cars and a roof drill. The equipment's trailing cables were placed along
the ribs to keep the cables clear of the haulage roads. Rib sloughage is common in the Loveridge
Mine and some of the cables had sloughage on them. Although rib sloughage is common,
MSHA does not require the sloughage to be cleaned because cleaning may destabilize the rib.
Consequently, the issuing inspector in this case did not include rib sloughage in his
measurements of the depth of the cited accumulations. (Tr. 65, 67).

456

The installation of overcasts and the construction of trenching required extensive cutting
into mine roof material that mainly consists of dark gray rock with little or no coal. Overcasts
are designed to allow two air currents to cross in situations where converging mine sections are
driven in different directions. To install overcasts for the new ventilation controls, the roof area
removed by Consol to create the overcast was approximately 10 feet above the roof line (10 feet
deep) in an area 16 feet wide by 60 feet long.
Trenching is the method used to create the necessary clearance (or height) from the mine
floor to the roof to install the belt drive and belt take-up unit for the new lD section. To cut the
trench for clearance of the belt drive, the area of rock removed from the roof was 15 feet above
the roof line ( 15 feet deep) in an area 16 feet wide by 220 feet long.
To cut the overcasts and trench Consol used the common industry method of allowing
the rock cut from the roof to remain on the mine floor in order to create a "ramp" that was
used by the continuous miner for elevation to access deeper into the mine roof, and, later,
was used by the roof bolting machine to install permanent roof support. Cutting the trenches
and overcasts generated large quantities of dark gray rock dust. This rock dust was ventilated
inby the construction work area, away from mine personnel. The dark color of the rock dust
ruined the appearance of the section in that it covered previous inert rock dusting.
In January 1998, jurisdiction over Consol's Loveridge Mine was transferred from
MSHA's Fairmont, West Virginia field office to MSHA's Bridgeport, West Virginia field office.
Shortly thereafter, personnel from MSHA's Bridgeport office, including MSHA Inspector
Kenneth W. Tenney, inspected the Loveridge mine to evaluate mine conditions. As a result of
the Bridgeport field office's initial inspection, Consol officials were informed that Consol's
cleanup and rock dusting efforts were "borderline" and that they must be improved. (Tr. 30001 ). Therefore Consol was told that the Bridgeport office would "place emphasis" on such
things as cleanup and rock dusting. (Tr. 133).

At approximately 10:00 a.m. on May 20, 1998, Tenney arrived at the 9 South Mains
section of the Loveridge No. 22 Mine for the purpose of continuing an ongoing triple A
inspection that had begun in April 1998. At that time, no mining was occurring, the section
having been idle since the previous midnight shift. However, Tenney testified that crew
members on the section had been instructed to adjust the ventilation system in order to begin the
cleanup of material removed from the roof during the cutting of the overcast.
Tenney was accompanied by Danny Kuhn, Consol's safety escort, and Mike Renick, a
UMWA union escort. Tenney was familiar with the 9 South section because he had been at the
Loveridge Mine every week since January 1998, when the previous triple A quarterly inspection
had begun. Tenney testified that mining in 9 South mains was "periodic" and that the tailpiece,
or "dumping point" had not advanced and that it had remained in the "same place for an
"extended period of time ... for up to a week or maybe even longer." {Tr. 45-6). Tenney
explained advancement was "very slow" because Consol was cutting overcasts and went days
457

without actually cutting the face. (Id.) The overcasts were necessary before mining of the
lD panel could begin. The haul roads were used to transport overcast and trench debris to the
tailpiece for removal to the surface.
Upon arriving on the 9 South section, Tenney observed excessive spillage and rib
sloughage. Tenney testified haulage equipment had run over the spillage and pulverized it into
dust. The shuttle cars are equipped with drags that spread the spillage over the entries as they go
back and forth through the entries. The drags smooth the roadway by filling potholes in the
roadway with loose material. (Tr. 61).
Specifically, Tenney observed the conditions in the number 3 through number 7 entry
from the first crosscut inby the section tailpiece to the last open crosscut at the number 8 block,
an area of approximately 600 feet in length. Tenney initially estimated the section had areas of
"six, eight, ten, twelve inches, it depended on where you measured it at." (Tr. 47). However,
when asked to quantify the areas of8 to 10 inch accumulations, Tenney explained:
Q: Was it mostly eight inches throughout this area? Was it eight inches in only a
few places? ... And the question is how extensive ... an area?
A: If you 're asking me to characterize the whole thing, I would say that 99 percent
of it had more than one inch. And from all the holes that was ... the drags [on the
shuttle cars] had drug it around could have six, eight, 12 inches, I didn't measure
all the depths ...
Q: So ifthere was a [pot]hole it could accumulate six to eight inches or more in
the hole?
A: Right.
Q: But where the mine floor was essentially level without potholes it was in the
area of one to two inches; is that what you're saying?
A: Yes sir, that would be a good surmise.
(Tr.389-92).
As a result of his observations, Tenney issued Order No. 4889944 citing an S&S violation
of the mandatory standard in section 75.400. The specific areas of excessive accumulations cited
in Order No. 4889944 were (1) coal spillage that was 20 inches deep, 8 inches wide and 12 feet
long from a bulldozed comer in the number 7 crosscut between the number 6 and number 7
entries; (2) coal accumulations 10 inches deep in the center of the mine floor in the number 5
crosscut between the number 2 and number 3 entries; and (3) ground up coal from sloughage that
was run over by mobile equipment 10-14 inches deep and 36 inches wide running along the full

458

length of the number 4 crosscut between the number 3 and nwnber 4 entries. The Order also
cited coal wind rowed along the sides of the entries up to 12 inches deep. In summary, the Order
noted, "section shows signs of general lack of clean up and house keeping. Conditions are
obvious to even the most casual observer."
Section 75.400 provides:
Coal dust, including float coal dust deposited on rock-dusted surfaces, loose coal,
and other combustible materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on diesel-powered and electric equipment
therein.
Consol's production reports reflect in the two days preceding the inspection, beginning
12:01 a.m. on May 18, 1998, through 12:01 a.m. on May 20, 1998, 1,128 tons were mined and
transferred by shuttle cars in the 9 South section. (Tr. 141-42). Tenney opined that it was
inconceivable that mining this relatively small amount of coal could have resulted in the
extensive accumulations and spillage that he had observed. (Id.) Tenney speculated, based
on the extent of the accumulations and spillage, and the small amount of coal mined in the
preceding shifts, that the cited accumulations had existed for approximately 12 shifts. (Tr. 38182, 385-88). In this regard Tenney testified:
Sir, I believe that the accumulations are from two things. Number one, part of it
was from the fact that the ribs had sloughed and shuttle cars had run over it
repeatedly. And number two, that the time frame that they were using the
travelway, that it had not been cleaned up for an extended period of time. And
that it was from the spoonful or shovelful of the coal, each facet of the shuttle car
and ~ay after day being drug around by the bar on it [the drags]. (Tr. 387-88).
Tenney noted that the No. 1, No. 2 and No. 3 entries in the 9 South Leo section had
been recently cleaned and rock dusted. At the time of Tenney's inspection, the Number 1, 2 and
3 entries were not being used as haul roads to remove the overcast and trench material that had
been removed from the mine roof
Tenney recalled the No. 7 entry was fairly damp from the last open crosscut outby a
couple of blocks up to a water hole in front of the feeder. In entry Nos. 4 through 8, with the
exception of rock dust on the mine roof and ribs up to a level of approximately one foot where
sloughage from the ribs to the mine floor had begun, Tenney observed no visible rock dust at the
base of the ribs or on the mine floor.

459

The procedure for rock dust collection of "samples to ·substantiate the violation when
citing inadequate rock dust" is set forth in MSHA's Coal General Inspection Handbook at
Chapter 4 in Section ill (A). (Resp. Ex. 2). This section requires collection of mixed dust
obtained from the floor, ribs and roof by the band or perimeter method. The sample should be
thoroughly mixed, coned and quartered to cut the bulk of the sample to the desired amount.
Section ID(A) also permits collection of separate "supplies of dust from either the roof, ribs, or
floor when deemed n~cessary." For example, when it is "impractical and unsafe" to collect full
band or perimeter samples, floor samples may be collected separately. (Id.).
Tenney testified that a band sample "takes an extreme amount of time, it takes several
minutes [to collect]. Its not something we do in a few seconds." (Tr.353). Instead of using the
band method of collection, Tenney stated he collected five dust samples simply by sweeping
loose material from the mine floor into a pan and then transferring the material into a bag.
To determine the locations where dust samples would be collected, Tenney testified,"... they
were just random. Take one here, take one there, and we were walking throughout the area, and
when I got to an area where I thought it was really bad, I just took a sample." (Tr. 361)
(Emphasis added).
Tenney was asked whether he should have taken the time to obtain band samples,
particularly in this case where the samples would be used to support an alleged unwarrantable
failure. "Perhaps I should have taken the method and the time involved in it. In this instance,
the severity was so clear to me that it was not an area of concern." (Tr. 357). Nonetheless,
Tenney admitted that band samples would have contained a higher percentage of incombustible
content than the incombustible content contained in his mine floor samples. (Tr. 362-64).
Based on his conclusion that there was no visible rock dust on the mine floor in entry
Nos. 4 through 8, Tenney issued 104(d)(2) Order No. 4889945 citing an alleged violation of the
mandatory s'afety standard in section 75.403. This mandatory standard states in pertinent part:
Where rock dust is required to be applied, it shall be distributed upon the top,
floor, and sides of all underground areas of a coal mine and maintained in such
quantities that the incombustible content of the combined coal dust, rock dust, and
other dust shall be not l~ss than 65 per centum ....
104(d)(2) Order No. 4889945 states:
The incombustible content of the combined coal dust, rock dust and other dust of
the St. Leo-9 South (058) section does not appear to be properly maintained. The
mine floor and ribs of the #3 thru #7 entries from the 1st crosscut inby the section
loading point (#4 crosscut), inby to the last open crosscut (#8 crosscut), have been
poorly rock dusted at best during development. Many areas are black and the
roadways are dry with coal having been ground to dust and coal fines by mobile
equipment. The #7 entry from the last open crosscut outby for 400 feet shows no
460

evidence ofrock dust on the floor. Condition is obvious to the most casual
observer. The following spot samples were collected to support this order:
(1) #7 entry 40 ft. outby #8 crosscut (2) #7 entry 30 ft. outby #7 crosscut
(3) crosscut 3 to 4 #4 crosscut (4) crosscut 3 to 4 #5 crosscut (5) #6 entry
midway between 7 & 8 crosscut. These samples are representative of entire area.
(Gov. Ex. 2).
Laboratory analysis of the rock dust sample obtained by Tenney reflected incombustible
contents ranging from 23.6% to 36.9%, below the required 65% incombustible content required
by section 75.403. (Gov. Ex. 3).
Inspector Tenney reviewed the preshift and onshift books for the 9 South section. No
references to spillage or accumulations of coal were noted in the preshift examination report for
the day shift of May 20, 1998. Because the accumulations of coal and the need for additional
rock dust for the section were not listed in the preshift book, Tenney issued 104(d)(2) Order
No. 4889946 alleging a violation of30 C.F.R. § 75.360(a)(l). This mandatory safety standard
provides, in pertinent part," ... a certified person designated by the operator shall make a preshift
examination [for hazardous conditions] within 3 hours preceding the beginning of any shift ... "
As previously noted, Danny Kuhn accompanied Tenney on his May 20, 1998, inspection.
Kuhn, now retired, worked for Consol for 32 years. In the 15 years preceding his retirement,
Kuhn was a safety inspector in Consol's safety department. Kuhn had been in the 9 South
section on the day shift of May 19, 1998, to check on the abatement of a citation that inspector
Tenney had issued on May 18, 1998. At that time, the construction work in the No. l, 2, and
3 entries had been completed and the entries were being rock dusted with hoses that are
connected to a track mounted bulk duster.
During th~ midnight shift beginning at 12:01 a.m. on May 20, 1998, comers were cut
from coal pillars at the No. 6 entry at the No. 7 crosscut, and at the inby end of the belt trench in
the No. 5 entry at the No. 7 crosscut, to widen these areas to enable equipment to negotiate turns.
Additional cutting of the pillar in the No. 6 entry had been done at the time of Tenney's
inspection. Consol's production foreman Thomas Zapach stated material cut from pillars during
the bumping process was cleaned as soon as practicable, after the continuous miner and other
equipment were moved so that the area could be cleaned.
Kuhn recalled the belt trench and overcasts were substantially completed during the day
and afternoon shifts of May 19, 1998. However, Zapach testified additional trench cutting
occurred on the day shift of May 20, 1998.

461

On the day of the inspection, Kuhn testified the bulk dusting hose was extended from the
bulk duster in the track entry into the No. 3 crosscut between No. 3 and No. 6 entries. Kuhn
testified that bulk rock dusting could not be accomplished until construction was complete. For
example, Kuhn explained the trench was being cut in the roof of the No. 5 entry, the full length
from the No. 4 crosscut through to the No. 7 crosscut. To ventilate the roof dust away from the
continuous miner operator and roof bolters who were cutting the trench, the dislodged gray roof
dust was blown inby the No. 5 entry along the No. 4, 5, 6, and 7 crosscuts obscuring previous
inert rock dust that had been applied during the mining process. Kuhn explained that the mine
floor could not be rock dusted until the trench and overcast debris was scooped and cleaned from
the floor because the scoop would remove rock dust that was applied to the mine prior to the
cleanup process.
In addition, equipment and trailing cables that were stored in the section during the
construction phase had to be removed from the section so that the roads could be cleaned.
With the exception of the two areas of accumulations resulting from the recent bumping of the
piJlars, both Kuhn and Zapach attributed the coal dust accumulations observed by Tenney to rib
sloughage that was run over by mine equipment and distributed by shuttle car drags, rather than
spillage from shuttle cars. Zapach stated that sloughage has inert rock dust content form the
previously rock dusted ribs, although he conceded there may be instances where additional rock
dusting is needed.
In summary, both Kuhn and Zapach testified that, like the No. 1 through No. 3 entries that
had been thoroughly rock dusted immediately after construction work was completed, the No. 4
through 8 entries were to be bulk rock dusted as soon as construction was completed, the trench
and overcast debris was cleaned from the mine floor, and the stored equipment with its trailing
cables were moved out of the roadways.

II. Further Findinis and Conclusions
In January 1998, jurisdiction over Consol's Loveridge No. 22 mine was transferred from
MSHA's Fairmont West Virginia field office to MSHA's Bridgeport, West Virginia field office.
After initially inspecting the min~, inspector Tenney and his supervisor in the Bridgeport office
met with Consol's management personnel and informed them that their ·~ock dusting procedures
and their clean-up was borderline to substandard." (Tr. 47-49). The company was told to "step
up, to come foiward, to increase their compliance level." (Id.). Having concluded Consol's past
emphasis on cleanup and rock dusting under the jurisdiction of the Fairmont field office was
inadequate, Tenney entered the 9 South Leo section, where construction rather than active
mining, was occurring.

462

The three alleged violative conditions in issue concern impermissible coal dust
accumulations, the failure to adequately rock dust, and the failure to note the cited conditions in
the preshift examination book. fu order to evaluate whether the Secretary has established, by a
preponderance of the evidence, that the cited S&S violations occurred, and, if so, whether they
are attributable to Consol's unwarrantable failure, the cited violations must be viewed in the
context of the construction that was occurring in the 9 South Leo section on May 20, 1998.
A. Order No. 4889944 - Accumulations
i. Fact of Occurrence
Section 75.400, the cited mandatory standard, requires that coal dust and other
combustible materials shall "not be permitted to accumulate in active workings." Since coal
dust is a natural consequence of mining, the question is whether Consol "permitted" the
accumulations to occur without making any effort to remove them. fu applying section 75.400,
the Tenth Circuit Court of Appeals has stated section 75.400 "prohibits permitting [coal dust] to
accumulate; hence it must be cleaned up with reasonable promptness, with all convenient speed."
Utah Power & Light v Secretary ofLabor, 951F.2d292, 295 n.11, (101h Cir. 1991). Thus,
resolution of whether Consol's actions constitute a violation of section 75.400 is dependent on
the amount oftiine Consol allowed the accumulations to remain on the mine floor. Since the
Mine Act is a strict liability statute, Consol may be held liable for violation of this mandatory
safety standard without regard to fault. Wyoming Fuel Co., 16 FMSHRC 19, 21(January1994).
The accumulations in the 9 South section that serve as the basis for the cited
section 75.400 violation are coal accumulations from a bulldozed comer in the No. 6 entry at the
No. 7 crosscut measuring 20 inches deep, by 12 feet long, by 8 feet wide, as well coal and roof
rock dust accumulations, from one to two inches in depth, with deeper accumulations filling
irregularities in the mine floor (potholes), in the No. 4 through No. 8 entries and crosscuts. The
origin of the mine floor accumulations primarily was from coal rib sloughage that had been run
over and ground ihto dust by battery operated scoops transporting blocks and overcasts. The
ground sloughage material was combined with dark gray roof dust by shuttle car drags.
Consol admits the "bumping" residuals were allowed to remain on the mine floor from
some time during the midnight shift beginning at 12:01 on May 20, 1998, when two pillars were
bumped, until they we~e observed by inspector Tenney at approximately 10:00 a.rn. the following
morning. Tenney's speculation that the conditions he observed existed for approximately 12
shifts is difficult to reconcile with his testimony that mining in the 9 South section was
"periodic" with very slow face advancement. However, since construction had occurred in the
subject entries since at least May 18, 1998, it is reasonable to conclude the widespread
accumulations from ground sloughage that was spread by shuttle cars existed for a minimum of
several shifts.

463

As a general proposition, in defining a prohibited "accumulation" for section 75.400,
the Commission has recognized that "some spillage of combustible materials may be
inevitable in mining operations. However it is clear that those masses of combustible materials
which could cause or propagate a fire or explosion are what Congress intended to proscribe."
Old Ben Coal Co., 2 FMSHRC 2806, 2808 (October 1980) (Old Ben JI). Whether conditions
constitute a violation of section 75.400 should be committed to the broad discretion of the
mine inspector. Id.
Here, the cited accumulations, consisting of sloughage that had been run over and
dragged into the haul roads, were extensive. The combustible content of the ground up
sloughage varied with the concentration of roof rock dust and other inert material mixed together
by the shuttle car drags. Consol, by subordinating its cleanup responsibility to its desire to
complete construction allowed these conditions to exist for several shifts. Accordingly, the
Secretary has demonstrated the elements of a section 75.400 violation.
ii. Significant and Substantial

A violation is properly designated as S&S in nature if, based on the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to by
the violation will result in an injury or an illness of a reasonably serious nature. Cement
Division, National Gypsum, 3 FMSHRC 822, 825 (April 1981 ). In Mathies Coal Co., 6
FMSHRC 1(January1984), the Commission 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 [by the violation] will
result in an injury; and (4) a reasonable likelihood that the injury in question will
be of a reasonably serious nature. 6 FMSHRC at 3-4.
Id. at 3-4 (footnote omitted). See also Austin Power Co. v. Secretary, 861F.2d99, 104-05 (5th
Cir. 1988), affg 9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria).

In determining if it is reasonably likely that a cited condition will result in serious injury,
it is not necessary to show that miners were exposed directly to the resultant hazard at the time of
the inspection. Rather, the Commission has stated an evaluation of the reasonable likelihood of
injury should be made assuming continued normal mining operations. Halfway Incorporated,
8 FMSHRC 8, 12 (January 1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).

464

Applying the Mathies criteria, having concluded Consol violated section 75.400, the first
element is satisfied. Because coal dust accumulations are potentially combustible, and, if
combustion, i.e., fire or explosion, were to occur, there is a reasonable likelihood that miners
would sustain serious injury, the second and fourth elements of the Mathies test are met. The
remaining criterion, a reasonable likelihood that the combustion hazard caused by the violation
will result in injury, requires examining whether there was a "confluence of factors" present
based on the particular facts surrounding the violation that would make a fire, ignition, or
·explosion reasonably"likely. Texasgulf, Inc., 10 FMSHRC 498, 501 (April 1988). Some of these
factors include the extent of the accumulations, possible ignition sources, the presence of
methane, and the type of equipment in the area. Enlow Fork Mining Co., 19 FMSHRC 5, 9
(January 1997) citing Utah Power & Light Co., 12 FMSHRC 965, 970-71(May1990);
Texasgulf, 10 FMSHRC at 500-03.
As a threshold matter, although minimal concentrations of .1 % to .2% methane were
present in the 9 South section on May 20, 1998, Consol's Loveridge No. 22 Mine liberates more
than 1,000,000 cubic feet of methane in a 24 hour period subjecting the mine to spot inspections
under section 103(i) of the Mine Act, 30 U.S.C. § 813(i). Thus, the cited extensive
accumulations, that could be put in suspension by the drags on the shuttle cars, was a source of
propagation in the event of a methane fire or explosion in any part of the mine.
In addition to the general methane explosion hazard originating in other areas of the mine,
inspector Tenney testified about several potential ignition sources in the 9 South section. For
example, Tenney noted continuous miner bits hitting sulfur balls, acetylene torches used for
welding, and electrical trailing cables that were subject to damage as mining equipment drove
over them, as potential ignition sources.
Accordingly, the evidence amply reflects a reasonable likelihood, given continued mining
operations;.that the hazard contributed to by the cited combustible accumulations will result in an
event (a fire or.explosion) causing injury of a reasonably serious nature. Consequently, the S&S
nature of the suoject section 75.400 violation shall be affirmed.
B. Order No. 4889945
Section 75.403, the cited mandatory standard, requires rock dust to be applied to the roof,
ribs and floor of all underground mine areas so as to maintain "incombustible content of the
combined coal dust, [white, applied] rock dust, and other dust" ofless than 65 per centum.
(Emphasis added). Upon his arrival on the 9 South section on May 20, 1998, Tenney's
observations led him to believe the incombustible content of the combined dust found on the
section was less than the 65 percent standard. (Tr. 171). I emphasize "combined dust," because
violative samples taken from isolated coal spills, residuals of coal cut from coal pillars, and areas
of coal sloughage, alone, are not evidence of inadequate rock dusting.
Sometime prior to beginning construction in the 9 South section, Tenney concedes the
465

section had been rock dusted during the course of the normal mining cycle when the entries were
advanced. In fact, Tenney observed rock dust on the roof and halfway up the ribs. Kuhn, the
company representative who accompanied Tenney during his inspection admits the section
looked "bad" on May 20. 1998, because of the dark gray roof material that had been blown inby
throughout the section to ventilate the construction roof dust away from the miner and roof bolter
operators. Spillage of the roof debris in the haul roads was also likely. The shuttle car drags
would mix the roof rock material that had fallen on the mine floor with the cited coal dust
sources, such as sloughage that was run over by mine equipment.
Thus, the fact that the conditions of the mine floor and lower ribs looked black in color
on May 20, 1998, is not in dispute. The issue is whether the general conditions in the 9 South
section at that time constituted a violation of Section 75.403 because there was less than 65
percent incombustible content. Five rock dust samples obtained by Tenney, taken by sweeping
samples from the mine floor into a pan, revealed incombustible contents ranging from 23.6% to
36.9%, below the required 65% incombustible content. However, Consol argues the samples
taken by Tenney are not representative samples because Tenney did not use the band collection
method that involves mixing roof, rib and mine floor dust.
Provisions in MSHA's policy manuals, such as the band sample procedures for dust
sample collection in MSHA's Coal General Inspection Handbook, are not officially promulgated
and they are not binding on the Commission. Utah Power, 12 FMSHRC at 969 citing King Kob
Coal Co., 3 FMSHRC 1417, 1420 (June 1981). Moreover, the question of whether a band
sample is required to support a rock dust violation is not a matter of first impression. Rather, the
Interior Board of Mine Operations Appeals, the predecessor of this Commission, addressing
Section 304(d) of the 1969 Coal Act that contains the identical language in section 75.403, has
held that laboratory results of floor samples alone may be the basis for establishing a violation of
an incombustible content standard. North American Coal Corporation, 1 MSHC 1130, 1134
(1974).
While floor samples alone may be adequate to support a section 75.403 violation, the
analysis does not stop there. The floor samples must be taken from representative areas of the
mine floor, rather than from areas where discrete coal accumulations are located. Although
Tenney testified that he took the floor samples randomly, he stated that he took the samples from
areas that he thought "[were] really bad." (Tr. 361 ). When asked to clarify the apparent
contradiction between his "random" sampling and his selection of"bad areas," Tenney
responded, "I would say that I picked out the areas that I was confident the rock dust content
was the lowest." (Tr. 367).
When an MSHA inspector departs from recommended procedure by collecting floor
samples instead of band samples as representative of mine conditions, the Secretary must bear
the burden of demonstrating the samples are representative. Here, Tenney's selection of areas
where he believed rock dust content was the lowest renders the samples unrepresentative, thus
voiding the laboratory findings.

466

Hence, the Secretary is left solely with Tenney's observations. Observations alone,
particulary in this case where there were significant quantities of dark gray roof dust throughout
the 9 South section, are inadequate to support a section 75.403 violation. Accordingly, 104(d)
Order No. 4889945 shall be vacated.
C. Order No. 4889946
Order No. 4889946 cites an alleged violation of section 75.360 that requires "a certified
person designated by the operator shall make a preshift examination within 3 hours preceding the
beginning of any shift during which any person is scheduled to work or travel underground."
Thus, the operative time frame for determining the period during which conditions should have
been noted in the preshift book is the three hour period before the beginning of the 8:00 a.m. day·
shift on May 20, 1998, or from 5:00 a.m. to 8:00 a.m.
Consol admits that bumping material that occurred during the midnight shift immediately
preceding the May 20, 1998, day shift had not been cleaned from the mine floor. The evidence
also reflects areas of sloughage that had been run over by mine equipment and pushed into the
haul entries were also present at least 3 hours before the beginning of the May 20, 1998, day
shift. As discussed above, these conditions constituted hazardous conditions. Such hazards
must be noted in the preshift book. Even though it was noted that the mine section was idle,
construction personnel were present on the section. Accordingly, Consol's failure to note
these hazardous accumulations in the preshift examination book constitutes a violation of
section 75.360.
With regard to the S&S issue, the Commission has stated that thorough preshift
examinations are fundamental to coal mine safety. Buck Creek Coal Co., 17 FMSHRC 8, 15
(January 1995). The failure to note existing coal dust accumulations in the preshift examination
book contributes to the continuing presence of a hazardous condition. As a consequence, given
the above discussion about the likelihood of serious injury occurring as a result of the
combustion hazard, it is reasonable to conclude that the cited violation of section 4889946 was
properly designated as S&S in nature.
D. The Unwarrantable F~lure Issue
The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C.
§ 814(d), and refers to more serious conduct by an operator in connection with a violation.
A finding of unwarrantable failure requires evidence of unjustifiable or aggravated conduct
constituting more than ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2001
(December 1987). Unwarrantable failure is characterized by such conduct as "reckless
disregard," "intentional misconduct,". "indifference," or a "serious lack of reasonable care." Id.
At 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck
Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (71h Cir. 1995) (approving Commission's
unwarrantable failure test).
467

Ordinarily, allowing accumulations to exist for several ·shifts clearly would constitute a
very serious breach of the duty to clean combustible accumulations with all deliberate speed that
section 75.400 imposes on operators. Thus, it is easy to dismiss the respondent's construction
defense and consider this matter as a routine coal dust accumulation case attributable to an
unwarrantable failure. However, to do so would ignore the mining cycle by superimposing the
routine standards for cleanup that apply after an entry has been driven and roof bolted to a
construction area wher~ active mining is not in progress.
The degree of negligence associated with violative coal dust accumulations must be
evaluated on a case-by-case basis. The Commission has noted that the totality of circumstances
are relevant in determining whether a violation is the result of an operator's unwarrantable
failure, such as the extensiveness of the accumulations, the length of time the violation was
permitted to exist, the operator's efforts to eliminate the condition, and whether an operator has
been placed on notice that greater efforts are necessary for compliance. Windsor Coal Company,
21FMSHRC997 (September 1999).
That accumulations existed for several shifts is not in dispute. The central issue is
whether Consol's failure to remove the cited accumulations is unjustifiable and inexcusable
given the facts of this case. The Secretary has confronted Consol with a dilemma. The Secretary
insists that it is inexcusable for Consol to have proceeded with construction activities without
first cleaning and rock dusting the 9 South section. However, the evidence reflects that Consol's
ability to clean and rock dust the section prior to completion of construction was greatly
impaired.
There were numerous pieces of mining equipment for the new lD section, as well as for
the 9 South section, that had been stored inby and outby the tailpiece. These pieces of machinery
were equipped with lengthy trailing cables that were stored along the base of the ribs. During
construction it was difficult to maneuver this equipment until pillars were bumped where
necessary. While this equipment was stored, trenches and overcasts were cut in the mine roof
that generated large quantities of mine roofrock dust. This mine roof dust was ventilated away
from the continuous miner and roof bolt operators by directing the roof dust inby in the Number
4 through 7 entries. At what point during the construction process was it appropriate for Consol
to withdraw all of this equipment to make the entries and crosscuts accessible for cleaning? If it
had done so, at what point would Consol have to again withdraw all of the equipment to scoop
and rock dust after construction activities had resumed?
Clearing the section for cleaning during construction was difficult. In this regard,
it took several shifts to remove the equipment, scoop the area, and bulk rock dust in order to
abate Order No. 4889944. From the time the 104(d) order was written at 10:30 a.m., Consol
worked all of its crews and all of the equipment around the clock to abate the order. To correct
the cited conditions Consol had to move two continuos miners, two loading machines and two
roofbolters. The continuous miner and loading machine cables, that were stored along the ribs,
also had to be removed. Both the continuous miner cables and the loading machine cables are
468

approximately 1,000 feet long. Consol was not finished cleaning the section when Tenney
arrived at the mine at 5:00 a.m. the following day. The order was terminated at 7:00 a.m. on May
21, 1998. Thus, it took approximately 20 hours to clean and rock dust the section. When viewed
in this context, the question is whether Consol's decision to briefly delay cleanup and bulk
dusting in the 9 South section until it had completed construction, like it had done for the No. 1
through No. 3 entries, constitutes aggravated conduct.
In recognizing Consol's difficulty in cleaning the section under these circumstances, I am
not trivializing the significance of hazardous accumulations, or, ignoring Consol's responsibility
to remove the accumulations. However, an operator's continuing obligation to remove coal
accumulations must be distinguished from whether its failure to do so is egregious behavior
properly characterized as aggravated, unjustifiable, or inexcusable conduct. As discussed below,
Consol's history of section 75.400 violations demonstrates that accumulation violations are most
often not attributable to unwarrantable conduct. Of necessity, accumulations are permitted
during certain stages of the mining cycle. For example, accumulations remain on the mine floor
during the continuous mining and roof bolting process because it is not practicable to remove the
accumulations until the continuous miner can be backed out of the entry. Utah Power, 12
FMSHRC at 967.
While not dispositive of the unwarrantable failure issue, it is noteworthy that MSHA
investigated this matter and decided not to pursue an action under section 110(c) of the Mine
Act, 30 U.S.C. § 820(c), that requires a showing that mine management "knowingly" violated the
subject mandatory standards. (Resp. Ex. 3). Such a showing requires demonstrating aggravated
conduct on management's part constituting more than ordinary negligence. BethEnergy Mines,
Inc., 14 FMSHRC 1232, 1245 (August 1992).
Finally, the concepts of"notice" and "a history of repeated similar violations" must be
distinguished. A history of numerous repeated similar violations is not necessary to establish that
an operator was o.n notice. Notice may be established based on a history of only one similar
violation where an operator claims, for mitigation purposes, that it was not aware of a particular
safety hazard, or, that it did not understand a particular safety standard.
In the present case, the_Secretary asserts Consol's conduct constitutes unwarrantable
failure because it was on notice as a consequence of its history of section 75.400 coal dust
accumulations violations. However, in the current case, notice is not in issue, in that Consol
does not assert that it was unaware of its responsibility to promptly remove coal dust
accumulations. Rather, the mitigating circumstances relied on by Consol concern issues
concerning section construction. Thus, Consol's conduct must be evaluated on the basis of its
behavior during construction, without regard to Consol's obvious awareness, as well as the
awareness of all other operators, that operators are responsible for promptly cleaning coal dust
accumulations.

469

During the two year period preceding the issuance of the orders in issue, from May 20,
1996, through May 19, 1998, Consol was cited for 88 violations of section 75.400. Of these
88 violations, two were attributable to Consol' s unwarrantable failure. Of the 88 violations,
44 violations were assessed $50 penalties and characterized as non-S&S. The majority of the
civil penalties assessed for the S&S violations ranged between $267 and $595.
Although Cons()l's history of numerous section 75.400 violations is a relevant
consideration under section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), and warrants increasing
the civil penalty to encourage deterrence, I am not persuaded, as the Secretary suggests, that
Consol's history of violations elevates its behavior to aggravated conduct. Such an approach is
inconsistent with the statutory language of section 104(d) that sets forth the circumstances for
the Mine Act's graduated enforcement scheme. In Greenwich Collieries, 12 FMSHRC 940 (May
1990) the Commission noted:

The focus of section 104(d) is upon the operator's
unwarrantable conduct. Section 104(d) seeks to discourage
repetition of such conduct by placing the operator on a
probationary "chain." This probationary period, backed up by the
threat of a withdrawal order, is "among the Secretary's most
powerful instruments for enforcing mine safety." UMWA v.
FMSHRC, supra, 768 F.2d at 1479.
12 FMSHRC at 945. (Emphasis added). Using repeated similar violations to establish that an
operator has unwarrantable character shifts the statutory focus by imposing withdrawal sanctions
on operators with a history of repetitious violations rather than a history of repetitious
unwarrantable conduct. While this powerful enforcement procedure may be desirable, it is not
authorized b¥ the plain language of the statute.
I am not suggesting that prior similar violations are always immaterial. There may be
situations where repeated violative conduct is important in demonstrating an unwarrantable
failure because the violative conduct is specific, such as a repeated failure to trim hazardous
stockpiles. However, here, a history of a generic failure to clean coal dust accumulations, that
may have occurred because of~ unknown myriad of circumstances, may not be used to establish
that an operator's current violative conduct is habitual. Consequently, in this case, where notice
is not in issue, and specific habitual violative conduct has not been shown, Consol's history of
violations does not provide an adequate basis for elevating its moderate negligence on May 20,
1998, to unjustifiable or inexcusable conduct.
Accordingly, I conclude Consol's failure to clean the cited accumulations, and its
failure to note the conditions in the preshift examination book because construction on the
section was not yet complete, were not attributable to its unwarrantable failure. Thus, I 04(d)
Order Nos. 4889944 and 4889946 shall be modified to 104(a) citations.

470

III. Civil Penalty
Section 11 O(i) of the Act provides the statutory criteria for to determining the appropriate
civil penalty to be assessed. Section 11 O(i) provides, in pertinent part, in assessing civil
penalties:
the Commission shall consider the operator's history of previous violations, the
appropriateness· of such penalty to the size of the business of the operator charged,
whether the operator was negligent, the effect on the operator's ability to continue
in business, the gravity of the violation, and the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after notification of a
violation.
The parties have stipulated that Consol is a large mine operator and that the civil penalties
initially proposed by the Secretary in this matter will not affect Consol's ability to continue in
business. As discussed above, the violations are of serious gravity and are attributable to no
more than Consol's moderate negligence. Consol's immediate suspension of construction
activities and its concerted efforts to achieve compliance are not viewed as a mitigating
circumstance since Consol was obliged to rapidly abate the cited conditions. Finally, although
Consol's history of numerous similar 75.400 violations does not provide an adequate basis for
elevating its conduct to an unwarrantable failure, its significant violation history is a basis for
increasing the civil penalty for Citation No. 4889944 to encourage greater efforts of future
compliance. 1
Accordingly, consistent with the statutory penalty criteria, a civil penalty of $3,500.00
shall be assessed for the violation of section 75.400 cited in modified Citation No. 4889944, and
a civil penalty of $1,500.00 shall be assessed for the violation of section 75.360 cited in modified
Citation No. ·4889946.
IV. The Settlement Agreement
The parties' settlement agreement with respect to remaining 104(d)(2) Order Nos.
4703193,,4703221 and 4703222 was granted on the record. (Tr. 696). Consol agreed to a
reduction in civil penalty from $27,000.00 to $4,500.00. The settlement terms included
vacating Order No. 4703222, and modifying 104(d)(2) Order No. 4703221 to a 104(a) citation
and imposing a $1,500.00 civil penalty. 104(d)(2) Order No. 4703193 remained unchanged
although the civil penalty was reduced from $9,000.00 to $3,000.00.

1

The $3,500 civil penalty imposed herein for Consol's section 75.400 violation is
significantly higher than the penalties proposed by the Secretary for Consol's prior section
75.400 violations.
471

ORDER
ACCORDINGLY, IT IS ORDERED that 104(d)(2) Order No. 4889945
IS VACATED.
IT IS FURTHER ORDERED that 104(d)(2) Order Nos. 4889944 and 4889946
ARE MODIFIED to a 104 citations to reflect that the cited violations of sections 75.400
and 75.360 were not attributable to Consolidation Coal Company's unwarrantable failure.
IT IS FURTHER ORDERED that Consolidation Coal Company shall pay a
$3,500.00 civil penalty for modified Citation No. 4889944, and a civil penalty of 1,500.00
for modified Citation No. 4889946.
IT IS FURTHER ORDERED, consistent with the parties' settlement agreement reached
at trial, that 104(d)(2) Order No. 4703222 IS VACATED, and, Consolidation Coal Company
shall pay civil penalties of $1,500.00 for modified 104(a) Citation No. 4703221, and $3,000.00
for 104(d)(2) Order No. 4703193.
IT IS FURTHER ORDERED that Consolidation Coal Company pay a total civil
penalty of $9,500.00 in satisfaction of the subject orders and citations. Payment shall be made
within 40 days of the date of this decision. Upon timely payment of the total $9,500.00 civil
penalty, this matter IS DISMISSED.

Jerold Feldman
Administrative Law Judge
Distribution:
Melonie J. McCall, Esq., Office of the 'Solicitor, U.S. Department of Labor, 4015 Wilson Blvd.,
Suite 516, Arlington, VA 22203 (Certified Mail)
Elizabeth Chamberlin, Esq., Consolidation Coal Company, 1800 Washington Road, Pittsburgh,
PA 15241 (Certified Mail)
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472

ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET, N.W., Room 6003
WASHINGTON, D. C. 20006-3868
Telephone No.: 202-653-5454
Telecopier No.: 202-653-5030

March 7, 2000
CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 95-272
A. C. No. 15-16856-03536

v.
Docket No. KENT 95-276
A. C. No. 15-16856-03537

KYBER COAL COMPANY,
Respondent

Docket No. KENT 95-280
A. C. No. 15-16856-03538
Docket No. KENT 95-284
A. C. No. 15-16856-03539
Docket No. KENT 95-288
A. C. No. 15-16856-03540
Docket No. KENT 95-689
A. C. No. 15-16856-03544
Docket No. KENT 95-692
A. C. No. 15-16856-03542
Docket No. KENT 95-697
A. C. No. 15-16856-03547
Docket No. KENT 95-701
A. C. No. 15-16856-03545
Docket No. KENT 95-707
A. C. No. 15-16856-03548
Docket No. KENT 95-713
A. C. No. 15-16856-03543
Docket No. KENT 95-715
A. C. No. 15-16856-03546
Docket No. KENT 95-776
A. C. No. 15-16856-03549
Elmo No. 5 Mine

473

ORDER GRANTING MOTION FOR A RULING IN LIMINE
ORDER DENYING MOTION FOR REMAND
ORDER DENYING MOTION FOR LEAVE TO FILE REPLY BRIEF
In these civil penalty cases the Secretary is petitioning for the assessment of civil
penalties against Kyber Coal Company for approximately 219 alleged violations of mandatory
safety standards for underground coal mines. The matters are part of the Berwind series of cases
in which the Secretary alleged that five entities, Berwind Natural Resources Corporation
(Berwind), Kentucky Berwind Land Company (Kentucky Berwind), Jesse Branch Coal Company
(Jesse Branch), Kyber Coal Company (Kyber) and AA&W Coal Company (AA&W) were liable
jointly and severally for numerous violations of mandatory safety standards at the Elmo No. 5
Mine. The cases arose out of an explosion that occurred at the mine on November 30, 1993. The
explosion took the life of one miner.
AA&W did not contest the Secretary's assertion of jurisdiction, but the other four
companies did. Each of the four argued that they were not operators under section 3(d) of the
Mine Act (30 U.S.C. §802(d)) and hence they were not liable for the alleged violations. The
cases were assigned to me, and I bifurcated them in order to determine first the jurisdictional
questions. Following a ruling on cross motions for summary decision and a hearing on the
jurisdictional aspects of the cases, I held that Berwind, Kentucky Berwind, and Jesse Branch
were not operators, but that Kyber was (Berwind Natural Resources Corporation, et al.,
18 FMSHRC 202 (February 1996)). On appeal, the Commission upheld this result, albeit on the
basis of a different rationale (Berwind Natural Resources Corporation, et. al., 21 FMSHRC 1284
(December 1999)). Thus, of the four entities who contested the Secretary's assertion ofjurisdiction,
only Kyber remained a party subject to potential liability for civil penalties should the Secretary
prove her allegations regarding the merits of the alleged violations. Because of this, the Commission
remanded the matter to me for further proceedings as to Kyber (21 FMSHRC at 1325).
After,receiving the remand, I ordered counsels for Kyber and the Secretary to engage in
extensive prehearing discussions on a number of issues and to report the results of their discussions in an on-the-record conference (see Order (January 12, 2000)). In the meantime, Kyber has
filed two motions. One motion seeks a ruling in limine that the Secretary improperly proposed
assessments based upon a theory of joint and several liability. The motion goes on to request
that if violations are found to have existed, civil penalties be assessed against Kyber according to
the criteria of section 1 IO(i) of the Act (30 U.S.C. § 820(i)) and according to the Secretary's
regulations (30 C.F.R. Part 100) as those criteria and regulations individually apply to Kyber.
The other motion seeks a ruling that because the Secretary improperly assessed the proposed civil
penalties, the penalties be remanded to the Secretary for recalculation on the basis of the criteria
and regulations as they apply individually to Kyber (Kyber Motion For Ruling In Limine and
Contingent Motion for Remand (February 8, 2000)).
The Secretary opposes the motions and argues the courts and the Commission long have
accepted the concept ofjoint and several liability in multiple operator situations and that the
proposed penalties were assessed properly. The Secretary asserts that the term "operator" in
section 11 O(i) of the Act can refer to joint operators where multiple entities are running a mine
474

and thaf the civil-penalty criteria enumerated in section 11 O(i) can be applied to the combined
operation of a mine as easily as to separate companies (Sec. Resp. 3-4). Additionally, the
Secretary opposes remanding the cases for recalculation of the penalties. She states that "the
Commission, as the ultimate determiner of the suitability of penalties, can make a determination
de novo on that question at the time of trial" (Id:. 5).

The Secretary's Petitions and The Proposed Penalties
The Secretary's petitions name Kyber as the Respondent and state that Berwind,
Kentucky Berwind, Jesse Branch, Kyber and AA&W each are ''jointly and severally liable for the
penalties associated with the [alleged] violations" (Petition 2). In Exhibit A of the petitions the
Secretary additionally states, "The same proposed assessment was issued jointly and severally to
AA&W.... , Jesse Branch ... , [Kentucky] Berwind .. ., and Berwind ... for the violations
alleged" (see e.g., Exhibit A (Docket No. KENT 95-272)). (Exhibit A is a form that "list[s] the
alleged violations and the proposed penalties" (29 C.F.R. §2700.28(b)). It contains the Secretary's evaluation of the civil penalty criteria and reveals how the Secretary determined the
proposed assessments.)
A review of the Secretary's petitions and the exhibits makes clear that the Secretary
applied the same penalty criteria to all of the alleged operators. She did so even though most, if
not all of the criteria, were based upon AA&W's operation of the mine. For example, the
criterion of the appropriateness of the penalty to the size of the business was based upon the
tonnage attributed to AA&W and the operator's history of previous violations was based upon
the prior violations issued to AA&W. The Secretary made no attempt independently to apply
the penalty criteria to Kyber or to any other of the Berwind-related entities. In essence, when it
came to proposing penalties, Kyber was treated as though it were AA&W.
The Commission found that at all times relevant, Kyber was an operator because "Kyber
was substantially involved in the mine's operation" (Berwind, 21 FMSHRC at 1294) and the
Commission agreed that "Kyber's active participation and its authority to actively participate in
the decision-making process regarding the daily development of the mine ... rendered ...
[Kyber] an operator within the meaning of the Act" (Berwind, 21 FMSHRC at 1295). As an
operator, Kyber will be liable, jointly with AA&W, for the penalties assessed for all violations
that are found to have existed at the mine.
However, although Kyber and AA&W will be liable jointly, their shared liability should
not be confused with their status as operators. Kyber and AA&W are individual, not unitary,
operators. In this regard, it is worth noting that they do not possess common management, they
do not share common ownership, and one does not have such pervasive control over the other
that they should be treated as one (see Berwind, 21 FMSHRC at 1317). Because they are
individual operators of the same mine they are entitled to have the Secretary propose penalties on
the basis of the penalty criteria as the criteria apply individually to them. Therefore, I conclude
the Secretary incorrectly proposed the civil penalties for which she petitioned.

Is A Remand Appropriate
475

Having found the Secretary erred in proposing the penalties, the question is whether a
remand to re-propose them is appropriate. As the parties recognize, the Commission has held
that in certain circumstances it has the authority to require the Secretary to re-propose penalties in
a manner consistent with the Part 100 penalty regulations. The Commission's goal in ordering
the Secretary to do so is to guard against arbitrary agency action (Youghiogheny & Ohio Coal
Co., 9 FMSHRC 673 (April 1987) (Youghiogheny & Ohio Coal Co.)). There are considerations
in the subject cases that at first glance seem to call for a remand. The Secretary has, in fact, acted
arbitrarily in proposing penalties, and Kyber has objected to the Secretary's action (see
Youghiogheny & Ohio·Coal Co., 9 FMSHRC at 679-680)). In fact, not only has Kyber objected
in the motions under consideration, she raised the same objection much early in the proceedings
(see Kyber Motion To Stay Further Proceedings (March 22, 1995)). Moreover, it could well be,
as Kyber maintains, that re-proposed penalties would make more likely a comprehensive
settlement of the cases.
However, the question of a remand essentially is one of discretion rather than of law, and
while I recognize that there are factors which well might justify an order requiring the Secretary
to re-propose the penalties, I conclude the factors are overshadowed and outweighed by another
consideration. An order remanding the cases would not be "intercession by the Commission at
an early stage of the litigation" (Drummond Company. Inc., 14 FMSHRC 661, 667 (May 1992)).
Rather, these cases, which now have proceeded to the point where the merits of the alleged
violations can be adjudicated, are among the oldest, if not the oldest, on the Commission's
docket, and they must be resolved. Any further delay, such as that occasioned by a remand, only
would make the disappearance of witnesses and the fading of memories more likely than they are
already. The public, the industry, miners - and, perhaps above all, the parties - all have an
interest in bringing these cases to a conclusion.
Therefore, I will not order these matters remanded for re-proposal of the penalties. In
choosing to exercise my discretion in this manner I am mindful of the potential prejudice to
Kyber caused by the Secretary's erroneous initial proposed assessments. However, I believe that
any prejudice can be "cured" by applying the statutory civil penalty criteria as they relate to 1
Kyber in any independent assessments I make based on the record evidence.
ORDER
For the reasons stated above Kyber's motion for a ruling in limine is GRANTED. In
addition, Kyber's motion to remand is DENIED. Finally, Kyber's Motion for Leave to File
Reply Brief also is DENIED.
My Order of January 12, 2000, remains in effect. Under the order Kyber and the
Secretary have an obligation to confer and to discuss (1) all disputed issues of fact and law,
(2) matters that can be subject to stipulations, (3) the validity of the subject citations and order
(4) the amount of the penalties, and ( 5) possible settlement of all or any part of the cases. In view
of my ruling on Kyber's motion in limine, when the parties confer and discuss these matters, they
are directed to consider the statutory civil penalty criteria and the bearing of the criteria on the
cases solely as the criteria relate to Kyber.
476

The parties are reminded that a prehearing conference will take place at 8:30 a.m., on
April 18, 2000, and continuing to April 19, if necessary, to report on the results of the parties
discussions and on their preparations for trial.

J)(/'/;<1£~
David F. Barbour
Chief Administrative Law Judge

Distribution: (Certified Mail)
Mark R. Malecki, Esq. , Sheila Cronan, Esq., Office of the Solicitor, U.S. Department of Labor,
4015 Wilson Boulevard, Arlington, VA 22203
Robert I. Cusick, Esq., Marco M. Rajkovich, Jr., Esq., Wyatt, Tarrant & Combs, 1700 Lexington
Financial Center, Lexington, KY 40507
TimothyM. Biddle, Esq., Thomas C. Means, Esq., Crowell & Moring LLP, 1001 Pennsylvania
Avenue, N. W., Washington, DC 20004-2595
/gl

477

478

*C.S. GOVERNMENT PRINTI]l;Q OFFTCE: 200~6.2-12-1/W03