February 1982
Commission Decisions
2-04-82
2-05-82
2-16-82
2-16-82
2-16-82
2-25-82
2-25-82

Eastover Mining Co.
VA 80-84
Northern Coal Co.
WEST 80-313-D
Homestake Mining Co.
CENT 79-27-M
MSHA & Local 5024, United Steel Workers
LAKE 79-202-M
v. White Pine Copper Division, Copper Range Co.
Climax Molybdenum Co.
DENV 78-553-M
U.S. Steel Corp.
BARB 76-95
Consolidation Coal Co.
MORG 75-265

Pg.
Pg.
Pg.
Pg.

123
126
146
155

Pg. 159
Pg. 163
Pg. 168

Administrative Law Judge Decisions
2-01-82 Cleveland Cliffs Iron Co.
2-02-82 Sierra Blanca Milling &Processing Co.
2-02-82 Massey Sand & Rock Co.
2-02-82 Colorado Westmoreland, Inc.
2-03-82 Ernie Brock
2-03-82 SOL ex rel John Griffin v. Peabody Coal Co.
2-03-82 Youngstown Mines Corp.
2-03-82 Olga Coal Co.
2-04-82 Metro Asphalt Co.
2-04-82 United States Steel Corp.
2-04-82 CF&I Steel Corp.
2-04-82 Donald L Lund v. Anamax Mining Co.
2~05-82 Mullin Creek Coal Co., Sol (MSHA) et al v.
2-08-82 Consolidation Coal Co.
2-09-82 Consolidation Coal Co.
2-10-82 CF&I Steel Co~p.
2-11-82 Atlantic Cement Co.
2-12-82 Texas Industries, Inc.
2-12-82 Valley Limestone Co.
2-17-82 Keystone Coal Mining Corp.
2-17-82 Union Carbide Corp.
2-22-82 The Pittsburgh & Midway Coal Co.
2-22-82 FMC Corp.
2-23-82 Kentucky Carbon Corp.
2-23-82 Sherman Lime & Rock Co.
2-23-82 Franklin D. Johnson v. Eastern Associated
Coal Corp.
2-26-82 McDowell Quarry Co.
2-26-82 Youghiogheny and Ohio Coal Co.

LAKE 80-295-RM
CENT 80-337-M
WEST 80-94-M
WEST 81-240-R
KENT 81-192
LAKE 81-159-D
WEVA 81-379
WEVA 81-380
CENT 81-200-M
PENN 81-146
WEST 80-384-R
WEST 81-193-DM
KENT 81-17-D
WEVA 81-222-R
WEVA 82-11-R
WEST 80-387
YORK 80-101-M
CENT 79-60-M
LAKE 81-87-M
PENN 81-46
WEST 81-115-DM
WEST 79-405
WEST 81-80-M
KENT 81-140
LAKE 79-7-M
WEVA 80-647-D

Pg. 171
Pg. 177
Pg. 188
Pg. 194
Pg. 201
Pg. 204
Pg. 208
Pg. 218
Pg. 228
Pg. 234
Pg. 244
Pg. 249
Pg. 292
Pg. 336
Pg. 339
Pg. 344
Pg. 347
Pg. 352
Pg. 357
Pg. 361
• 365
Pg. 372
Pg. 377
Pg. 381
Pg. 384
Pg. 398

CENT 80-247-M
LAKE 80-387

Pg. 402
Pg. 407

Commission Decisions

.FEBRUARY
The following cases were Directed for Review during the month of February:
Secretary of Labor, MSHA v. A. H. Smith Stone, Docket No. VA 81-51-M.
Koutras, December 30, 1981)

(Judge

Secretary of Labor, MSHA v. Roy Glenn, Employed by Climax Molybdenum Co.,
Docket No. WEST 80-158-M. (Judge Morris, January 5, 1982)
Consolidation Coal Company v. Secretary of Labor, MSHA, Docket No. PENN 81-106-R.
(Judge Melick, January 18, 1982)
No cases were filed in which Review was Denied.

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

February 4, 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. VA 80-84·

EASTOVER MINING COMPANY
DECISION
This case arises under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et seq. (Supp. III 1979). The withdrawal order
issued in this case, Order 0682886, charges a violation of 30 C.F.R.
§ 75.507.
This standard mirrors section 305(d) of the Mine Act which
reads:
Except where permissible power connection units
are used, all power-connection points outby
the last open crosscut shall be in intake air.
30 U.S.C. § 865(d). At the hearing before the Administrative Law Judge,
the parties stipulated:
(6) The Pump control box, which is the subject
of Order No. 0682886, was located in the last·
open crosscut of the Right Section, which is
a return airway.
(7) The subject pump control box did not
have permissible power connection points at
the time the subject order was issued.
The Administrative Law Judge found a violation and ordered payment
of penalty. Although the judge found that the pump control box had not
been energized, he reasoned that "whether or not the pump control box
was ever energized is irrelevant to a determination of whether the
regulation was violated." 2 FMSHRC at 3676.
We agree with the judgeis conclusion that a violation was established. We do not, however, agree with his'broad construction of the
regulation in this case. The judge's. construction of section 75.507
would lead to the result that a violation of section 75.507 always
occurs whenever nonpermissible power-connection points are located in
return air regardless of the circumstances.
The purpose of this regulation is to prevent methane gas explosions.
In the presence of methane gas, a source of ignition, such as arcing
from power connections, can cause an explosion. The arcing of power

123
82-2-1

connection points, however, is only possible if equipment is energized.
Thus, the hazard the regulation is designed to prevent is present only
when equipment is energized or can be energized. However, merely
finding a power-connection point in return air does not necessarily
absolve the operator simply because it is non-energized. In such cases,
a violation may occur if the equipment has been, is about to be, could
be, or habitually was, operated in return air. Cf. Solar Fuel Co., 3
FMSHRC 1384, 1385-86 (1981).
We now apply the preceding principles to the facts of this case,
based on the record as developed below. There is no question that the
pump control box was not energized when the inspector issued the order.
The foreman who placed the equipment in the return air during the shift
prior to the one during which the inspection occurred testified that
there was not enough cable to connect the pump to the power center. He
also testified that he was familiar with the regulation and would not
have left the control box in the return air if it were energized.
In this case it is claimed that the unit was not in fact located in
the return air but was simply placed there temporarily until it could be
moved to intake air. In other words, it is contended that the location
was merely an interrupted transit to another position where it would be
located as required by the regulation.
Nevertheless, the record does not contain a satisfactory explanation of why the control box was left in the return air. Nor has
Eastover completely dispelled our concern that the only reason the pump
control box was not energized in return air was because the connecting
cable was too short--a "problem" which unfortunately suggests an original
intent to energize in return air and a possible intent to "remedy" the
situation by means other than moving the control box into intake air.
We will not, however, indulge in speculative hypotheses. The record
before us does not ~llow us to say with assurance that Eastover clearly
showed that the equipment could not or would not have been energized in
return air" Our concern is underscored by the undisputed facts that the
mine had a history of methane liberation (the major danger in the event
of arcing) and ol to ,2 volume percent of methane was found at the
working place when the order was issued.
For the foregoing reasons, we affirm the judge's conclusion that
the standard
was violated, on the b~~~ z;·~

Rosemary M. Collyer,

~airman

A. E. Lawson, Commissioner

124

Distribution
Karl S. Forester, Esq.
Forester, Forester, Buttermore & Turner, P.S.C.
P.O. Box 935
Harlan, Kentucky 40831
Ann Rosenthal, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

125

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

February 5, 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
on behalf of MICHAEL J.
DUNMIRE and JAMES ESTLE

Docket Nos. WEST 80-313-D
WEST 80-367-D

v.
NORTHERN COAL COMPANY

DECISION

This discrimination case requires us to define further the scope of
the right to refuse work under the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et~· (Supp. III 1979). The case also raises
questions concerning appropriate remedies for miners who have suffered
discrimination. The administrative law judge concluded that Northern
Coal Company discriminatorily discharged two miners, in violation of
section lOS(c)(l) of the Mine Act, for engaging in a protected refusal
to work. The judge assessed civil· penalties and awarded backpay and
other relief. 1/ For the reasons that follow, we affirm the judge's
decision. ]:_/ I.

Many of the judge's essential factual findings are undisputed.
The swing shift crew at Northern's Rienau No. 2 underground coal
mine near Meeker, Colorado, consisted of six miners, including shift
foreman Michael Morgan and the alleged discriminatees, Michael Dunmire
and James Estle.· Estle operated the contiQuous miner, which mines the
coal. Dunmire worked in support of Estle as a "miner's helper" responsible for setting support timbers and shoveling the ribs.
1/
The judge's decision is reported at 3 FMSHRC 1331 (1981).
2/
Former Commissioner Nease also voted to affirm, but resigned from
the Commission before the decision was ready for signature. Chairman
Collyer has taken no part in the consideration or decision of this case
because of her prior association with Sherman and Howard, counsel for
Northern Coal Company, at the time this case was tried.

126

82-2-2.

During the period from approximately December 1979 to March 1980,
Northern was mining in the northeast main entries of the Rienau mine,
an area referred to as "the slopes.tt ]_/ Although, as discussed in
section II below, the witnesses varied somewhat in their specific
descriptions of roof (or "top") conditions in the slopes during the
December-March period, the record amply supports the judge's finding (3
FMSHRC at 1333, 1336) that, in general, the roof was bad. Pieces of
coal and rock of various sizes frequently fell from the roof during this
period. The ribs were also sloughing.
On the evening of Wednesday, February 27, 1980, the day before the
key events in this case, the swing shift crew was working in the No. 1
of the slopes. Material was falling from the roof and ribs, dust
generated by operation of the continuous miner had reduced visibility to
almost nothing, and ventilation was bad. We affirm the judge 1 s finding
that Estle became concerned about the bad air and the possibility of
injury from a roof fall, and suggested to Foreman Morgan that they stop
mining until the roof could be crossbarred and additional air found. 3
FMSHRC at 1333; Tr, 85-7, As discussed in the
note, the
record also shows that Morgan did not respond to Estle and that Dunmire
also complained about the roof and air but was told by Morgan to keep
working. !!_/ Mining continued and no member of the crew refused to work,
The area was called the slopes because the coal seam there sloped
side to side and also pitched downhill as entries were advanced,
!ii We deem it necessary to clarify the record concerning the events of
February 27 because it appears that some confusion has arisen. In
finding that Estle complained to Morgan on February 27, the judge cited,
in part, to Tr. 73. That portion of the transcript, however, is part of
Estle's testimony about a series of different safety complaints that
occurred earlier. Those complaints culminated in an incident in which
both Estle and Dunmire successively complained to Morgan about working
under crumbling roof, and Morgan agreed to stop the mining only after
some roof material fell on him as well. Tr. 73-5. Morgan's testimony
corroborates Estle's account. Tr.·273-4. In addition, the evidence
establishes that on Monday, February 25, the start of the work week,
Morgan allowed Dunmire to stop shoveling ribs because of bad rib and
roof conditions. Tr. 160, 242, 275. Concerning the events of February
27, Estle testified that Morgan did not respond to his complaint (Tr.
86-7), and Dunmire testified that he too complained about the roof and
air but was told by Morgan to keep working. Tr. 158-9, 172. On crossexamination, Morgan conceded that he did not remember if Estle and
Dunmire had complained on February 27. Tr. 275.
In li~ht of the foregoing, we believe that at some time in advance
of February 27, Morgan agreed to stop mining, and on February 25, allowed
Dunmire to stop shoveling ribs, on both occasions due to dangerous
conditions. Because Estle and Dunmire were treated by the judge as
credible witnesses and because their believable testimony is mutually
corroborative and not contradicted by Morgan, we further conclude that
Dunmire (as well as Estle) complained to Morgan on February 27 and that
Morgan refused to act on the miners' complaints. Finally, Northern's
assertion in its brief and at oral argument (Br. 12, 16, 19; Transcript
of Oral Argument ("Tr. Arg. 11 ) 5, 8) that Morgan allowed Dunmire to stop
shoveling the ribs on February 27 is not borne out by the record cited
(Footnote continued)

12?

Over the previous several months, Estle and Dunmire had complained on a
number of occasions to Morgan and other Northern supervisors about bad
roof and the dangers of working under unsupported roof. ;!_/
Shortly before the start of the Thursday, February 28 swing shift,
Estle and Dunmire were separately informed by Charles Daniels, the
general mine foreman, that they were being transferred from the Morgan
crew--Estle possibly to electrical work and Dunmire to the non-production graveyard shift. Daniels told Estle that the decision had been
made "higher up" and for the reasons, among other things, that management believed the swing shift crew was too "close-knit" and was not
keeping up with its safety duties for roof and ventilation control" 2
FMSHRC at 1333; Tr. 90-3, 218-20" At the hearing~ Daniels testified
that Morgan had not been meeting his supervisory responsibilities in
these safety areas" 3 FMSHRC at 1333; Tr. 218-20 9 2380 Both Estle and
Dunmire were upset and angry over the transfer (Tro 92, 170), and
testified that they thought the reasons for the actions were their own
safety complaints. Tro 92-3 9 160-lo
After mee~ing with Daniels, Estle and Dunmire went inLo the slopes
area of the mine to begin working on the February 28 swing shift. After
completing some breakthrough work in the.No. 1 entry (where the swing
shift crew had been working the night before), the Feburary 28 day shift
crew had moved into the adjacent No. 2 entry and driven it in another 60
feet or so before their shift ended" The Noo l and 2 entries were
parallel~ about 60 feet apart, and connected by crosscuts.
3 FMSHRC at:
1338; Tr. 187, 262-4, 309-10; Exh. P-3 (left side of map, area labelled
11
Northeast Mains" (mining entries numbered from left to right)).
In the mine, immediately prior to beginning his shift, Estle
talked with Rod Shaw, the continuous miner operator from the previous
shift. Estle asked Shaw about the roof, and Shaw said it was "just as
bad" as last night arid was "blowing out"" 6/ Shaw indicated--and Estle
understood, that he was referring to the roof in the No. 2 entry where
the day shift crew had just been working. 3 FMSHRC at 1333; Tr. 94-5.
footnote 4/ continued
above (Tr-:- 158-9, 160, 172, 242, 275), which includes testimony from the
two Northern supervisors involved. Dunmire emphatically testified that
Morgan ignored his complaint on February 27. Tr. 158-9, 172. Dunmire's
comment at Tr. 160 (relied on by Northern) that he was permitted to stop
shoveling ribs "the night before" his discharge on February 28 appears
to have been a loose reference to Monday, February 25; in his next
answer he also referred to the date in question as "the first night 11 - an apparent reference to the start of the work week. In any event, the
testimony bf Morgan and Daniels clearly dates this incident February 25.
Tr. 242, 275.
.
:J../ As the judge correctly found, Dunmire had complained previously on
a number of occasions about safety problems. 3 FMSHRC at 1333, 1335;
Tr. 69-70, 148-9, 151-4, 275-6. Northern states that Dunmire had raised
only one other complaint. Br. 16. In the portion of transcript Northern
relies on (Tr. 158-9), we read Dunmire's answer as a narrow statement
that he had only once previously complained while underground to a
Northern supervisor other than Morgan. There is no question that Estle
had complained previously on a number of occasions.
&_I
"Blowing out" refers to chunks of coal or rock flying out under
pressure from roof or rib. Tr. 82-3.

128

Estle then went over to the conveyor belt feeder (called "the Stamler"),
where the swing shift crew, including Morgan, were gathered. The
Stamler was located some distance from the face where the mining was to
take place.
Estle told the crew that he had talked with Shaw and that roof
conditions were bad--as bad as they had been the night before. There
was no response, and Morgan directed the crew to start work. Dunmire
then said that he would not work as the miner's helper, but would be
willing to shovel the conveyor's tail piece. Morgan replied that he
lacked experienced employees to ,do the helper's work, and that Dunmire
would have to be the helper. Morgan added that i f Dunmire·did not want
to do the helper's work, Dunmire knew what he could do. Estle jokingly
interjected the explanation that Dunmire could get his bucket and go
home. Morgan indicated that Estle was correct, and Dunmire left the
work site. Estle told the crew that they should all leave with Dunmire.
Morgan responded that if Estle went out, he would "be cutting [his] own
throat." 3 FMSHRC at 1333, 1337 n. 3; Tr. 261. 7/ No one left, Estle 0
who had a chronic lower back problem, told Morgan he was sick and then
left the work site. ~/
The evidence shows that when Estle and Dunmire arrived on the
surface several minutes later, they stopped off in the mine office where
Dunmire separately asked Daniels, the general mine foreman, and Robert
Pobirk, the mine superintendent, if either wanted to talk with him"
Each responded that he did not. Tr. 100, 164, 221-2, 285-6. Daniels
testified that although he "assumed [Dunmire had] quit," he did "not
want to say anything" to Dunmire because he felt "it was no use talking
to him or having an argument with him. 11 Tr. 222. !ii Estle and Dunmire
then went to the showers.

II

Morgan first testified that he and Roy Petree, another member of
the crew, made the "throat-cutting!' remark, and, when asked to clarify
his answer, then attributed the comment to Petree alone. Tr. 261. The
judge credited Morgan's initial testimonial version that he himself had
made such a remark. · 3 FMSHRC at 1337 n. 3. At oral argument, Northern
challenged this finding. The finding is a credibility resolution that
seems to us based on the judge's observation of Morgan's demeanor while
testifying. We will not ordinarily overturn such resolutions by the
trial judge who observes the witnesses, and we affirm this one.
~/
Estle testified that "regardless" of the roof conditions, he probably would have left that day anyway due to his back problem. 3 FMSHRC
at 1334; Trr. 99. Estle saw a doctor the following day.
9/
Pobirk may not have realized exactly what was going on when Dunmire
first spoke with him. Tr. 285. Pobirk testified, however, that after
Dunmire left, Daniels "made [him] aware that [Estle and Dunmire] had
walked out •••• n Tr. 285-6.

129

After cleaning up, Estle and Dunmire returned to the office.
Pobirk told them that since they had walked off the job, they had quit.
3 FMSHRC at 1334; Tr. 100, 164-5, 222-4, 286, 291. Dunmire replied that
he was not quitting or refusing to work, but was only refusing to be the
miner's helper. Tr. 164. Dunmire also told Pobirk that he did not
think the roof was safe and wanted the miner shut down while he set
timbers, established ventilation, and shoveled the ribs. Tr. 164-5,
222-4, 291. Dunmire and Pobirk argued, and finally Pobirk stated that
Dunmire was terminated. Tr. 165. 10/ Estle told Pobirk that he was
sick and was going to the doctor. Tr. 102. Estle and Dunmire left the
mine. On the following Monday, March 3, when Estle attempted to
his medical excuse to Troy Wills, Northern's area superintendant, Wills
told him that Northern considered Estle's walk out to have been a quit.
About three weeks later, Estle returned to the mine and told Wills
that he would drop the discrimination complaint that he had filed with
MSHA if Northern would rehire him. Wills responded that Estle could not
be rehired because if anyone else wanted to walk out, they could do it
and get away with it.
II.

We analyze first the central issue of whether Estle and Dunmire
were unlawfully discharged for engaging in a protected refusal to work.
We recognized in general terms the right to refuse work under section
105(c)(l) of the Mine Act in Fasula v, Consolidation Coal Co., 2 FMSHRC
2786 (1980), rev'd ,££other grounds sub nom. Consolidation Coal Co. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981), and further developed the scope
of the right in Robinette v. United Castle Coal Co., 3 FMSHRC 803
(1981). We preface our analysis by briefly summarizing this area of
law, particularly in light of the Third Circuit's Consolidation Coal
decision. 11/
Under Pasula and Robinette, a miner may refuse to work if he has a
good faith, reasonable belief that a hazardous condition exists. A
miner's refusal may extend to "affirmative self-help", such as shutt
off or adjusting equipment, so long as the self help is reasonable as
well. Fasula, 2 FMSHRC at 2789-94; Robinette, 3 FMSHRC at 807-17. As
we have previously indicated (Phelps Dodge Corp., 3 FMSHRC 2508, 2508 n.
1 (1981)), the court of appeals reversed Fasula solely on evidentiary
grounds, holding that the miner in question had been discharged for
engaging in unprotected activity. Consolidation Coal, 663 F.2d at 121621. We do not think that the Third Circuit's Consolidation Coal decision
is inconsistent with our general holdings in Fasula and Robinette. On
the contrary, we read the court's opinion as a cautious approval of the
main outlines of the right to refuse work as developed in our decisions.
10/ Daniels and Pobirk denied that Fobirk told Dunmire that he was
fired, but the judge credited Dunmire's contrary account of the conversation (which Estle substantially corroborated (Tr. 100)), and we
affirm his resolution of this conflicting testimony.
In the decision under review, the judge did not discuss or apply
our Robinette decision. However, his analysis is consistent with
Robinette, and the parties have presented their arguments to us in light
of that decision. Accordingly, there is no need to remand for express
application of a Robinette analysis.

130

Certainly, if the court had thought that there was no right to
refuse work under the Mine Act, it would not have analyzed (as it did)
whether the miner was fired for unprotected activity for there could
have been no claim that he was fired for protected activity. The court
prefaced its evidentiary analysis by stating that it "found it unnecessary to define the perimeters of [the] right [to refuse work] under the
Mine Act.'~ 663 F.2d at 1216 (emphasis added). The court's discussion
of the right, in the detailed footnote Id. at 1216-17) that accompanies
the passage just quoted, makes clear that it agreed there was such a
right in general, but did not deem it necessary to define the specifics
of the right:
Thus, although we need not address the extent of such a right,
the statutory scheme, in conjunction with the legislative history
of the 1977 Mine Act, supports a right to refuse work in the event
that the miner possesses a reasonable, good faith belief that
specific working conditions or practices threaten his safety or
health •
• at 1217 n. 6.
We note that the courtvs discussion of the right accords with
Robinette's holding that a work refusal must be premised on a good
faith, reasonable belief in a hazard--the chief areas of contention in
the present case. Indeed, in approving our refusal in
to defer
to an arbitral decision regarding the miner's discharge
FMSHRC at
2794-96), the court described reasonable~ good faith belief in much the
same manner as our Robinette decision (3 FMSHRC at 809-12):
In this case, the considerations underlying the standards of
gravity of injury in the Wage Agreement [between the operator and
miners' representative] and in the statute are different. The Wage
Agreement requires the arbitrator to determine whether the hazard
was abnormal and whether there was inuninent danger likely to cause
death or ser~ous physical harm. The underlying concern of the Mine
Act, however, is not only the question of how dangerous the condition is, but also the general policy of anti-retaliation (against
the employee by the employ~r). Because this is a major concern of
the Mine Act, it requires proof merely that the miner reasonably
believed that he confronted a threat to his safety or health.
Those who honestly believe that they are encountering a danger to
their health are thereby assured protection from retaliation by the
employer even if the evidence ultimately shows that the conditions
were not as serious or as hazardous as believed. Questions of
innninence and degree of injury bear more directly on the sincerity
and reasonableness of the miner 1 s belief.
663 F.2d at 1219. 12/ We now apply the general principles controlling
the right to refus-;-work to the issues in this case.
12/ In Pasula, we concluded that the miner was fired primarily because
of his refusal to work. Although we found that his discharge was also
partly motivated by his conduct in shutting down the equipment about
which he had complained (conduct that we emphasized was unprotected),
we found that the evidence failed to show that the operator would have
(Footnote continued)

13l

The judge concluded that Estle and Dunmire engaged in a protected
refusal to work on February 28 and that their terminations over the
incident therefore violated section 105(c)(l) of the Mine Act. On
review, Northern raises three major objections to the judge's conclusion: (1) that a miner must ordinarily state a safety or health
complaint in order to bring a work refusal within the protection of the
Mine Act, and that Estle and Dunmire failed to articulate such complaints; (2) that the work refusal of Estle and Dunmire was per se
unreasonable because they failed to examine the work area that was the
subject of their refusal; and (3) that in any event the mining conditions in question were not unsafe. Although Northern conceded at oral
argument that Estle and Dunmire "probably" had a "subjective good faith
belief of (a] danger" (Tr. Arg. 14), a number of the arguments in
Northern 1 s brief touch on good faith issues, and we therefore briefly
address that subject as well.
We note at the outset that this is not a
motivation" discrimination case where the evidence shows that the operator's adverse
action was motivated both by the miner 1 s protected activity and also by
his separate unprotected conduct. Northern states that it terminated
Estle and Dunmire solely for having "walked off their jobs," an action
Northern "took as a quit on their part." Br. 3. Therefore, the only
fn.
cont d.
terminated him in any event for this latter conduct alone. Under the
discrimination analysis we developed in Pasula, these findings entitled
the miner to relief. 2 FMSHRC at 2796-801. The court disagreed with
our evidentiary determinations, and found that the "real" reason the
miner was terminated was for shutting down the equipment and "refus[ing]
to permit anyone else to operate it." 663 F.2d at 1219-21. The court
concluded that this conduct was beyond the pale of the right to refuse
work, and that the miner was therefore lawfully discharged for the
conduct:
There is no right in the- [Mine] Act to shut down an entire
shift's work. An individual is protected by the Act from
retaliation for asserting and acting on his real fear that conditions are unsafe or hazardous to his health; but no one has the
right to stop others from proceeding to work if they so wish.

Id. at 1219.
We do not regard the court's disposition of the discrimination
issue as a holding that a miner may never engage in affirmative self
help such,as shutting off or adjusting equipment. The court obviously
believed that the miner's actions were unreasonable and excessive.
Robinette stressed that any affirmative seif help must be reasonable. 3
FJ:-1SHRC at 812. Given the court's own emphasis on reasonableness, we
doubt that it would have condemned a miner's reasonable action in, for
example, temporarily shutting down a beltline to prevent a fire. Rather,
we think that the court's opinion is entirely consistent with a case-bycase analysis of work refusals, including those that involve affirmative
self-help, focused on the reasonableness of the miner's beliefs and
actions.

132

conduct in issue is the walk off. If the walk off was a protected
refusal to work, the termination over it was unlawful; if it was not
protected, the termination was legal. We turn first to Northern's
threshold argument that miners must state a complaint in order to
trigger a protected refusal to work.
Statement of a health or safety complaint
We conclude that substantial evidence supports the judge's finding
that safety complaints were in fact made, but we find it necessary to
elucidate his treatment of the issue. Because the evidence surrounding
these complaints is controverted and because the subject is important,
we also address Northern's general argument that such complaints must be
made. 13/ The judge concluded that a statement of a complaint is a
prerequisite to a valid work refusal (3 FMSHRC at 1335) and, in his
brief to us, the Secretary concurs. Br. 16.
A complaint requirement accords with Rob
e 1 s emphasis that a
work refusal must be premised on a good faith, reasonable belief in a
hazard, and is also consistent with sound safety practices and common
sense. As we noted in both
and Robinette, Congress intended to
extend the right to refuse work under the Mine Act to "workers acting in
good faith .•. as responsible human beings." 14/ In our view, it would
not be the conduct of a "responsible human being" to walk off the job
and, for no good reason, fail to inform anyone of a possible hazard that
could imperil safety or health. We agree with Northern that stating
such a complaint may permit the operator to correct the condition in a
timely fashion and may protect others in the mine from harm. On the
other hand, we made clear in Robinette that we will not adopt complicated work refusal doctrines that may be difficult to apply in practice
or that could chill the right to refuse work. 3 FMSHRC at 810 n. 12.
Balancing all the foregoing considerations, we therefore adopt the
following requirement.
Where reasonably possible, 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.
"Reasonable possibility" may be lacking where, for example, a representative of the operator is not present, or exigent circumstances require
swift reaction. We also have used the word, "ordinarily" in our formulation to indicate that even where such communication is reasonably
possible, unusual circumstances--such as futility--may excuse a failure
to communicate. If possible, the communication should ordinarily be
made before the work refusal, but, depending on circumstances, may also
be made reasonably soon after the refusal.
In Pasula, we solicited the "considered views" of the Secretary,
miners, miners' representatives, and operators on "how [the right to
refuse work] should be shaped." 2 FMSHRC at 2793. We thank Northern's
counsel for their helpful discussion of the complaint issue in their
brief and at oral argument.
1!!._/ Pasula, 2 FMSHRC at 2792, and Robinette, 3 FMSHRC at 809 & n. 11,
quoting Senate floor debate on S. 717, June 21, 1977, reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.
2d Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 1089 (1978)("Leg. Hist.").

133

Not every miner involved in a work refusal need make (or attempt to
make) such a complaint. A communication from one may be deemed to be on
behalf of all concerned, even if not announced in such terms. As the
judge correctly observed (3 FMSHRC at 1337), the Mine Act secures the
right to concerted protected activity: section 105(c)(l) provides that a
miner is protected in the "exercise ••• on behalf of himself or others
of any statutory right afforded by this Act" (emphasis added).
We stress that our purpose is promoting safety, and-we will evaluate
communication issues in a common sense, not legalistic, manner. Simple,
brief communication will suffice, and the "communication" can involve
speech, action, gesture, or tying in with others' comments. We are
confident that the vast majority of miners are responsible and will
communicate such concerns in any event. In short, we believe that the
practical effect of this .rule will be to assist in weeding out work
refusals infected by bad faith--conduct that enjoys no protection under
the Mine Act. We now apply these standards to the facts of this
case. 15/
We conclude that the evidence summarized in the first part of this
decision shows that Estle and Dunmire stated safety complaints both at
the Stamler, before their work refusals, .and at the mine office after
they had left the work area. At the Stamler, Estle informed the entire
swing shift crew, including Morgan, that he had just talked with a
continuous miner operator from the day shift and had been informed that
roof conditions were bad--as bad as they had been during the previous
night's swing shift, In our opinion, the plain meaning of these words
would convey to any reasonable miner--if not any reasonable person~ a
complaint concerning the roof under which the crew was about to work.
15/ The judge, Northern, and the Secretary all cited our decision in
Deskins Branch Coal Co., 2 FMSHRC 2803 (1980), as support for the proposition that a miner must state a safety or health complaint in
connection with a work refusal. For purposes of clarity, we note that
Deskins does not mandate the result reached in the present case.
Deskins arose under the 1969 Coal Act, and involved only the right under
section llO(b) of that Act to "notif[y] the Secretary or his authorized
representative of any alleged violation or danger." In Deskins we
concluded that stating a safety complaint to an appropriate individual
(whether a representative of the operator or Secretary), was the essence
of the "right to notify," and that failure to make such a communication
would remove the miner from the protection of section llO(b) of the 1969
Coal Act. 2 FMSHRC at 2803-4. What was required for a valid notification of the Secretary under the 1969 Coal Act does not necessarily
determine what is required for a valid work refusal under the Mine Act.
While there are similarities between section llO(b) of the 1969 Coal Act
and section 105(c)(l) of the Mine Act, the latter section expanded the
list of protected activities and was intended by Congress to be interpreted "expansively." S. Rep. No. 95-181, 95th Cong., 1st Sess. 36
(1977), reprinted in Leg. Hist. 624. Accordingly, 1969 Coal Act
precedent regarding protected activity, although often helpful, must be
applied carefully.

134

In this regard, Estle's fairly extensive history of prior complaints
about bad roof conditions, most particularly his similar complaint the
night before, must have enabled Morgan to grasp his meaning. ~/
While we agree with the judge that under section 105(c)(l), Estle's
statement (3 FMSHRC at 1337) may be deemed a concerted complaint on
behalf of the rest of the crew, including Dunmire, we also conclude that
Dunmire himself complained at the Stamler. Only a minute or so after
Estle mentioned the bad roof, Dunmire told Morgan he would not work as
the miner's helper, although he was willing to perform other tasks. We
are satisfied that this was a readily understandable followup to Estle's
statement. Dunmire meant that since the roof was bad, he preferred not
to work under it. We agree with the judge (3 FMSHRC at 1335) that
Morgan must have understood Dunmire, especi~:tlly since Dunmire had voiced
the same concern to him the night before, as well as on other occasions.
We think that the judge's statement that Dunmire made no complaint to
Morgan (Id.) should not be read literally or in isolation. It seems to
us that the judge merely meant that Dunmire'1 s words, while i f judged
standing alone might not appear to be a complaint, constitute an understandable complaint when examined in cont·ext--including the normal flow
of conversation.
There is no dispute that not long after leaving the Stamler,
Dunmire (with whom Estle was standing) made it quite clear to Pobirk
that they were complaining over roof conditions. Even were we to share
Northern 1 s view of the evidence regarding the events at the Stamler 0
this conversation would qualify under the standards announced in this
decision as a complaint by Dunmire (on behalf of himself and Estle) made
reasonably close in time to a work refusal.
In sum, we conclude that, where reasonably possible, miners should
ordinarily communicate their safety or health complaints in connection
with a work refusal, and that the evidence shows that Estle and Dunmire
did so.
Good faith
Northern's concession at oral argument that Estle and Dunmire
"probably" had a good faith belief in a danger undercuts the suggestions
in Northern's brief that they lacked good faith belief. When the
judge's findings are viewed as a whole, it is clear that he found Estle
and Dunmire credible witnesses who had acted out of a good faith fear of
dangerous conditions. Although we agree with Northern that the two
miners were also unhappy about their imminent transfer, we do not regard
that as sufficient evidence that they acted in bad faith. Their respective
histories of concern over roof conditions persuade us of their sincerity
on February 28.

];ii

We reject Northern's argument that prior complaints cannot be
examined in order to evaluate a miner's communications. Such history
may shed light both on what the miner meant and on what a reasonable
listener would have understood him to mean.

135

We also find misplaced Northern's specific attacks on Estle's
motivations for leaving the mine. We agree with the judge (3 FMSHRC at
1337 & n. 2) that Estle testified (Tr. 99, 107, 123) that he had left
the mine partly because of safety concerns and partly because of his
back problem, although he mentioned only the back problem when he told
Morgan he was leaving. As discussed above (pp. 2-3 & n. 4 above),
Morgan had ignored Estle's safety complaint just the night before, and
we regard as credible Estle's explanation (Tr. 126) that he did not wish
to pursue a safety complaint any further with Morgan. Estle's reluctance
is perhaps even more understandable in light of Morgan's immediately
preceding admonition that Estle would be "cutting his throat" i f he left
in support of Dunmire. Of course, as the judge and we have found, and
as Estle himself also explained (Tr. ·123), Estle had articulated a
general safety complaint only minutes before leaving. We deem that
complaint sufficient indication of his good faith reason for leaving.
Reasonable belief
There is no dispute that before leaving, Estle and Dunmire did not
personally examine the work area that was the subject of their concern.
The judge found that "[i]t [was] not necessary to make such an examination" where the miners otherwise possessed a reasonable basis for
belief in a danger, 3 FMSHRC at 1336. Northern urges us to adopt a per
~ rule that failure to examine ordinarily removes a work refusal from
the Mine Act's protection. Br. 22-4. We do not regard a
se
approach as appropriate in this area, but agree that the matter of
personal examination may be relevant to a miner's good faith, reasonable
belief. We think that personal examination should be one of the many
possible surrounding circumstances that should be considered on a caseby-case basis in evaluating the validity of work refusals. Certainly,
we decline adopting any approach that would require miners to expose
themselves directly to hazards, because avoidance of injury is the very
reason the right to refuse work exists. For purposes of resolving this
case, we re-emphasize our rule that a miner's belief must be reasonable~
and hold that miners may rely on such indications of conditions as
seemingly trustworthy reports from others and earlier conditions in the
mine.

17/ Since we agree with the judge that Estle was partially motivated by
safety concerns, we view Estle's additional reliance on his back problem
as largely 'irrelevant. Northern introduced no evidence rebutting his
medical excuse, and nothing about the right ,to refuse work precludes a
miner from also relying on non-safety related reasons for his actions,
particularly where, as here, the miner is seemingly threatened with
termination if he acts on safety related grounds alone. Finally,
although.Northern does correctly point out that at one point in crossexamination Estle testified he left because of his "anger" and "tailbone" (Tr. 126), the rest of his testimony makes quite clear, and we
believe, that his chief reasons for acting were his safety concerns and
his back problem.

136

Estle and Dunmire based their February 28 walk out on an apparently
believable report from a miner just finishing work that roof conditions
where the swing shift was about to work were bad--as bad as they had
been on February 27. Both Estle and Dunmire had be~n concerned over the
roof on February 27, and had complained to no effect. They had been
observing, and complaining about, bad roof conditions in the slopes for
the previous several months. We agree with the judge (3 FMSHRC at 1336)
that the combination of a first-hand report from another miner and their
own immediately preceding first-hand experience supplied an acceptable
basis for a reasonable belief in hazardous conditions. Thus, we cannot
agree that this is a case where a failure to examine reveals either bad
faith or lack of reasonable belief. 18/
Moreover, we are satisfied, as was the judge, that the minersv
belief in dangerous conditions was quite reasonable" There is a great
deal of credible evidence that roof and rib conditions in the slopes had
been bad for some time, with considerable falling, flaking~ and
"blowing out" of coal and rock, and were bad on February 27 and 28. We
affirm and incorporate by reference the j~dge s thorough analysis of
this evidence (3 FMSHRC at 1333, 1336, 1338), and conunent only on a few
salient aspects of the evidence.
11

11

1

While there were differences among the witness' description of
mining conditions (and while we suspect the truth lies somewhere between
the most extreme accounts), virtually all the witnesses agreed that
there were roof fall and rib sloughing problems in the slopes" For
example, as the judge pointed out, Northern 1 s own witness Daniels, the
general mine foreman, described the roof in the No. 2 entry where the
swing shift was to work on February 28 as only "fair" (Tr. 223). At
another point, Daniels conceded that the slopes top was, at times, "bad"
(Tr. 241), and finally stated that the Rienau mine only "got out of .•.
bad [roof] condition around the middle of March" (Tr. 250), some weeks
after Estle 1 s and Dunmire's work refusal. As we found above (pp. 2-3 &
n. 4), Morgan, not long before the crucial events in this case, had.also
excused Estle and Dunmire from work when roof and rib conditions were
particularly dangerous. Most tellingly, Gene Moore, a miner on the day

18/ In its brief, Northern too narrowly interprets our use of the word~
"perception" in our discussion.of reasonable belief in Robinette. Br.
21, 23. In Robinette, we used ."perception" in its general sense as a
synonym for belief, not in its more narrow sense as referring to a
direct sensory impression. 3 FMSHRC at 812. We did not mean to suggest
that a min,er must necessarily become aware of an apparent danger through
his own sensory impressions; we meant only _that his belief of a danger
must be reasonable, regardless of how he arrived at his belief. Of
course, often the miner's own direct observations will supply the basis
of his belief in a hazard. Our intent is to suggest that, just as is
the case in daily life, beliefs can rest on other sources of information
as well.

137

shift ·provi-Oed ·a ~detailed-; first-hand aC:cotl!lt of blowing roof and
sloughing_.:r;i.bs on ·February 28 ;,:., the No. 2 entry where Estle and Dunmire
were scheduled to work. 3 FMSHRC at 1338; Tr. 187-90. 19/ As we pointed
out in Robinette (3 FMSHRC at 812), a miner's reasonabl;-belief can be
established through the kind of corroborative evidence present here.
Thus, we agree with the judge that Estle and Dunmire had a good
faith reasonable belief in a roof hazard on February 28. While perhaps
Northern demonstrates that other reasonable reactions were possible on
February 28, we stress that, because reasonable minds can differ, our
Robinette test requires only~ reasonable belief. 3 FMSHRC. at 811-12 &
n. 15. We also think that their reasonable belief is reflected by the
reasonableness of certain aspects of Dunmire's conduct on February 28,
Dunmire offered to Morgan to perfonn alternative work, As noted above
(p. 4), Dunmire attempted to talk with Daniels and Pobirk when he arrived
at the surface but was initially rebuffed. Dunmire later informed
Pobirk that he was not quitting, but only refus
to work under bad
roof, and made clear he would work if the roof problems were resolved,
The evidence shows that Estle was acting in support of his co-worker,
This is not the behavior of individuals acting on bad faith or reckless
impulse.
In short, we conclude that Estle and Dunmire engaged in a protected
work refusaL Because they were fired for this work refusal, the terminations violated section 105(c)(l) of the Mine Act. We now turn to the
remaining issues in the case.
III.

There are three remaining issues: (1) whether the judge erred by
refusing to consolidate an immediate hearing on the merits with Dunmire's
temporary reinstatement hearing and whether the limited scope of the
temporary reinstatement hearing comported with due process requirements;
(2) whether the judge erroneously included vacation pay and hearing
expenses in the back pay award for Estle and Dunmire; and (3) whether
the judge erroneously calculated back pay on the basis of an incorrect
back pay period for Estle. Northern has not complained about the judge's
imposition of civil penalties, and therefore no penalty issue is before
us.

19/ Northern correctly observes that on February 28, the swing shift
crew worked in the No. 2 entry of the slopes, a different location from
the No. 1 entry where they had worked the previous night. Northern
argues that therefore Estle and Dunmire, absent examination, could not
have had a basis for a reasonable belief in, bad conditions in the new
work area. However, the two parallel entries were located in the same
general area of the slopes where roof and rib problems had been the
rule, not the exception. We would find more force to Northern's argument had the new entry been located in an entirely different area of the
mine. In any event, we affirm the judge's crediting of Moore's testimony
that in fact conditions were bad in the No. 2 entry.

138

In the proceedings below, Dunmire sought temporary reinstatement
pursuant to section 105(c)(2) of the Mine Act and our former Commission
Rule 44, 29 C.F.R. § 2700.44 (1981), which implemented that section. ];QI
Section 105
the Mine Act provides in relevant part:
Any miner
who believes that he has been
interfered with, or otherwise discriminated against by any person
in violation of [section lOS(c)] may, within 60 days after such
violation occurs, file a complaint with the Secretary
such
discrimination. Upon receipt of such complaint the Secretary shall
forward a copy of the complaint to the respondent and shall cause
such investigation to be made as he deems appropriate. Such
investigation shall commence within 15 days of the Secretary's
receipt of the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Corrnnission, on an
basis upon application of the Secretary, shall .order the
immediate reinstatement of the miner pending final order on the
complaint. If upon such investigation, the Secretary determines
that the provisions of this subsection have been violated, he shall
immediately file a complaint with the Commission, with service upon
the
violator and the miner ••• alleging such discrimination
or interference and propose an order granting appropriate relief,
The Commission shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United States Code, but
without regard to subsection (a)(3) of such section) and thereafter
shall issue an order, based upon findings of fact, affirming,
modifying, or vacating the Secretary's proposed order, or directing
other appropriate relief. Such order shall become final 30 days
after its issuance. The Commission shall have authority in such
proceedings to require a person committing a violation of this
subsection to take such affirmative action to abate the violation
as the Commission deems appropriate, including, but not limited to,
the rehiring or reinstatement of the miner to his former position
with back pay and interest.
Our former Rule 44 provided:
(a) Contents of application procedure: hearing. An application
for reinstatement shall state the Secretary's finding that the
complaint of discrimination, discharge or interference was not
frivolously brought and the basis for his finding. The application shall be immediately examined, and, unless it is determined
from the face of the application that the Secretary's finding was
arbitrarily or capriciously made, an order of temporary reinstatement shall be immediately issued. The order shall be effective
upon issuance. If the person against whom relief is sought requests
a hearing on the order, a Judge shall, within 5 days after the
request is filed, hold a hearing to determine whether the Secretary's
finding was arbitrarily or capriciously made. The Judge may then
dissolve, modify or continue the order.
(footnote cont'd)

139

On May 22, 1980, the Commission's chief judge, acting on the Secretary's
application for Dunmire's interim reinstatement pursuant to section
105(c)(2) and our Rule 44, issued an order temporarily reinstating
Dunmire. On May 30, 1980, Northern requested a hearing on the reinstatement order. The parties agreed to have the hearing held on June 6,
1980. The order directing the hearing indicated that the scope of the
hearing would be controlled by the terms of Rule 44(a). On June 5,
1980, Northern moved for consolidation of a hearing on the merits with
the hearing on the temporary reinstatement order, or in the alternative,
for expedition of the hearing on the merits.
The hearing on the temporary reinstatement order was held, as
scheduled, on June 6, before the same judge who decided this case on the
merits, and Northern renewed its consolidation/expedition motion. Tr.
8-9. The judge denied the request for immediate consolidation on the
grounds that at that time the issues had not been framed and the
Secretary's complaint on the merits had not been filed. Tr. 12. The
judge agreed, however, to expedite proceedings, and set the hearing on
the merits for July 24, 1981. Id. The judge also indicated that
although the merits of Dunmire 1 ~discrimination case were beyond the
scope of the temporary reinstatement hearing, evidence concerning the
factual bases relied upon by the Secretary in applying for Dunmire 1 s
reinstatement would be relevant. 3 FMSHRC at 1341; Tr. 18-22.
Objecting to the scope of the hearing, Northern waived its right to
proceed with it and requested that the parties "simply proceed" with the
expedited July 24 hearing on the merits. Tr. 22-3. The judge granted
Northern's request. Tr. 23. Northern indicated that it wished to
preserve its due process objections concerning the temporary reinstatement hearing procedure. Tr. 25. The hearing on the merits took place
as scheduled, and subsequent to the hearing, Dunmire voluntarily left
Northern's employ. Permanent reinstatement for Dunmire was therefore
neither sought nor ordered. 3 FMSHRC at 1341.

fn. '!:QI cont'd.

(b) Dissolution of order. If, following an order of reinstatement, the Secretary determines that the provisions of section
105(c)(l) have not been violated, the Judge shall be so notified
and shall enter an order dissolving the order of reinstatement. If
the Secretary fails to file a complaint within 90 days, the Judge
may issue an order to show cause why the order of reinstatement
should not be dissolved. An order dissolving the order of reinstatement shall not bar the filing of an action by the miner in his
own behalf under section 105(c)(3) of the Act and§ 2700.40 of
these rules.
As we explain below, we have determined that our former Rule 44 was
legally inadequate; and have replaced it with a new Interim Rule 44.

140

At about the time the parties filed their briefs with us, we
decided that our Rule 44 provided for temporary reinstatement hearings
that were too "narrow and restrictive" in scope, and therefore deprived
operators of the due process to which they were entitled. Kentucky
Carbon Corp., 3 FMSHRC 1707, 1711-12 (1981). We have since promulgated
a new Interim Rule 44 designed to cure the deficiencies of our former
procedure. 21/
While Northern has not abandoned its due process objections, we
conclude that our disposition of the discrimination question and the
combination of events summarized above have mooted these issues •. Pursuant to Kentucky Carbon, we vacate the order of temporary reinstatement
on the grounds that the hearing provided Northern was conducted under a
procedure we have deemed legally inadequate. However, as in Kentucky
Carbon (3 FMSHRC at 1712), we do not. remand.for any further proceedings
because there is no need or reason for continuing interim relief. In
the first place, we have determined that Dunmire was discriminatorily
discharged--a conclusion that means he was entitled to temporary
reinstatement. Furthermore, he has since ~eft Northern 1 s employ, and
thus his reinstatement is not before us. Our vacation of the temporary
reinstatement order makes it unnecessary to resolve Northernvs due
process arguments regarding consolidation and the proper scope of
hearings, and we reserve consideration of such issues to a case presenting a live controversy under our revised procedure.
21/ We have amended only subsection (a) of Rule 44. The new language
provides:
§ 2700.44 Temporary reinstatement proceedings.
(a) Contents of application; procedure; hearing.
An application for temporary reinstatement shall state the Secretary's finding that the miner's complaint of discrimination,
discharge or interference was not frivolously brought and shall be
accompanied by a copy of the miner's complaint, an affidavit
setting forth the Secretary's ·reasons for his finding, and proof of
service upon the operator. The application and accompanying
documents shall be examined upon an expedited basis, and, if it
appears that the Secretary's finding is supported by the application and accompanying documents, an order of temporary reinstatement shall be immediately issued. The order shall be
effective upon receipt or actual notice. If the person against
whom relief is sought requests a hearing on the order, a Judge
shall within 5 days after the request is filed, hold a hearing to
determine whether the miner's complaint of discrimination, discharge or interference was frivolously brought. The judge may then
dissolve, modify or continue the order.,
46 Fed. Reg. 39,137-38 (July 31, 1981).
22/ We note in passing that, despite our disposition of this issue, we
seriously doubt whether Northern preserved its right to complain on
discretionary review about the scope of the temporary reinstatement
hearing. As discussed above, Northern waived its right to proceed with
the hearing, thereby avoiding a concrete test of the hearing's adequacy.
We also think that the judge's commendable expedition of proceedings
supplied Northern with the essence of the relief it sought through
consolidation.

141

Back pay
Northern objects to the judge's inclusion of vacation pay and
hearing expenses in his back pay award for Estle and Dunmire. 3 FMSHRC
at 1342-43. Before analyzing these specific questions, we discuss
briefly the general subject of the Mine Act's remedies for discrimination.
Section 105(c)(2) of the Mine Act empowers the Commission to remedy
discrimination by "such affirmat_ive action to abate the violation as the
Commission deems appropriate, including, but not limited to, the rehiring
or reinstatement of the miner to his former position with back pay and
interest." As we recently held, this broad remedial charge was designed
not only to deter illegal retaliation but also to restore the employee,
as nearly as possible, to the situation he would have occupied but for
the discrimination. Kentucky Carbon Corp.;·4 FMSHRC
(No. KENT 80145-D, January 6, 1982), slip op. at 2.
As we also pointed out in Kentucky Carbon, the Mine Actvs provisions are modeled largely on section lO(c) of the National Labor
Relations Act, as amended, 29 U.S.C. § 160(c). Id., slip op. at 2 & n.
4. In applying that section's provision-for bac~pay awards, the National
Labor Relations Board and the courts have long treated back pay as a
term of art encompassing not only wages, but also any accompanying
fringe benefits, payments, or contributions constituting integral parts
of an employer's overall wage-benefit package. See, for example, NLRB
v. Strong, 393 U.S. 357, 358-60 & n. 4 (1968); NLRB v. Rice Lake Creamery
Co., 365 F.2d 888, 892 (D.C. Cir. 1966). In general, we believe that
the same approach to back pay applies under the Mine Act. We also are
of the view that so long as our remedial orders effectuate the purposes
of the Mine Act, our judges and we possess considerable discretion in
fashioning remedies appropriate to varied and diverse circumstances.
See Glenn Munsey v. Smitty Baker Coal Co., Inc., 2 FMSHRC 3463, 3464
(1980) (analogous approach with regard to relief under the 1969 Coal
Act). _gf. NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258, 263 (1969)(explaining the NLRB's discretionary powers under section lO(c) of the NLRA).
As the judge correctly determined (3 FMSHRC at 1343), the Mine Act's
legislative history removes any doubt on these points:
It is the Committee's intention that the Secretary propose,
and that the Commission require, all relief that is necessary to
make the complaining party whole and to remove the deleterious
effects of the discriminatory conduct including, but not limited to
reinstatement with full seniority rights, back-pay with interest,
and recompense for any special damages sustained as a result of the
discrimination. The specified relief is only illustrative. T~us,
for example, where appropriate, the CoIJU11ission should issue broad
cease and desist orders and include requirements for the posting of
notices by the operator.
S. Rep. No. 95-181, above, 37, reprinted in Leg. Hist. 625. In light of
the foregoing principles, we affirm the judge's back pay award of
vacation pay and hearing expenses.

142

Regarding vacation pay, it was stipulated below that Estle and
Dunmire had accrued a right under Northern's benefit package to take a
week's vacation with vacation pay. The judge reasoned that "vacation
pay, as part of the employment contract, accrues and has a monetary
value," and therefore included vacation pay amounts in each discriminatee's
back pay award. 3 FMSHRC at 1342. Northern argues that because its
policies prohibit employees from taking vacation pay in lieu of time off
and because the two miners were paid back pay for the days in issue, the
award constitutes a form of "double dipping." (Northern does not argue
that, as a general matter, vacation pay may not be part of a back pay
award).
Our concern and duty is to restore the discriminatees, as nearly as
we can, to the enjoyment of the wages and benefits they lost as a result
of their illegal terminations. We hold that, in general, vacation pay
may constitute part of a back pay award. The discriminatees in this
case had earned a right to both vacation time and vacation pay and while
we cannot turn back the clock to give them the lost vacation days, we
can. and do, assign a value to what they lost. The award of vacation
pay is intended to compensate them not only for the accrued vacation
pay, but also for the vacations that they lost. Hence, we do not regard
the award as a form of "double dipping," and we would also reject any
suggestion that time off following a discriminatory discharge may be
deemed the equivalent of a vacation. Within the framework of providing
just compensation, however, we endeavor to make our awards as reasonable as possible. We therefore modify the judge 1 s award to give Northern
the option, in the event Estle accepts (or has accepted) reinstatement,
either (1) to pay the compensatory vacation pay as ordered by the judge,
or (2) innnediately to off er Estle the opportunity to take his last
week's paid vacation after reinstatement (in addition to the paid vacation
time he otherwise accrues). Estle may accept either method of compensation. The second option would give Estle back his paid vacation and also
avoid concurrent payment of regular wages and vacation pay. Because
Dunmire has left Northern's employ, this additional option is unavailable
and Northern is directed to pay h~ the vacation pay ordered by the
judge; the same applies if Estle declines reinstatement or has also left
Northern's employ since reinstatement.
Regarding incidental, personal hearing expenses incurred by Estle
and Dunmire in connection with their attendance, Northern argues that
because section 105(c)(3) of the Mine Act expressly provides for hearing
expenses, 23/ while section 105(c)(2) does not mention the subject,
Congress must have intended that such expenses were outside the scope
of a section 105(c)(2) remedial award. We agree with the judge that
the differences in language between the two sections are not as significant as' Northern argues. Section 105(c)(2) expressly provides that

23/ Section 105{c)(3) establishes procedures under which a miner may
prosecute a discrimination case in the event that the Secretary declines
to file a complaint on his behalf. In addition to authorizing back pay
and reinstatement if the miner's complaint is sustained, the section
also provides that he shall be reimbursed for his costs and expenses.

143

the relief it authorizes is not limited to the reinstatement and back
pay mentioned. Furthermore, the "illustrative" nature of the relief
listed in section 105(c)(2) is made clear by the legislative history we
quoted above. Estle and Dunmire would not have b.orne such expenses (and
inconvenience) but for Northern's discrimination. We therefore hold
that reimbursement of their hearing expenses is an appropriate form of
remedial relief.
Finally, Northern objects t~ the back pay period used by the judge
in calculating Estle's back pay. The judge found that Estle's back pay
period extended from his loss of employment through to his reinstatement,
less net interim earnings from a job he obtained with another employer
on April 15, 1980. Northern argues that Estle is tied to the Secretary's
pleadings, which sought back pay only to his resumption of full employment with another employer (that is, seemingly until April 13, 1980)0
We affirm and incorporate by reference the judge 1 s thorough and scholarly analysis of this issue. 3 FMSHRC at 1343-45"
We observe only that, as the judge indicated, back pay is ordinarily
the sum equal to the gross pay the employee would have earned but fo~
the discrimination less his actual net interim earnings. See, for
example, OCAW v. NLRB, 547 F.2d 598, 602 (D.C. Cir. 1976).---wh.ile back
pay may be reduced in appropriate circumstances where an employee incurs
a Hwillful loss of earnings" (fails to mitigate damages) (OCAW v, NLRB,
547 F.2d at 602-3), we are satisfied that Estle made reasonable efforts
to mitigate his loss of income. He unsuccessfully sought rehire from
Northern (p. 5 above); he was not required under the Mine Act to seek
temporary reinstatement; and, in fact, he found employment in a reasonably short time. We also agree with the judge's refusal to exalt form
over substance in holding that Estle was not responsible for, and was
not necessarily limited by, the relief sought in the pleadings. Cf.
Rule 54(c), Federal Rules of Civil Procedure. Our concern is to make
miners whole, and technical problems in the pleadings can fairly be
cured, as they were here, at trial.
For the foregoing reasons, we vacate the order of temporary reinstatement for Dunmire and, on the basis articulated herein, affirm the
judge's decision in all other respects. The vacation pay award is
modified as discussed above.

144

Distribution
Nancy S. Hyde, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Charles W. Newcom, Esq.
Sherman & Howard
2900 First of Denver Plaza
633 Seventeenth St.
Denver, Colorado 80202
Joseph F. Furay, Esq.
Northern Coal Company
P.O. Box 17583, Tenminal Annex
Denver, Colorado 80222
Administrative Law Judge John Morris
FMSHRC
333 West Colfax Avenue
Denver, Colorado 80204

145

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

February 16, 1982

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

Docket Nos. CENT 79-27-M
CENT 79-28-M
CENT 79-206-M
CENT 79-207-M
CENT 79-208-M
CENT 79-332-M
CENT 80-167-M

v.
HOMESTAKE MINING COMPANY

DECISION

This penalty case arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq.(Supp. III 1979), and
involves alleged violations of mandatory safety standards. The
administrative law judge found that the operator had not violated
30 C.F.R. § 57.12-82 and vacated the underlying citations. However,
he found violations of other safety standards and assessed penalties. 1/
The Secretary of Labor and Homestake Mining Company filed petitions
for discretionary review which we granted. For the reasons that
follow, we affirm the judge.
I.

§

The first series of citations alleges violations of 30 C.F.R.
57.12-82. That standard provides:
Powerlines shall be well separated or insulated from
waterlines, telephone lines, and air lines.

1J

The judge's decision is reported at 2 FMSHRC 2295 (1980).

146

82-2-15

The parties stipulated that the power cables at issue were hung
from the back or ribs and were directly in contact with air or water
or telephone lines. They also agreed that there was no insulation
between the outer jacket of the cables and the metal lines. Three
types of power cables are involved here: one has three conductors
individually insulated with polyethylene, wrapped in filler and
covered with polyvinyl chloride jacketing; another has three conductors individually insulated with polyvinyl chloride. filler,
and polyvinyl chloride jacketing; and the third has two conductors
individually insulated with polyvinyl chloride and one bare ground
wire, all separated from one another and suspended in polyvinyl
chloride which forms the jacketing. All the cables are rated by
the manufacturer at 600 volts, but normally carry only 110 volts
at Homestake. 2:_/
The judge offered alternative reasons for holding the standard
had not been violated. He first found that these insulated and
jacketed power cables are not "powerlines" under the standard.
That term, the judge held, refers to single conductor wires 0 which
are usually exposed (such as trolley wires). The judge then found
that, even if these power cables are "powerlines" subject to 30 C.F.R.
§ 57.12-82, they are insulated in compliance with that standard.
The
judge looked to the definition of insulated in section 57.2 and found
the cables were "insulated in a manner suitable for the conditions to
which they were subjected.n 2 FMSHRC 2306. He stated that the poly~
vinyl chloride insulation protects the cables from physical abuse 0 as
does the jacketing of the same substance on all three cables. Id.
He noted that all the cables are insulated by the manufacturer to
"withstand ••• more than three times the voltage that actually
passes through them" and that the jacketing is "tough". Id. The
judge also concluded, "[T]he plain language of the·standard does not
require Respondent to provide additional insulation." 2 FMSHRC
2307.
The parties argue extensively about the precise definition of
"powerlines." Expert testimony in this case reveals that the term
"powerline" is not commonly used as a term of art by those trained
in electricity, and does not have a modern technical meaning. Nor
does either party convincingly demonstrate a common usage of the
term. 3/ We believe this case can be resolved, however, by focusing
on the-purpose of the standard without an exhaustive analysis of the
meaning of the term "powerlines". The cables in this mine contain
conductors that transmit electricity, and thus can be considered
powerlines; therefore, the standard applies to them.

!:./

The manufacturer's insulation rating is the amount of current
a manufacturer guarantees can be run through a cable without damage
to the cable.
~./
Further, as another administrative law judge has stated, "Trying
to ascertain [the meaning of the term "powerlines"] by analyzing other
standards in which it appears is not helpful since words are not used
with much precision in the regulations." White Pine Copper, 3 FMSHRC

481, 484 (1981).

147

From its wording, it is apparent that the regulation's purpose
is to assure that conductors of electricity are either "well separated
or insulated" to prevent the energizing of air or water pipelines, or
telephone lines. It follows that the standard seeks to protect miners
from the hazard of electrical shock and electrocution resulting from
contact with an energized air or water pipe, or telephone line. The
question in this case, then, is whether the power cables involved,
which transmit electric current, were so insulated as to prevent
the energizing of potentially electrically conductive metal pipes, air
or telephone lines.
The standard at 30 C.F.R. § 57.2 provides:
"Insulated" means separated from other conducting surfaces by
a dielectric substance permanently offering a high resistance to
the passage of current and to disruptive discharge through the
substance. When any substance is said to be insulated, it is
understood to be insulated in a manner suitable for the conditions
to which it is subjected. Otherwise, it is, within the purpose of
this definition, uninsulated. Insulating covering is one means for
making the conductor insulated.
In arguing that these power cables are not sufficiently insulated, the
Secretary relies on an interpretive memo concerning section 57.12-82
issued on February 21, 1975, by the then Assistant Administrator for
Metal and Nonmetal Mine Health and Safety. This memo stated in part:
Jacketing as provided on a powerline by the manufacturer is
not adequate for the insulating purposes of Federal mandatory
standard 55, 56, 57.12-82. Additional insulation or separation
must be provided.

*

*

*

*

*

*

Additional insulation means that insulation in
addition to the jacketing shall have a dielectric
stre,ngth at least equal to the maximum applied
voltage on the cond~ctor. l!t_/]
The amount of additional insulation that would be required by this
memo is not only minimal but, in terms of the power transmitted and
dielectric resistance, essentially meaningless. The power cables
involved in this case would be required to have additional polyvinyl
chloride insulation approximately 1/3 mil (1/3000 inch) thick. 5/
Moreover, the interpretive memorandum imposes a blanket require-;ent
that additional insulation be placed between power cables and metal
pipelines, regardless of the cable's existing insulation, dielectric
strength, the conditions under which the cable is to be used, or the
composition or design of the cable and its insulation. We recognize
4/
The dielectric strength or resistance of a substance is the
ability of that substance to resist the passage of electricity through
it. Dielectric strength is measured in volts per mil.
5/
The cables carry 110 volts, thus insulation with a dielectric
resistance of 110 volts would be required under the 1975 interpretive
memo. Unrefuted testimony indicates that polyvinyl chloride has a
dielectric resistance of 375 volts per mil. Polyvinyl chloride
insulation that is one-third mil thick (1/3000 inch) presumably has
a dielectric resistance of 125 volts per mil.

148

that enforcement of the standard would be simpler if an inspector
merely has to visually determine whether extra insulation has been
added where power cables and pipelines meet. We fail to see, however,
how this superficial examination bears any relationship to the purpose
of the standard. Rather, in order to make a bona fide determination
that insulation adequate to prevent the transmission of current to
adjacent pipelines is present, the adequacy of the added insulation
must be evaluated, and this determination must be based on the
objectively determinable character of the powerline and the existing
insulation. In order to achieve the purpose of the standard, enforcement should not turn on the subjective evaluation of an inspector,
without the objective evaluation of whether a hazard is or may be
present. Further, section 57.12-82 does not state that "additional
insulation" must be placed between "powerlines" and pipelines; it
merely requires separation or insulation. 6/
Thus, we reject the Secretaryvs interpretive memorandum. The
regulation does not require "additional" insulation, the amount of
additional insulation required by the interpretive memorandum is, as
we have noted, so minimal as to be not only essentially meaningless,
but such as to engender a false and possibly hazardous sense of security.
The purpose of the standard, as written, can more accurately be achieved
by an examination of the suitability of the insulation that is present
at crossover points where water, telephone or air lines are in proximity
to powerlines.
Accordingly, the insulation on the cables here involved at the
points where they contacted pipelines must be examined to determine
whether section 57.12-82 has been violated. The definition of "insulated"
in section 57.2 includes a requirement that the insulation be "suitable for the conditions to which i t is subjected." The judge noted
the cables in this case are insulated to withstand more than three
times the voltage that passes through them. In addition, he noted
that the jacketing, which also has insulating qualities, is "tough"
and that unchallenged manufacturer's specifications sheets "contain
impressive claims of resistance to abuse." 2 FMSHRC 2306. The
Secretary did not rebut Homestake's evidence. The judge concluded,
"The insulation and the jacket are sufficient to protect the cables
against normal hazards in the Homestake Mine." Id. The judge's
findings are supported by substantial evidence and are therefore
affirmed.

6/
If the Secretary intended to require that a particular kind or
amount of insulation be added to that supplied by the manufacturer,
he has that authority and could have so stated in the regulation,
and can do so now through rulemaking. Indeed, we strongly suggest
that he do so--and promptly.

149

II

This portion of Homestake involves three violations of mandatory
safety standards. The administrative law judge found that Homestake
violated these standards. For the reasons that follow, we affirm
the judge.
Citation No. 328789
On November 15, 1978, an MSHA inspector cited Homestake for an
alleged violation of 30 C.F.R. § 57.3-22. This mandatory standard
provides in part:
Miners shall examine and ·test the back, face, and rib
of their working places at the beginning of each shift and
frequently thereafter .••• Loose ground shall be taken down
or adequately supported before any other work is done ••••
The facts underlying this citation are disputed. The inspector testified that he noticed two miners slushing or preparing to slush muck
on a slusher machine located outside and immediately opposite the
entrance to the stope. The inspector also testified that he observed
two miners inside the stope. Homestake admitted the existence of the
loose rock. However, Homestake asserted in defense that the presence
.of a muck pile at the entrance to the stope created a more dangerous
situation. It argued that the miners would have had to climb onto
the dangerous muck pile in order to bar down the rock. It asserted
also that its miners did not go inside the stope.
The judge rejected Homestake's defense. The judge noted that in
MSHA v. Asarco, 2 FMSHRC 920, 924 (1980), another administrative law
judge held that "miners are not required to bar down while standing
on a muck pile." The judge found that the facts in Asarco were
distinguishable from the facts here. He held that Homestake 1 s failure
to establish the size and location of the muck pile failed to bring
the facts within the Asarco decision. Accordingly, the judge found
that Homestake had violated the standard and assessed a penalty.
Before us, Homestake again argues that compliance is not required
where checking for loose rock would itself create a hazard, and also
that the judge erred in finding that the muck pile did not create a
hazard. We reject both arguments. Assuming that Asarco establishes
a permissible defense to the violation at issue, we concur with the
judge's finding that Homestake failed to prove the defense. We note
that the testimony of Homestake's witness was ambiguous; he did not
expressly state that barring down loose rock required him to climb
on top of a dangerous muck pile. By contrast, the inspector
explicitly denied that he saw a muck pile constituting a hazard; nor
had other miners mentioned the presence of dangerous conditions. The
judge credited the inspector's testimony over that of the operator,
a credibility determination we see no reason to overturn. Thus, we

150

hold that substantial evidence supports the judge's conclusion that
Homestake violated the standard. ]_/
Citation No. 328928
On November 8, 1978, an MSHA inspector issued a citation alleging
a violation of 30 C.F.R. § 57.11-1, because Homestake failed to provide a safe means of access inside a manway. There was only a 13inch clearance between the manway ladder and the timbers of the manway
for a distance of six vertical feet. The cited standard provides:
Safe means of access shall be provided and
maintained to all working places.
The judge found that the stope was a working place within the
meaning of 30 C.F.R. § 57.2, because one or more miners were working
there. 8/ He also found that the manway was the only access to and
from the stope. The judge held that Homestake violated the standard
because it permitted men to work in a stope that had no safe means of
access.
On review, Homestake asserts that the constricted manway led to
a stope which was not a working place; the only work underway was
repair of the binline which, together with the manway, constitutes
the chimney. Therefore, it contends, the stope was not used as a
means of access to a working place. The inspector testified that
miners worked only part-time at repairing the binline, when they
had no work to do in the stope. Homestake's supervisor testified
that a miner was slushing in the stope above the stope nearest to the
constricted portion of the manway. Tr. 525-530. In this regard,
although he stated that he did not believe it was necessary for the
miner to use the constricted manway, he could not say whether the
miner had in fact used it. Id. Thus, in our view, substantial
evidence supports the judge'S-finding that the manway was used as a
means of access to a working place.
Homestake next argues that the judge erred in finding that the
manway was the only access to and from the stope. This error, if any,
is immaterial. In Hanna Mining Co., 3 FMSHRC 2045, 2046 (1981), we
considered an identically worded standard, and held that "the standard
requires that each 'means of access' to a working place be safe."
(Emphasis adde~ An operator may demonstrate that a cited area is
not a means of access by proving that no "reasonable possibility" exists
that a miner would use it to enter or leave a working place. Id. Here
Homestake failed to establish that the manway was not used as a-means of
access to the working place; for example, it presented no evidence that
the manway had been dangered-off to prevent employees, other than those
engaged in repair, from using the constricted manway. Accordingly, we
affirm the judge's finding of a violation.
7/
Homestake's argument that its miners did not actually enter the
stope and consequently were not exposed to the hazard is without
merit. The standard requires that miners examine the working place
for loose ground before commencing work. The judge found that the
stope was a working place. Homestake admits the existence of the
loose rock. The presence of the loose rock in the working place
establishes the violation regardless of whether the miners were
actually exposed to the danger posed by the rock.
§_/
30 C.F.R. § 57.2 provides in part: "'Working place' means any
place in Or about a mine Where W0r1]_ ~lbeing performed. II

Citation No. 328953
On March 1, 1979, an MSHA inspector cited Homestake for an alleged
violation of 30 C.F.R. § 57.17-1. That mandatory standard provides in
part:
Illumination sufficient to provide safe working
conditions shall be provided in and on all surface
structures •.•.
The citation stated:
Illumination was not sufficient for safe working
conditions in servicing the sheave wheel ••• and motor
components of the Otis elevator located at the floor
level on top of the elevator compartment. Light
emitted from the warehouse windows located below the
elevator floor made a blinding effect to observe the
floor and equipment mounted on the compartment floor,
The shaft of the Otis elevator was contained in a separate box-like
structure located above the top floor level and below the warehouse
ceiling, The sheave wheel, which powered the elevator, was on top
of the box-like structure,
The judge found that, although a flashlight or auxiliary light was
needed to repair the sheave wheel, additional light was also necessary;
improper lighting could have caused injury. He concluded that Homestake
violated the standard.
Homestake argues on review that the standard was satisfied by
using portable or auxiliary lighting. The operator also asserts
that the Secretary did not meet his burden of proof because he relied
solely on the inspector's subjective opinion as to the sufficiency of
the illumination.
In Capitol Aggregates, Inc., 3 FMSHRC 1388, 1389 (1981), pet.
for review filed, No. 91-4278 (5th Cir., July 22, 1981), we held that
flashlights and auxiliary lights alone could satisfy the standard
"where such lighting is accessible, its use is feasible and safe,
and it provides adequate light under the circumstances." In our
view, Homestake has failed to establish that flashlights or auxiliary
lights provided adequate illumination here. Nor did it show that
auxiliary lighting was always used, in addition to flashlights,
during maintenance and repairs. The judge's finding that the portable or auxiliary lighting was inadequate is supported by substantial
evidence. Moreover, the judge properly credited the inspector's subjective opinion as to the sufficiency of the illumination in these
circumstances. Capitol Aggregates, 3 FMSHRC at 1390. J../ Therefore,
we affirm the judge's finding of a violation.

2./

See also Clinchfield Coal Co. 1 BNA

MSHC 2027 (1979) aff 'd sub

~.,-crincli'field Coal Co. v. Secretary of Labor, No. 79-1306 (4t~

Cir., April 8, 1980) (unpublished), and J.P. Burroughs and Son, Inc.,
2 FMSHRC 3266, 3269 (1980).

152

In sum, we affirm the judge's decision as to each of the
citations.

Rosemary M. Collyer, Chairman,

Concurring~

I did not participate in the consideration or
ition of Part
I of this case because of prior representation of the Climax Molybdenum
Company at a time when the Climax cases dealing with identical issues
and decided by the Commission today 9 4 FMSHRC --- (DENV 78-553-M
et al. February 1982) were being tried and argued on
I
concur in the disposition of the citations in Part II.

153

Distribution
Timothy M. Biddle, Esq.
Crowell & Moring
1100 Connecticut Ave., N.W.
Washington, D.C. 20036
Leslie J. Canfield, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

154

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 2000t>

February 16, 1982

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

Docket Nos. LAKE 79-202-M
LAKE 80-24-M

AND

LOCAL 5024, UNITED STEELWORKERS
OF AMERICA,
v.
WHITE PINE COPPER DIVISION,
COPPER RANGE COMPANY

DECISION

This case involves the interpretation of 30 C.F.R. § 57.12-82,
a mandatory standard under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 !:.!_~· (Supp. III 1979). Section 57.12-82
provides:
Powerlines shall be well separated or insulated
from waterlines, telephone lines, and air lines.
For the reasons that follow, and for those expressed in our decision
in Homestake Mining Co., 4 FMSHRC
(CENT 79-27-M et al., February 16,
1982), issued today, we reverse the judge and hold that White Pine
Copper Division did not violate the standard. 1/
Three citations were issued in this case when an inspector
observed power cables, which were suspended from the back (roof), in
contact with metal air lines and with a support chain for an air line.
The cables involved carry 440 or 480 volts. All have three
individually insulated conductors and three grounding wires surrounded

};./

The judge's decision is reported at 3 FMSHRC 481 (1981).

155

82-2

by a neoprene (synthetic rubber) jacket. They are approved by MSHA
under 30 C.F.R. § 18.36 for use as trailing cables on mobile equipment.
The judge held that "powerlines" is not a term of art in electricity and that the "ordinary meaning" of the word includes the
entire cable--conductors, insulation and jacketing. He found it
"unlikely that the electrical cables would energize the metal
lines". 3 FMSHRC 483. Nevertheless, because in his view the
standard refers to the entire cable, the judge concluded that
it requires additional insulation between the outer jacket of
the cable and water, air or telephone lines.
As we noted in Homestake, the cables involved in these cases
contain conductors that transmit electricity, and thus can be considered
powerlines; therefore, section 57.12-82 applies to them. That standard
must be read in conjunction with 30 C.F.R. § 57.2. ];:./ The purpose of
these standards is to prevent injury to miners as a result of contact
with energized air, water or telephone lines. The Secretary relied on 9
and the j
accepted, a blanket "rule" that section 57.12-82 requires
additional insulation at crossover points without
for the suitability of the insulation that in fact was present. We rejected this
interpretation of the standard in Homestake. Under the standards, the
insulation present in the cable must be examined in order to determine
whether there has been a violation.
The judge found that the cables at issue here, which carry 440
or 480 volts, "have a maximum voltage rating of between 600 and 2,000
volts and have at least 25,000 volts of dielectric resistance." 3/
3 FMSHRC 483. Further, undisputed evidence indicates that the
neoprene jacket not only resists abrasion and flame (Tr. 215), but
also has insulating qualities. Tr. 92, 232. The jacket was
developed to withstand mine conditions and, as we noted above,
these identical cables were approved by MSHA for use on the mine
floor as trailing cables. The Secretary failed to prove that the
insulation on the cables at issue was unsuitable or otherwise
insufficient; therefore, he did not prove a violation of section
57.12-82.

'l:..J

Section 57.2 defines insulated as follows:
"Insulated" means separated from other conducting surfaces
by a dielectric substance permanently offering a high resistance
to the passage of current and to disruptive discharge through
the substance. When any substance is said to be insulated, it
is understood to be insulated in a manner suitable for the conditions to which it is subjected. Otherwise, it is, within the
purpose of this definition, uninsulated. Insulating covering
is one means for making the conductor insulated.
3/
The dielectric strength or resistance of a substance is the
ability of that substance to resist the passage of electricity
through it.

156

Accordingly, the decision of the judge is reversed, and the
penalties assessed are vacated. !!./

Commissioner

!!_/

Chairman Collyer did not participate in the consideration or
disposition of this case because of her prior representation of the
Climax Molybdenum Company at a time when the Climax cases dealing
with identical issues and decided by the Commission today, 4 FMSHRC
(DENV 78-553-M et al., Feb. 16, 1982), were being tried and
argued on appeal. - -

157

Distribution
Ronald E. Greenlee, Esq.
Clancey, Hansen, Chilman, Graybill & Greenlee, P.C.
Peninsula Bank Building
Ishpeming, MI 49849
Leslie J. Canfield, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Harry Tuggle, Esq.
United Steelworkers of America
Five Gateway Center
Pittsburgh, PA 15222
Administrative Law Judge James A, Broderick
FMSHRC
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

158

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

February 16, 1982
CLIMAX MOLYBDENUM COMPANY
Docket Nos. DENV 78-553-M
DENV 78-554-M .
WEST 79-340-M

v.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
CLIMAX MOLYBDENUM WORKERS,
LOCAL NO. 2-24410, OIL,
CHEMICAL AND ATOMIC WORKERS
INTERNATIONAL UNION

DECISION
This case involves the interpretation of 30 C.F.R. § 57.12-82, a
mandatory standard under the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801
~· (Supp III 1979).
For the reasons that follow,
and for those expressed in our decision in Homestake Mining Co., 4
FMSHRC
(CENT 79-27-M et al, Feb. 16, 1982), issued today, we
reverse the judge's decision and hold that the Secretary of Labor failed
to prove a violation of the cited standard. ];./
The relevant facts were stipulated. An inspector issued citations
after observing power cables, which were hung in haulage drifts, in
contact with air or water lines. The cables carry voltages of 110 to
440 volts and were in satisfactory condition. The cables never carry
voltages greater than the manufacturer's insulation rating. The identical
type of cable involved is also used as trailing cable and is approved by
MSHA for that use 1.lllder 30 C.F.R. § 18.36. As a general rule at the
Climax Mine, air and water lines are on the opposite side of drifts from
power cables. It is, however, sometimes necessary to locate air or
water lines, or power cables, across a drift to transmit air, water or
power to a specific location. Air lines, water lines, and power cables
frequently cross at the intersections of drifts.
The judge noted that the term "powerlines" in section 57.12-82 "is
not susceptible to a precise definitionn and concluded that it encompasses "all constituent parts of the cables." 2 FMSHRC 3695.
1:./

The judge's decision is reported at 2 FMSHRC 3681 (1980).

159

82-2 ... 13

As a result the judge concluded that section 57.12-82 requires insulation
in addition to that provided by the manufacturer between the outer
jacket of power cables and air, water, or telephone lines. The judge
reasoned that, because the standard refers to the entire power cable,
which itself contains insulation, it must require added insulation. The
judge also cited the "harsh environment" in underground metal and nonmetal mines in reaching his conclusion.
Section 57.12-82 requires:
Powerlines shall be well separated or insulated
from waterlines, telephone lines, and air lineso
As we noted in Homestake, the cables involved in these cases contain
conductors that transmit electricity, and thus can be considered powerlines;
therefore, this standard applies to themo A powerline is not "insulated 11
unless it is insulated "in a manner suitable for the conditions to which
it is subj ectedo" J:j The judge concluded that these cables, as they
come from the manufacturer, are not insulated in a manner suitable for
the conditions at the Climax Mineo He noted the possibility of damage
to cables from fly rock, rubbing by haulage equipment, and dragging over
sharp rock or metal edges. 2 FMSHRC 3699. Although consideration of
the specific conditions to which the cables are subjected is appropriate,
indeed necessary, we do not believe that the mere speculative possibility
that they could sustain some externally caused damage is sufficient to
render the cables "uninsulated"o ]_/
In order to prove a violation of section 57.12-82 the Secretary
must show that the "powerlines" are not insulated from pipelines. In
this case, he failed to prove that. The parties stipulated that these
cables were in satisfactory condition. They are approved for use on the
mine floor as trailing cables. In addition, the judge made several
findings indicating that the cables are "substantially overdesigned"o !±_/
He found that the insulation in the cables has a dielectric resistance

]:__/

30 C.F.R. § 57.2 provides in part:
"Insulated" means separated from other conducting surf aces by
a dielectric substance permanently offering a high resistance to
the passage of current and to disruptive discharge through the
substance. When any substance is said to be insulated, it is
understood to be insulated in a manner suitable for the conditions
to which it is subjected. Otherwise, it is, within the purpose of
this definition, uninsulated.
]_/
We note that add~d insulation would also be subject to damage from
these factors.
!±_/
The judge stated, "The testimony of Dr. Fred Leffler, Associate
Professor of Electrical Engineering at the Colorado School of Mines,
supports Climax's contentions that the cables ••• are substantially
overdesigned in terms of their dielectric properties." 2 FMSHRC 3698.

160

of between 7,500 volts and 23,750 volts, depending on the composition of
the particular cable. 2 FMSHRC 3698. (The cables carry 110 to 440
volts.) He also noted that the cables' neoprene jacketing not only
"protect[s] the insulation from outside forces such as oils, acids,
alkalies, water or moisture, flame and abrasion", but also "has an
insulating capability". Id. The judge's conclusion that these cables,
which we emphasize were iU-satisfactory condition, are not sufficiently
insulated whenever they· contact air, water or telephone lines is not
supported by the evidence.
Accordingly, the decision of the administrative law judge is
reversed and the penalties he assessed are vacated. 2./

Connnissioner

2_/

Chairman Collyer did not participate in the consideration or
disposition of this case because of her prior representation of the
Climax Molybdenum Company at a time when these cases were being tried
and argued on appeal.

161

Distribution
Charles W. Newcon, Esq.
Sherman & Howard
633 Seventeenth St.
Denver, Colorado 80202
Richard W. Manning, Esq.
Climax Molybdenum Company
1707 Cole Boulevard
Golden, Colorado 80401
Leslie J. Canfield, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Edwin Matheson, Chairman
International Brotherhood of Electrical Workers
Local 1823
P .0. Box 102
Minturn, Colorado 81645
Ms. Sylvia Balltrip
Office & Professional Employees International Union
Local 410
P.O. Box 1179
Leadville, Colorado 80461
Mr. David Jones
Oil, Chemical & Atomic Workers International
Local 2-24410
P.O. Box 949
Leadville, Colorado 80461

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

February 25, 1982

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. BARB 76-95
v.
IBMA 77-1

U.S. STEEL CORPORATION

DECISION

This case arises under the Federal Coal Mine Health and Safety
Act of 1969. 1/ United States Steel Corporation (U.S. Steel) challenges an administrative law judge's decision holding it responsible
for a violative condition created by an independent contractor working for U.S. Steel. For the reasons that follow, we affirm the judge's
decision.
U.S. Steel contracted with American Drilling and Boring Company
to perform drilling services at U.S. Steel's Lynch No. 37 Mine.
American extracted cores from the earth to determine the strata and
coal seams. On September 17, 1975, an MSHA inspector conducted a
special inspection of the drilling operation under section 103(g)

1/
30 U.S.C. § 801 et seq. (1976)(amended 1977). On March 8, 1978,
this case was pending-On appeal before the Department of Interior's
Board of Mine Operations Appeals. Accordingly, it is before the
Commission for disposition. 30 U.S.C. §_961 (Supp. III 1979).
The Mine Safety and Health Administration (MSHA) has been substituted
for its predecessor agency, the Mining Enforcement and Safety
Administration (MESA).

163

82-2-25

of the Act. The inspector issued a section 104(a) imminent danger
withdrawal order to U.S. Steel. l:_/ The order stated in part:
The No. 1 Acker Core drill ••• was not maintained in safe operating condition in that
the clutch assembly was broken, and there
was no possible way for the drill operator
to stop the drill in case of an emergency
(section 77.404).
U.S. Steel filed an application for review of the order. The
administrative law judge upheld the order and dismissed the application for review. U.S. Steel raises three issues on review: (1)
whether it was properly cited for a condition created by its independent contractor; (2) whether the judge erred in finding an imminent
danger existed at the time the order was issued, and (3) whether
the judge erred in ruling that the order was legally issued.
The liability argument raised by U.S. Steel is identical to the
argument rejected by the Commission in Republic Steel Corporation,
1 FMSHRC 5 (1979), and Kaiser Steel Corporation, 1 FMSHRC 343 (1979).
Accordingly, based on our decisions in Republic and Kaiser, we affirm
the judge's holding that U.S. Steel was properly cited for the condition created by its independent contractor. See also Cyprus Industrial
Minerals Co. v. FMSHRC, 664 F.2d 1116 (9th Cir. 198l)(quoting Republic
decision with approval), and Harman Mining Corp. v. FMSHRC. No. 81-1189 0
4th Cir. (December 24, 1981).
We also reject U.S. Steel's argument that an imminent danger did
not exist at the time the order .was issued. The judge found that
"principles of common sense and reason support the inspector's
determination that the operator of the machine could be seriously
injured in the event that he could not disengage the clutch and
stop the machine." Raving carefully reviewed the record, we find
that the evidence amply supports .the judge's finding that an
imminent danger existed at the time the order was issued. See
Pittsburgh & Midway Coal Mining Co., 2 FMSHRC 787 (1980). Thus,
the judge's finding is affirmed.

:l:.J

Section 104(a) provided:
If, upon any inspection of a coal mine, an authorized representative of the Secretary finds that an imminent danger exists,
such representative shall determine the area throughout which such
danger exists, and thereupon shall issue forthwith an order requiring the operator of the mine or his agent to cause immediately all
persons, except those referred to in subsection (d) of this section,
to be withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines that
such imminent danger no longer exists.

164

U.S. Steel's final argument is that the order was void because
neither American nor U.S. Steel was served with a copy of the Union's
complaint as provided for in section 103(g) of the Act. 1/ The only
evidence on this issue is the inspector's testimony that he did not
know whether U.S. Steel had been provided a copy of the complaint.
This testimony falls short of establishing that U.S. Steel in fact
was not served with the complaint. Also, U.S. Steel has not
demonstrated how it was prejudiced by the alleged failure of service.
Accordingly, we affirm the judge's finding that the order was validly
issued.
For the above reasons,

]./

Section 103(g) provided in part:
Whenever a representative of the miners has reasonable grounds
to believe that a violation of a mandatory health or safety standard
exists, or an imminent danger exists, such representative shall have a
right to obtain an immediate inspection by giving notice to the Secretary or his authorized representative of such violation or danger.
Any such notice shall be reduced to writing, signed by the representative of the miners, and a copy shall be provided the operator
or his agent no later than at the time of inspection, •••• Upon
receipt of such notification, a special inspection shall be made as
soon as possible to determine if such violation or danger exists in
accordance with the provisions of this title.

165

Collyer, Chairman concurring:
Although my personal views on the issue of an owner-operator's
liability for contractor violations under the 1969 Coal Act may be
more in accord with the views expressed.by Commissioner Backley in
his dissent in Republic Steel, I concur with the result reached by
the majority here. The 1969 Coal Act, under which the violation
at issue arose, was amended during the pendency of this appeal.
In previous cases construing the Coal Act, a majority of the
Commission resolved the question presented adversely to U.S. Steel's
position. Republic, supra; Kaiser, supra. I believe that no useful purpose would be served by re-examining this issue in the context
of the 1969 Act. Accordingly, I vote to affirm.

Backley~

Commissioner dissenting:

Again, for the reasons expressed in my dissenting opinion in
Republic Steel, 1 FMSHRC at 12-19, I must disagree with my colleagues.
I believe it clear that U.S. Steel was cited improperly for the
violations committed by its independent contractor.

/

~

Richard V. Backley, Commissioner

166

Distribution
Billy M. Tennant, Esq.
Louise Q. Symons, Esq.
U.S. Steel Corporation
600 Grant Street
Pittsburgh, PA 15230
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

167

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

February 25, 1982

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

v.

~·

Docket Nos. MORG 75-265
MORG 75-377-P

CONSOLIDATION COAL COMPANY
IBMA

76-69

ORDER

On January 4~ 1982, the Secretary of Labor filed a motion for
voluntary dismissal of this caseo We issued an order on February 11 0
1982 1 reserving ruling on the motion for 10 days from the date of
our order so as to afford the participants in this proceeding the
opportunity to file a response to the Secretary's motion. No
responses have been filed with the Commission. Accordingly, the
Secretary's motion for voluntary dism· al of this case is granted.

168

82-2-23

Distribution
Leslie J. Canfield, Esq.
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Alan B. Mollohan, Esq.
Corcoran, Hardesty, Ewart, Whyte & Polito, P.C.
1575 Eye Street, N.W.
Suite 510
Washington, D.C. 20005
Harrison Combs, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Stephen B. Jacobson, Esq.
Decastro, West & Chodrow, Inc.
18th Floor
10960 Wilshire Blvd.
Los Angeles, California 90024

169

Administrative Law Judge Decisions

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

fEB 1 \982
Contest of Citation

CLEVELAND CLIFFS IRON COMPANY,
Contestant

Docket No. LAKE 80-295-RM
Citation No. 286910; 4/10/80
SECRETARY OF LABOR,
Respondent

Empire Mill

SECRETARY OF LABOR,

Civil Penalty Proceeding
Petitioner

v.

Docket No. LAKE 80-417-M
A.C. No. 20-01012-05066V

CLEVELAND CLIFFS IRON COMPANY,
Respondent

Empire Mine or Mill

DISTRICT 33, UNITED STEEL WORKERS
OF AMERICA,
Representative
of the miners
DECISION
Appearances:

Ronald E. Greenlee, Esq., Clancey, Hansen, Chilman, Graybill
& Greenlee, Ishpeming, Michigan, for Cleveland Cliffs Iron
Company;
Stephen P. Kramer, Esq., Office of the Solicitor, U.S.
Department of Labor, Arlington, Virginia, for th~ Secretary
of Labor;
Ernest Ronn, Marquette, Michigan, and Paul S. Gravedoni,
Negaunee, Michigan, for the Representative of the Miners.

Before:

Judge Broderick
STATEMENT OF THE CASE
;

The above cases were consolidated for hearing and decision. Th~y invqlve
a challenge to the propriety of a citation issued charging a violation of the
mandatory safety standard contained in 30 C.li'cR. § 55.15-6, and a proposal
for a civil penalty based on the same citation. The citation charges that
50 gallons of fluid containing polychlorinated biphenol (PCB) spilled at the
Empire Mill of Cleveland Cliffs Iron Company (CCI) on April 10, 1980, and that
employees assigned to contain and clean up the spill were not provided with
proper protective clothing.

171

A hearing was commenced on May 13, 1981, and continued on August 11 and
12, 1981, in Marquette, Michigan. Anthony Maino, John Elvetici, Kenneth
Holmes and Martin Sather, all employees of CCI, testified on behalf of the
Secretary. William Carlson, Supervisor in the MSHA Marquette Michigan Field
Off ice and Richard Vik, District Manager of the MSHA North Central District
Office Duluth, Minnesota, also testified on behalf of the Secretary. Kenneth
Blau, an Industrial hygenist, and Leslie Jennings, both with the company's
Central Safety Department; Jerry Oja, Mine Superintendent at the Empire Mine,
Terry Steen, foreman, Francis B. Laurila, electrical shift supervisor, Dennis
Laituri, operating engineer, and James Tonkin, Safety Coordinator, all at the
Empire Mine; and Richard Walcott, an Industrial Hygenist with the Clayton
Environmental Consultants, all testified on behalf of CCI.
Post-hearing briefs have been filed by each partyo I have considered
the contentions made in the briefs and based on the record and the contentions
of the parties, I make the following decisiono
REGULATORY PROVISION
30 C.F.R.

§

55.15-6 provides as follows~

Special protective equipment and special protective
clothing shall be provided, maintained in a sanitary and
reliable condition and used whenever (1) hazards of process
or environment~ (2) chemical hazards~ (3) radiological
hazards, or (4) mechanical irritants are encountered in a
manner capable of causing injury or impairment.
FINDINGS OF FACT
1. Cleveland Cliffs Iron Company was, at all times pertinent to this
proceeding, the operator of the Empire Mine or Empire Mill located in
Marquette County, Michigan.
2. The Empire Mill is a large operation employing over nine hundred
workers which produces products which enter interstate commerce.
3. On April 10, 1980, at approximately 6:50 p.m., a transformer on the
fourth level of the mill exploded resulting in a spill of 40 to 50 gallons
of askerel transformer oil.
4. The transformer oil contained a mixture of polychlorinated
biphenyls (PCB's) and trichlorobenzine. The PCB's constituted from 55 to
70 percent of the oil.
5. The oil ran down to the control room located on the third level,
through the grating to the second level, the main floor and the basement.
6. The basement contained launders (floor drains or ditches) designed
to drain the overflow water in the milling process.

172

7. The company had experienced a PCB spill in December 1979 at its
Tilden Mine.
8. Following the December, 1979 spill there were discussions between
MSHA and company officials concerning the procedures to be followed in
handling PCB spills. The company's Central Safety Office began preparing a
clean-up procedure including a training program for employees.
9. A written clean-up plan entitled "PCB Handling and Disposal,"
introduced in evidence as GX-3, was prepared and distributed to the mines in
early April 1980. Among other things it provided that the first priority in
the event of a spill is to control its spread by damming or diking the leak.
It required in the event of a major spill that non-porous clothing, including
rubber or vinyl gloves, jacket, pants and boots, be worn to prevent skin
contact; that face shields and breathing apparatus be worno
10. The company also prepared an employee training program including a
slide show. It was sent first to the Tilden Mine and was at the Tilden Mine
on April 10, 1980.
11. The written plan (GX-3) was received by the Empire Mine about
April 8 or 9, 1980. It had not been implemented as of April 10. None of
the employees had received training in the handling and disposal of PCB's
prior to April 10.
12. Within 10 minutes of the spill on April 10, 1980~ one employee was
sent to the warehouse to get rags, and a cart was dispatched to obtain bags
of "oil dry" which were located on the second floor about 1/16 of a mile from
the site of the spill.
13. Six or seven employees were engaged in spreading rags and oil dry
on the control room floor in an attempt to contain the spill. Oil was
present on the walls, the control cabinets and an area approximately 10 feet
square on the floor. Thereafter a fan was placed in the doorway to remove
fumes. The employee lunch room was a short distance away on this level.
The employees were wearing ordinary work clothes including ordinary work
shoes. One employee became nauseous from the fumes.
14. The employees then went to the basement and spread additi~"..,l oil
dry on the floor and attempted to prevent the oil from getting in the
launders. They were still wearing regular work clothing. There was oil
on the handrailing to the basement, on the walls, dripping down the pipe and
on the basement floor. The employees got oil on their clothing including
their boots. One employee got some oil on his forearm and later developed
an itch.
15. After about 1 hour, the oil dry was all spread and the employees
were directed to remove their contaminated clothing and to shower.. The
affected areas were roped off.

173

16. MSHA Supervisory Inspector Carlson took dust and smear samples which
were sent to the MSHA laboratory in Denver, Colorado. The dust sample was
negative and the smear sample positive for PCB.

17. On April 25, 1980, a citation was issued charging a violation of
30 C.F.R. § 55.15-6.
18. On April 11, 1980, the company began to clean up the spill which
had been contained. The employees involved in this operation wore
disposable rubber clothing including boots and gloves and face shields with
respirators. MSHA officials were present at the mine during the cleanup.
19. Following the April 10, 1980 oil spill the company plan for
handling P9B spills was discussed at hourly employee safety meetings.
Protective clothing was obtained and placed in a newly installed cabinet on
Mill Line 15.
20. PCB is a toxic substance and can cause damage to a person if
inhaled, ingested, or contacted dermally. Exposure to PCB can cause damage
to internal organs, especially the liver. A single short term exposure would
not ordinarily cause serious damage, however.
ISSUES
lo

Are the terms of 30 C.F.R. § 55.15-6 impermissably vague?

2. Do the fa'cts show that CCI failed to provide and use special
protective equipment and special protective clothing on encountering hazards
in a manner capable of causing injury or impairment?
3. If a violation is shown to have occurred, was it caused by the
unwarrantable failure of CCI to comply with the regulation?
4. If a violation is shown to have occurred, what is the appropriate
penalty therefor?
CONCLUSIONS OF LAW
A.

The Regulation

Respondent challenges the regulation as vague on the ground that it
fails adequately to advise mine operators "of the type of special protective
clothing needed for compliance with the regulation." If Respondent's argument
were accepted, it would require the regulations to spell out in detail the
equipment and clothing required in the event of an infinite number of possible
adverse employment exposures. The regulation is clear and as specific as it
can reasonably be. The fact that (as Respondent argues) MSHA failed to
provide specific guidance beyond the terms of the regulation does not make it
impermissably vague. In fact the record clearly shows that prior to the
violation alleged herein, Respondent had prepared a specific plan for dealing

with PCB spills which included the requirement of non-porous clothing to
prevent skin contact. However it acquired the awareness, there is no doubt
that Respondent was aware of the requirements of the mandatory standard as
related to PCB spills.
B.

The Violation

Respondent asserts, and I concur, that the first priority irt the event
of a PCB spill is to prevent the fluid from entering water courses. This
does not negate a requirement that workers engaged in the containment
activity be protected from exposure. The requirements are in no way incompatible and there is nothing inherently impossible about their being observed
simultaneously. Specifically related to the situation under consideration?
there is no reason why the employees who were sent for rags and oil dry could
not also have obtained protective equipment and protective clothingo In fact
they were not directed to obtain the latter. The evidence is clear that
protective equipment and protective clothing were not provided for or used
by the employees engaged in the containment of the PCB spill on April 10~
1980. The evidence is also clear that the exposure to the PCB caused at
least two injuries: one worker experienced nausea from the fumes and one
worker suffered a temporary dermatitis from skin contact with the oil. The
record further indicates that the spill resulted in hazards to workers
capable of causing further injury or impairment. Therefore a violation of
30 C.F.R. § 55.15-6 is established.
C.

Unwarrantable Failure to Comply

Respondent was aware in July, 1979 that PCB was used in transformers
at its mines. In December 1979 a spill occurred, and Respondent was aware
of the need to establish a procedure to be followed to contain future spills
and to train employees in implementing it. It was aware of the danger of
PCB contamination of water courses and of the hazards of employee exposure
to the substance. It had in fact prepared a written procedure to handle PCB
spills and was in the process of training its employees. But ·the plan was
not implemented; the employees involved were not trained, despite a 4-month
period following the December, 1979 incident. Does this constitute an
"unwarrantable failure to comply" with the standard? If a violation results
from an operator's failure to correct conditions or practices which it knew
or should have known existed, the violation is the result of its unwarrantable
failure to comply. Zeigler Coal Company, 7 IBMA 280 (1977). Based on that
standard, I conclude that the violation found herein resulted from CCI's
unwarrantable failure to comply with the regulation.
D.

Penalty

The parties have stipulated that CCI is a large operator, that it has a
moderate history of previous violations, and that the imposition of a
reasonable penalty will not affect its ability to continue in business.
Based upon my analysis of unwarrantability, supra, I conclude that the violation was caused by ordinary negligence of CCI. Injuries resulted from the

175

violation, but were minor. More· serious injuries could have resulted, but
the evidence as to their nature and seriousness is inconclusive. I conclude
that the violation was moderately serious.
The citation was not issued for this violation until April 25, 1980.
Prior to that date, CCI picked up the contaminated clothing and directed
affected employees to shower. On April 11, 1980, the clean-up program was
begun and the employees involved were provided with special protective equipment and special protective clothing. The written program for handling PCB
spills was implemented following the April 10 spill and was discussed at
employee safety meetings. Protective clothing was placed in a special area
for employee use. These facts show that CCI demonstrated good faith in
attempting to achieve rapid compliance after notification of the violation.
I conclude that an appropriate penalty for the violation is $7500
ORDER
Based upon the above findings of fact and conclusions of law~ IT IS
ORDERED:
1. The contest of the citation is denied and the
citation is AFFIRMED.
2o CCI shall pay the sum of $750 as a penalty for
violation of 30 C.FoRo § 55015-6 within 30 days of the date
of this decision.

J
Distribution:

Af!lzx~t~

(i,HU<l'
James A. Broderick
Administrative Law Judge

By certified mail

Ronald E. Greenlee, Esq., Attorney for Cleveland Cliffs Iron Company,
Clancey, Hansen, Chilman, Graybill & Greenlee, Peninsula Bank Building,
Ishpeming, MI 49849
Stephen P. Kramer, Attorney, Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Arlington, VA 22203
Mr. Harry Tuggle, United Steelworkers of America, AFL-CIO-CLC, Five Gateway
Center, Pittsburgh, PA 15222
Mr. Ernest Ronn, Safety and Health Coorditator, District 33, United
Steelworkers of America, 706 Chippewa Square, Marquette, MI 49855

176

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER. COLORADO 80204

)
)
)
)
)
)
)
)

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

v.

SIERRA BLANCA MILLING & PROCESSING co.,)

.FEB 2 t982
CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 80-337-M
A/C No. 29-01796-05002
MINE: Sierra Blanca Mill

)
)
)

Respondent.
~~~~~~~~~~~~~~~~~~~-

DECISION AND ORDER
Appearances:
Allen Reid Tilson, Esq., Office of the Solicitor
United States Department
Labor, 555 Griffin Square, Suite 501
Dallas, Texas 75202
For the Petitioner
Billy D. Thomas, President
Sierra Blanca Milling & Processing Company
Ruidoso, New Mexico 88345
Pro Se·
Before: Judge Jon D. Boltz

STATEMENT OF THE CASE
Petitioner filed a petition pursuant to the Federal Mine Safety and
Health Act of 1977 (the "Act") requesting the assessment of a civil penalty
against the respondent for alleged violation on January 16, 1980, of 30
C.F.R. § 55.15-6 l_/

1/

The pertinent part of the regulation states as follows:

Mandatory. Special protective equipment and special protective
clothing shall be provided, maintained in a sanitary and reliable condition
and used whenever
(2) chemical hazards, ..• are encountered in a manner
capable of causing injury or impairment.

177

By way of answer respondent alleged that the land on which any
violation occurred had been subleased to two other mining companies and
that the employees "who were in violation" had not worked for respondent
since September 16, 1979.
At the commencement of the hearing an additional issue was added by
the respondent. Respondent contended that it had also intended to contest
seven other citations which had also been served on respondent for alleged
violations occurring on January 16, 1980, and January 17, 1980.
The petitioner contends that the Office of Assessments had duly
notified respondent that the forms which were sent to it were the ones on
which it should make notice of contest; and that since respondent properly
completed only one of the forms, it did not contest the other citations
issued. Thus, having failed to contest those citations in accordance with
the rules of procedure, the proposed penalties became the final order of
the Conunission and were not subject to review.
The petitioner agreed that ruling on whether or not all eight
citations were at issue instead of just the one alleged by the petitioner
would be reserved until evidence on all citations were received at the
hearing. Accordingly, evidence was presented as if the complaint had
alleged all eight citations along with proposed penalties applying thereto,
Findings and Conclusions in Regard to Ruiing Reserved at the Hearing
After the proposed assessment forms on all eight citations had been
sent to the respondent by the Office of Assessments of MSHA, respondent,
within the 30 days allowed, wrote on one of the cards which had been sent
to him, the following words:
"None of the penalties applied to our operation!
operations since August 1979. 11

No mining

Respondent had also marked an "X" on the card by the following printed
words:
"I wish to contest and have a formal hearing on al 1 the
violations listed in the proposed assessment."
The card was signed "Billy D. Thomas, Pres."
The card was stapled to the other cards which respondent had received,
and all the cards were returned to and date stamped by the Office of
Assessments on June 23, 1980. However, none of the other cards had any
notations on them indicating whether or not any further citations were
being contested. Respondent had also sent a letter which was received by
the same Office of Assessments on June 16, 1980, in which respondent listed
all eight citation numbers. In the letter respondent alleged that the
citations did not apply to it. Since only one card had been specifically
marked, the petitioner filed a "Complaint Proposing Penalty", alleging only
one citation, No. 173872.

178

I. find that respondent did intent to contest all eight citations.
Although each card returned to the Office of Assessments by the respondent
was not signed separately, they were all sent together in one letter. The
notation by "Billy D. Thomas, Pres~~', showed that he did not believe any of
the "penalties" applied to his corporation. Thus, all of the
citations were placed in issue.
I find that respondent was in substantial compliance with procedural
rule 25 in that the petitioner received the return cards and the letter
within the required 30 days. Therefore, all eight citations were properly
at issue at the hearing.

Additional Findings and Fact:
1.

There is no history of previous violations by the respondent.

2.

Respondent is a small operator.

3. The assessment of penalties proposed will not affect respondents
ability to continue in business.

4. Respondent demonstrated good faith in attempting to achieve rapid
compliance after notification of the alleged violations.

CITATION NO. 173877
Petitioner alleges that the operator in charge of the mill had not
given the required notice to MSHA pursuant to 30 C.F.R. 55.26-1 2/,
before commencement of construction of its mill, and that the mill had been
under construction for approximately four months prior to the inspection on
January 16, 1980. Responrlent contends that it was merely landlord of the
property which it had subleased to two other companies, namely, Eagle Peak
Mining Company and Double Eagle Mining Company, and, that, therefore,
respondent was not responsible for the alleged violations.
The MSHA inspector testified that when he arrived at the site there
was "beginnings of what was required to construct a mill. 11 There was a
corrugated metal building under construction with dimensions of approximately 30 feet by 60 feet. There was a partly submerged tank in place to
hold fluid and an earthern tank at the rear of the building with a drain
from the building to the tank. There was a house trailer also located on
the site. Three persons were in the metal building disassembling the
fittings on a large vat which was not in operation. Electrodes had not

2/

The pertinent part of the regulation states as follows:

Mandatory. The owner, operator, or person in charge of .any metal and
non-metal mine shall notify the nearest Metal and Nonmetal Mine Safety and
Health Subdistrict Office of the Mine Safety and Health Administration
before starting operation of the approximate or actual date mine operation
wi 11 connnence • • • •

179

been installed and as yet there was no electrical power wired to· the
building. One of the three persons in the metal building who was an
employee of the respondent told the MSHA inspector that the mill was under
construction and that ore would be milled by a mill located nearby until
such time as construct'ion of the. mill on which they were working was
.completed. The minerals to be milled or processed were ~oming from the
Jicarilla Pit, a location owned by the respondent.
Since the facility and equipment were to be used in the milling of
minerals, the location inspected constituted a mine and was subject to the
jurisdiction of the Act, according to the definition contained in section
3(h)(l) of the Act. The pertinent .part of that section defines a mine as
11

•••
lands, structures, facilities, equipment, •.• or
other property ••• to be used in the milling of such
minerals •••

The cited regulation, 30 C.F.R. 55.26-1, does not require that the
facility be in any particular stage of completion before the required
notification must be given to MSHA. The regulation requires that notice be
given of the approximate or actual date the operation will commence.
Since no notice had been given as required, there was a violation of the
regulation.
The question then is, who was the 11 owner, operator, or person in
charge" who should have given the notification to MSHA? By way of defense
respondent has denied that it was the operator, but was merely "landlord"
of the property where the mine facility was located.
The definition of "operator" is set forth in section 3(d) of the Act,
and includes:
11

• • •
any owner, lessee, or other person who operates, controls,
or supervises a . • • mine •.• ".

To control is to "exercise restraining or directing influence over" a
matter. 3/ The conduct of the respondent must be examined in order to
determine whether or not respondent exercised control over the mine
facility. If respondent did exercise control, then respondent is an
operator; but if respondent did not exercise control, then by definition
respondent is not an operator. It should also be noted that the definition
of operator in the Act does not mention that the control or the supervision
of the operator must be exclusive.

3/ Black's Law Diet ionary defines to control as to "exercise restra1n1ng
or directing influence over; regulate; restrain; dominate ••. 11 •

180

Billy Thomas, the President of the respondent corporation, testified
that on behalf of respondent, he leased six acres of land from American
Mineral Recovery, Inc., (hereinafter, "American") which had a mill on land
contiguous to the six acres. The respondent leased the property because
American wanted respondent to set· up a refinery in order to refine the ore
processed through the mill at American. The ore would come from respondent's Jicarilla pit to the mill at American. After it was processed
there, it would go to respondent's refinery located on the six acres of
land leased from American. The refined concentrate would then be sent to
the smelter. When respondent leased. the acreage from American there were
no improvements on the property. Respondent had moved a house trailer onto
the property in preparation for pursuing refinery operations,
Billy Thomas testified further that the six acres leased was then
subleased to two entit
, namely, Eagle Peak Mining Company and Double
Eagle Mining Company. Dale Runyon was the apparent owner of Eagle Peak
Mining Company. A contract introduced into evidence showed that American
was planning to mill respondents ore and also ore supplied by Mr. Runyon.
Billy Thomas testified that his agreement with Mr. Runyon was that when Mr.
Runyon finished using the building that Double Eagle Mining Company and Mr.
Runyon were constructing on the six leased acres, they would vacate it, and
respondent would then become owner of the building. It was anticipated
that Mr. Runyon and Double Eagle Mining Company would use the building
about six.months. The sublease between these parties was never signed and
no copy of it was
into evidence.
Assuming the facts as to be as stated by respondent, it is apparent
from a review of all the testimony and exhibits that respondent had
exercised substantial control over the operation of the facility. This
conclusion is reached based on the following facts:
1. Although the site had been subleased to Eagle Peak Mining Company
and Double Eagle Mining Company respondent exercised control over the
property by moving the house trailer onto the property November, 1979,
approximately two months before the inspection.
2. When the MSHA inspector arrived at the site on January 16, 1980,
three persons were disassembling fittings on a large vat. Two of those
persons were employed by Double Eagle Mining Company, but the third person
was employed by the respondent.
3. Two persons employed by Double Eagle Mining Company at the s
told .the MSHA inspector that Billy Thomas, President of the respondent,
frequented the
te to give them instruction and to supervise, guide, or
direct the operation.
4. The MSHA inspector observed that three persons may have been in
contact with cyanide while working on the vat. When Billy Thomas was
contacted by the inspector in regard to the presence of cyanide, Thomas

181

indicated he did not approve its use, but he would provide "the people"
with protective clothing. After Thomas found out about the use of cyanide
on the property he directed the owner to remove it.
5. At some time prior to January 16, 1980, Billy Thomas had sent his
son, who was employed by the respondent, along with another employee of the
respondent, to the leased property with instructions to help the three
persons who were working there on the construction of the building to
install the roof trusses. Of the three persons already working on the
building, two were employees of Double Eagle Mining Company and one was an
employee of the respondent. These were the same persons who were present
at the time of the inspection on January 16, 1980.
6, Respondent had operated a mill in another location prior to the
time the six acres were subleased from American. After the inspection the
MSHA inspector contacted Billy Thomas by telephone, and Mr. Thomas informed
the inspector that he thought he had already informed the Federal Government of his change of location by showing it on a quarterly employment
form. This indicates that respondent intended to change his business
·location to the new site prior to the inspection.
7. On January 17, 1980, the son of Billy Thomas who was employed by
the respondent corporation went to the mill site to remove some furniture
from the mobile home, While he was there he encountered the MSHA inspector
and the three persons who had been working there. The MSHA inspector
informed Mr, Thomas 9 son that he had closed down the building temporarily
due to some problems. Thomas' son told the three persons who had been
working, two employed by Double Eagle Mining Company and one employed by
the respondent, to keep out of the building until "we get everything
straight". The MSHA inspector gave the citation to Thomas' son and he took
them to Billy Thomas.
8. When the MSHA inspector contacted Billy Thomas to ask him who was
in charge at the work site, Thomas said that Ted Zamora was in charge and
that Thomas would send Zamora a letter to that effect. At that time Zamora
was being paid as an employee of Double Eagle Mining Company.
If respondent had merely leased the six acres and exercised no further
control over the improvements being constructed, respondent would not be
classified as the operator according to the definition. However,
respondent's conduct shows that the sublease to Double Eagle Mining Company
and Eagle Peak Mining Company was not an "arm's length" transaction.
Respondent continued to exercise some control over the operation even
though two of the employees present when the inspection took place were
employed by Double Eagle Mining Company.
Accordingly, I conclude that there was a violation of 30 C.F.R. 55.
26-1, that respondent was the "operator or person in charge" within the
meaning of the regulation, and that Citation No. 173877 should be
affirmed.

182

CITATION NO. 173872
Petitioner alleges that on January 16, 1980, special protective
clothing was not provided to employees in violation of 30 C.F.R.
55-50.6. _!_ Employees were observed working on a chemical vat that had
previously been used in a cyanide milling process. The liquid solution of
cyanide liberated from the vat was observed as having saturated an area of
sand approximately 10 feet by 10 feet. The employees were required to work
over and walk through the sand and liquid material. The employees were
wearing leather boots with neoprene soles. One employee was wearing
leather gloves~ and one was not. Thus, the employees were wearing no
special protective clothing.
When the samples, taken from the liquid solution and sand that was
directly under the vats where workers were standing, were analyzed by a
laboratory, it was found that they contained quantities of cyanide. The
testimony was undisputed that the workers could have become ill from
contact with the cyanide while using no special protective clothing,
Pet it ioner has shown by preponderance of the evidence that there was a
violation of the cited regulation. The Citation should be affirmed.

CITATION NO. 173873
Petitioner alleges that hazardous material was being stored in the
corrugated metal building in an open 55 gallon drum which was not labeled
to indicate the hazardous material contained therein, namely, ore concentrate material containing cyanide. A violation of 30 C.F.R. 55.
16-4 4/ was alleged,
·
'The evidence is undisputed that the drum was not la be led. A sample
taken from the drum was analyzed by a laboratory and it was found to
contain cyanide. Petitioner's witness testified without rebuttal that had
the material been picked up by an employee, the cyanide could have been
absorbed into the skin and could have caused illness.
Since the material allegations of Petitioner have been proven by a
preponderance of the evidence, the Citation should be affirmed.

4/ Mandatory. Hazardous materials shall be stored in containers of a type
approved for such use by recognized agencies; such containers shall be
labeled appropriately.

183

CITATION NO. 173874
Petitioner alleges that at the time of the inspection a competent
person was not designated by the mine operator or was not in attendance at
the mine site to take charge in case of an emergency, in violation of 30
C.F.R. 55.18-9._2/
The MSHA inspector testified that when none of the three persons at
the site would admit to being in charge, the inspector telephoned Billy
Thomas, President of the respondent, and Thomas said that Ted Zamora, an
employee being paid by Double Eagle Mining Company, was in charge and that
he "always had been". Thomas also stated that he would send Zamora a
letter to that effect.
Based on the testimony of Billy Thomas, I find that Ted Zamora was
designated as a competent person in charge, and that he was in attendance
at the time of the inspection.
Accordingly, the Citation should be vacated,
CITATION NO. 173875
Petitioner alleges a violation of 30 C.F.R. 55.15-1 ..§/ The
Citation alleges that water or neutralizing agents were not available for
employees to use in the event of contact with corrosive chemicals and
harmful substances being stored at the mill.
There was a 55 gallon drum of ore concentrate on the property and an
analysis of the material in the drum showed that it contained some
cyanide. Petitioner's witness testified that absorption of the cyanide
into the unprotected skin of a worker could cause illness. There was also
cyanide present in the sand under the vat on which the employees were
working.
Water was available on the adjacent property at American, but there
was no evidence to show that this water would have been available at all
times while persons were working on respondent's property.

5/ Mandatory. When persons are working at the mine, a competent person
designated by the mine operator shall be in attendance to take charge in
case of an emergency.

6/

The pertinent part of the regulation states as follows:

Mandatory •••• water or neutralizing agents shall be available
where corrosive chemicals or other harmful substances are stored, handled,
or used.

184

Consequently, a violation of the regulation was proven a by preponderance of the evidence and the Citation should be affirmed.

CITATION NO. 173876
Petitioner alleges that adequate first aide material including
blankets were not provided at the mill site. Further allegations are that
the three employees working at the mill stated that they had not seen or
been informed as to the location of any first aid material at the mill, all
in violation of 30 C.F.R. 55.15-1. !_/
Respondent presented no evidence that adequate first aid materials
were provided. Thus, the petitioner has proven by a preponderance .of the
evidence that the cited regulation was violated.
The Citation should be
affirmed.

CITATION NO. 173879
Petitioner alleges that records of examination of each working place
that were conducted by a competent person designated by the operator and
conducted at least once each shift were not available for review by an MSHA
representative •.~/
The evidence shows that the improvements on the property were still
under construction and development, and that there was no production nor
any particular designated work place or shift for the three employees ...2/ Under these circumstances I find that no violation has been
proven by preponderance of the evidence. The Citation should be vacated.

7/

The pertinent part of the regulation states as follows:

Mandatory. Adequate first aid materials, including stretchers and
blankets, shall be provided at places convenient to all working areas.
8/

The pert inert part of the regulation stat.es as follows:

Mandatory. A competent person designated by the operator shall
examine each working place at least once each shift for conditions which
may adversely affect safety or health ••• (b) a record that such examinations were conducted shall be kept by the operator for a period of one
year, and shall be made available foi review by the Secretary or his
authorized representative.
9/ A shift is defined as the "number of hours or the part of any day work.
Also called tour." U.S. Department of the Interior, Bureau of Mines, a
dictionary.of Mining, Mineral, and Related Terms. Page 1000 (1968).

185

CITATION NO. 173889
Petitioner alleges that the 7000-2 quarterly employment report was not
retained at the immediate mine site office and made available for review by
an MSHA representative in violation 30 C.F.R~ 50.30(a). l!}_/
At the time of the inspection on January 16, and 17; 1980, there was
no Form 7000-2 at the mine site. According to the requirements of the
regulation the quarterly report for employees who worked in January, 1980,
would not be due until 15 days after the quarter ended on March 31, 1980.
The lease agreement in which the six acres were subleased from American was
dated October 16, 1979. Although an individual may have worked at the mLne
during the quarter of October, November, and December, there was no
evidence presented to show what took place during that period of time.
Thus, the petitioner failed to present evidence that any individual worked
at the mine during a calendar quarter which would have required that Form
7000-2 be filed.
The petitioner having failed to present a pr1ma facie case, the
Citatfon should be vacated,
In regard to al 1 cit at ions whi.ch should be affirmed, I find that the
gravity 6f the violations was not serious, and that the operator is
chargeable with ordinary negligence.
CONCLUSION OF LAW
1. The undersigned Administrative Law Judge has jurisdiction over the
parties and subject matter of these proceedings.

2. The Petitioner hits proven by preponderance of the evidence that
the Resp6ndent violated the regulations *s cited in Citation Nos. 173877,
173872, 173873, 173875, and 173876.
3. The Petitioner has failed to prove by a preponderance of the
evidence that Respondent violated regulations as cited in Citation Nos.
173874, 173879, 173889.

10/ The pertinent part of the regulation states as follows:
(a) Each operator of a mine in which an individual worked during any
day of a calendar quarter sh al 1 complete a MSHA Form 7000-2 in accordance
with the instruction and criteria in section 50.30-1 and submit the
original to ••• MSHA .•. within 15 days after the end of each calendar
quarter.

186

ORDER
Citation Nos. 173874, 173879, and 173889 and the penalties therefor
are vacated. The following Citations are affirmed and the respondent is
ordered to pay civil penalties assessed in the total sum of $578.00 within
30 days from the date of this Decision.
CITATION NO.
173877
173872
173873
173875
173876
TOTAL

CIVIL PENALTIES
ASSESSED
$ 20.00
240.00
240.00
44.00
34.00
$578.00

Jon D. Bo tz "- _,
.Administrative Law Ju
Distribution:
Allen Reid Tilson, Esq,
Office of the Solicitor
United States Department of Labor
555 Griffin Square, Suite 501
Dallas, Texas 75202
Mr. Billy D. Thomas, President
Sierra Blanca Milling & Processing Company
Box 2943
Ruidoso, New Mexico 88345

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

v.
MASSEY SAND AND ROCK COMPANY,
Respondent,

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JEB 2 1982
CIVIL PENALTY PROCEEDING
DOCKET NO. WEST 80-94-M
A/C No. 04-10854-05003
MINE: Indio Pit & Mill

~~~~~~~~~~~~~~~~~~~~

Appearances:
Linda R. Bytof, Esq., Office of Daniel W. Teehan, Regional Solicitor,
United States Department of Labor, San Francisco, California
For the Petitioner
Jack L. Corkill, Esq,
Indio, California
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent Massey Sand and Rock Company~
(Massey), with a violation of 29 C.F.R. 56.11-1, }_/ a regulation
adopted under the Federal Mine Safety and Health Act, 30 U.S.C. 801 et seq.
Respondent denies that a violation occurred and further contests the-ap--~
propriateness of the penalty.
After notice to the parties a hearing on the merits was held in Indio,
California.

1/

The cited regulation provides as follows:

§ 56.11 Travelways, 56.11-1 Mandatory.
provided and maintained to all work places.

188

Safe means of access shall be

ISSUES
The issues are whether 30 C.F.R. 56.11-1 is unduly vague and thereby
violates constitutional due process. Further, did a violation occur, atid
if a violation is found, what penalty, if any, is appropriate.
FINDINGS OF FACT
1. In April, 1979, Randall Thompson was employed by Massey as a
mechanic welder and loader operator (Tr. 9).
2. Thompson's duties included servicing equipment and routine maintenance (Tr. 10).
3,

His duties also involved greasing the head pulley above the sand

4.

The head pulley is 35 to 40 feet above the ground (Tr, 15),

silo.

5. On April 27~ 1979~ as he had on other occasions, Thompson walked
up the conveyor belt to reach the head pulley (Tr. 15-18),
6. There was no walkway, handrail, ladder, or work platform (Tr,
16-17, Exhibit R-u).
7. As he began to grease the head pulley the conveyor started and
threw him into the bottom of the silo (Tr, 15, 22),
8.
18-19).

Thompson had never been told not to climb the conveyor belt (Tr.

9. Massey abated by installing a ladder to reach a work platform
equipped with handrails (Tr. 42, 149).
10. In January 1979, prior to Thompson's fall an MSHA inspector
discussed workers climbing conveyors. The inspector indicated a crane and
cage could be used to provide safe access if the cage itself complied with
MSHA regulations (Tr. 142, Exhibit P-3).
11. Massey has safety programs and frequent tool box safety meetings
(Tr. 110, Exhibit Rl-RS).
12. All .of Massey's other conveyors have work platforms at the head
pulleys. These platforms can be reached by ladder or stairway (Tr. 22),
DISCUSSION
The threshold question is whether the regulation in issue can
withstand respondent's attack of vagueness.
A statute which either forbids or requires the doing of an act in
terms so vague that men of common intelligence must necessarily guess at
its meaning and differ as to its application violates the first essential

189

of due process of law. Connally v. General Construction Co., 269 U.S.
385, 391 ( 1925). This principle of law also applies to industrial and
connnercial safety standards that can result in the imposition of civil
penalties for their violation. Cf Brennan v. OSHRC, SOS F. 2d 869, 872
(10th Cir. 1974); Diebold, Inc. V-: Marshall, 585 F. 2d 1327, 1335-1336,
(6th Cir. 1978); Longview Refining Co. v. Shore, 554 F. 2d' 1006, 1114
(Temp Emer., Ct. App. 1977), cert denied 434, U.S. 836 (1977).
In deciding whether a safety standard satisfies the principle of due
process, the regulation must be examined "in the light of the conduct to
which it is applied" Ray Evers Welding Co. v. OSHRC 625 F. 2d 726, 732 (6th
Cir. 1980); United States v. National Dairy Products Corp. 372 U.S. 29, 33,
(1963).
The appellate courts have considered the vagueness argument in
connection with regulations promulgated under the Occupational Safety and
Health Act (OSHA), 29 U.S.C. 651 ~seq.
·One line of cases dealing with the personal equipment
ions have
applied an objective 11 reasonable 11 test. That is, whether a reasonably
prudent person familiar with the circumstances of the industry would have
protected against the hazard. American Airlines, Inc. v. Secretary of
Labor 578 F. 2d 38, (2nd Cir. 1978); Voegele Co. v. OSHRC 625 F. 2d 1075,
1079 (3rd Cir, 1980); Bristol Steel & Iron Works, Inc. v. OSHRD, 601 F. 2d
717 1 723 (4th Cir. 1979) Ray Evers Welding Co. v. OSHRC, supra, 625 F, 2d
at 731-732; Arkansas Best Freight's System Inc. v. OSHRC 529 F. 2d 649$ 655
(8th Cir. 1976); Brennan v. Smoke Craft, Inc., 530 F. 2d 843, 845 (9th Cir,
1976). The First Circuit explained that "knowledge of the existence of a
hazardous situation must be determined in light of the common experience of
an industry, but that the extent of precautions to take against· a known
hazard is that which a conscientious safety expert would take" General
Dynamics v. OSHRC, 599 F. 2d 453;464 (1st Cir. 1979).
On the other hand, the Fifth Circuit, by contrast, has linked the
reasonableness standard to the custom and practice of the industry. In
Ryder Truck Lines, Inc. v. Brennan 497 F. 2d 230, 233 (5th Cir. 1974) the
Court said the general industry safety standard was not unconstitutionally
vague as loQg as it "affords a reasonable warning of the proscribed conduct
in the light of common understanding and practices", B & B Insulation,
Inc. v. OSHRC 583 F. 2d 1364 (5th Cir. 1978). See also Cotter & Company v.
OSHRC 598 F. 2d 911 (5th Cir. 1979); Power Plant Division, Brown & Root,
Inc. v. OSHRC 590 F. 2d 1363 (5th Cir. 1979).

The other circuits have not followed the Fifth Circuit in limiting
reasonableness to the custom and practice of the industry because, as the
First Circuit explained, such a ruling "would allow an entire industry to
avoid liability by maintaining inadequate safety training." General
Dynamics supra. supra 2d at 464, accord Voegele Co., supra at 1078. The

190

Sixth Circuit said that industry standards and customs should not be
determinative of reasonableness because there may be instances where a
whole industry has been negligent in providing safety equipment for its
employees" Ray Evers Welding, supra at 732.
Under either line of cases Massey cannot complain that the regulation
is vague. The photographs show that Massey maintains an extensive conveyor
system (Exhibit R-6, photographs 2 and 3). All of Massey's conveyors, with
the single exception of where Thompson was injured, have work platforms at
the head pulleys. The platforms are reached by ladder or stairways. From
these facts I conclude that Massey, as its own consc
ious safety expert
recognized the hazard by providing work platforms for all but one head
pulley.
Massey's post trial brief argues that MSHA regulations do not prohibit
its employee from walking on the conveyor belt. Masseyis argument
overlooks the thrust of the regulation. The regulation requires safe
access to all working place. One method of safe access could be the
installation of a ladder, and a work platform with handrails, Another
method of safe access could have been the use of the crane and man cage,
In this case Massey abated with the former and failed in the proof of the
latter.
The cases cited by Massey are not inopposite this
In
ana
Vineyard Division of New Bedford Gas v. OSHRC 512 F. 2d 1148 (1st
1975) the Court stated: 11 an appropriate test
whether a reasonable
prudent man familiar with the circumstances of the industry would have
protected against the hazard." As previously stated here Massey recognized
the hazard.
In Diebold, Incorporated v. Marshall, 585 F. 2d 1327 (6th Cir. 1977),
the Court held that a point of operation guarding of power presses was
properly applied to press brakes. However, the Court would only apply the
standard in the future. This was based on the view that a portion of the
standard was unartfully drafted, that there was a connnon industry understanding regarding the guarding of press brakes, and that there was
administrative enforcement indicating that the safety regulation was
inapplicable to press brakes. None of the above situations obtain here.
The standard is clear and concise. There is no connnon industry
understanding that work platforms should not be provided, Further, there
is no showing that MSHA ever considered the regulation inapplicable.
In Kent Nowlin Construction v. OSHRC 593 F. 2d 368 (10th Cir. 1979)
the Court reversed the finding of a violation of 29 C.F.R. 1926. 652(h)
The Court ruled that Kent Nowlin "should not be penalized for deviating
from a standard the interpretation of which, in relation to kindred
standards cannot be agreed upon by those responsible for compelling
compliance with it and with oversight of the procedures for its enforcement."

191

The fact that Massey provided work platforms at all other of its head
pulleys which were reached by ladder or stairways would clearly indicate
that the cited doctrine is inapplicable. Massey's also relies on Fleutic
v. Rosenberg 302 F. 2d 652 (9th ~ir. 1962); Jordan v. DeGeorge 341 U.S. 223
(1951); and Rodine-Becker Co. Docket No. 75-651 but those cases are not
applicable to these facts.

CIVIL PENALTY
Section 110 of the Act, (30 U.S.C. 820(i)), provides as follows:
(i) The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
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 1 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. In
proposing civil penalties under this Act, the Secretary may rely
upon a surnmary review of the information available to him and
shall not be required to make findings of fact concerning the
above factors.
Concerning the Massey's history; there have been four violations in
the previous 24 months (Tr. 4). Massey is a small to medium size operator:
the company operates 40,098 man hours per year. The Indio pit and mill
operates 18,250 man hours per year (Tr. 4). The assessment of a penalty
will not affect Massey's ability to continue in business (Tr. 4).
The company was negligent since the lack of a work platform was
apparent. The gravity of the violation was severe since an employee was
working in an unguarded position at the head pulley 35 to 40 feet above the
ground. Massey rapidly complied and installed the necessary.platform and
safe access.
The Secretary proposed a special assessment of $2,500.00 (Exhibit
P-2). I disagree. The Secretary's proposal overly concentrates on the
gravity of the violation. The remaining favorable statutory criteria
cannot. be ignored. Considering the statutory criteria I assess a civil
penalty of $500.00.

192

Based on the foregoing findings of fact and conclusions of law I enter
the following:
ORDER
1.

Citation 379052 is affirmed.

2.

A civil penalty of $500.00 is assessed.

Distribution:
Linda R. Bytof, Esq.
Office of the Solicitor
. United States Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, balifornia 94102
Jack Corkill, Esq~
43-850 Monroe Street
Indio, California 92201

193

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER. COLORADO 602.04

FEB 2 1982
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COLORADO WESTMORELAND, INC.,

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Contestant,

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

CONTEST OF CITATION PROCEEDINGS
DOCKET NO. WEST 81-240-R
Citation No. 789250
DOCKET NO. WEST 81-241-R
Citation No. 789251
(Consolidated)
MINE: Orchard Valley

~~~~~~~~~~~~~~~~~~~~-

DECISION
Appearances:
'Charles W. Newcom, Esq.~ Sherman & Howardi 2900 First of Denver Plaza
633 Seventeenth Street, Denveri Colorado 80202
For the Contestant
Robert J. Lesnick, Esq., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294
For the Respondent.
Before: Judge John A. Carlson
STATEMENT OF THE CASE
These consolidated cases, heard under the provisions of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act"),
arose from an inspection of contestant's underground-Coal mine. The
Secretary of Labor's inspector issued two citations alleging violations of
contestant's (Westmoreland's) approved roof control plan. The standard
published at 30 C.F.R. § 75.200, requires compliance with such a plan. The
violations were designated "unwarrantable" under section 104(d)(l) of the
Act, and the second citation was coupled with a withdrawal order under
section 104(d).
Westmoreland duly contested the citations and the order and a full
hearing on the merits was had. No jurisdictional issues were raised.
Extensive post-hearing briefs were filed by both parties.

194

SUMMARY AND DISCUSSION OF
THE EVIDENCE
CITATION 789250 - DOCKET NO. WEST 81-240-R
The Secretary's inspector made. his .inspection on April 15, 1981. The
approved roof control plan (joint exhibit 1) requires that entry widths be
cut to 20 feet or less, and that roof bolts be installed on 5 by 5 foot
centers. It also provides that where" .•• the distance between outer bolts
and the rib exceeds five feet, additional bolts or timbers will be installed." JJ
Westmoreland witnesses did not dispute the inspector's testimony that
the entryway between rooms 7 and 8 measured approximately 26 feet wide at
its widest point at the time of inspection. Witnesses for both parties
agreed that rib sloughage had occurred. Beyond that point, however 9
witnesses for the two parties differed sharply on most material facts •
. The inspector insisted, first of all, that the roof control plan
requires that "roadways" be 20 feet or less in width. Westmoreland
correctly contends, however, that the plan contains no such injunction. It
requires only that entryways (which may also serve as haulageways) may not
be cut to a width greater than 20 feet. Although the citation was written
in.terms of a 11 roadway 11 violation the inspector ultimately acknowledged
that the plan speaks only to the width of the original cut (Tr. 37 0 38),
The essence of Westmoreland' s de·fense is this: that all cuts were
within the prescribed 20 foot limits, but that on the morning of the
inspection a phenomenon known as "bounce" caused a sudden sloughage from
the ribs and a consequent widening of the entry area; and that miners were
already at work setting additional timber along both sides of the area in
question when the inspector arrived.

1/

The pertinent part of the citation reads:
The approved roof control plan was not complied with in the 8 crosscut, the numbers 7 and 8 rooms of 5 east pillar section as
the width of the entries measured from 25 to 30 feet and additional support such as posts were not installed to limit the
roadway to 20 feet~ and in the entrance the number 8 room the
distance from the last roof bolt to the rib measured in excess of 10 feet.

195

Thus, throughout the hearing wit~esses addressed much of their
testimony to the questions of when and how the admitted sloughage occurred,
when the operator took steps to correct it, and what those steps were.
Westmoreland's section foreman claimed that timbering was already in
progress at the end of the previous shift at a point near room 7, and that
timbers were set near the ribs as a routine precaution against rib sloughage (Tr. 81). He maintained that he put two men to work continuing the
timbering with the beginning of the morning shift; and that at 7:15 a.m. he
had measured the width of the entryway and found it to be 18 feet.
According to this witness, a severe "bounce" or sudden shifting of the mine
strata, occurred early in the shift, causing extensive rib sloughage
between rooms ·7 and 8 and widening the roof (Tr. 62-63). A second bounce,
shortly thereafter, caused more sloughage. The bounc
, he claimed, was
also severe enough to knock down the tubing between the 7th and 8th
crosscuts (Tr. 63).
The inspector, however, was convinced that the sloughage was the
product of a gradual process (squeeze or heave) (Tr. 4~-49 1 145-146), He
based this opinion on his general experience in underground mining coupled
with specific expertise gained from tutelage under a now-retired inspector
who was an acknowledged MSHA authority on bouncing. Bouncing was unlikely,
he said~ at depths above 1,500 feet (the area in question here was 700');
and was also unlikely except in proximity to the face. Moreover~ the size
of the coal pieces were too large to be typical of bounce.
Westmoreland points out, however, that the inspector had paid but few
visits to this particular mine, and that all of its witnesses substantiated the sect-ion foreman 1 s claims. Two roof bolters and the underground
supervisor testified that bouncing, an almost daily phenomenon in the mine,
had indeed occurred that morning. These witnesses and the operator's
safety coordinator further pointed to rock dust as evidence of the abrupt
and recent character of the sloughage. The undisputed evidence established
that the ribs, roof and faces had been fully rock dusted at the end of the
previous shift. Had the sloughage occurred gradually over a period of
several days, as the inspector inferred, sloughed materials would have been
dust-covered. The inspector made no effort to contradict the uniform
testimony of Westmoreland's employees that all sloughage areas on the
morning of the inspection were dust-free.
I am convinced that the sloughage occurred in the way described by the
operator -- abruptly on the morning of the inspection. The direct evidence
of Westmoreland's several employees 1s far more persuasive than the
inferences drawn by the inspector.
It is nevertheless true, of course, that when the inspector arrived
the area betwe2n rooms 7 and 8 was not in compliance with the literal
requirements of the roof control plan. The roof was too wide and was not
yet supported. Does this, without more, signify violation? Given all the

196

circumstances, I think not. Read in its entirety, the roof control plan
appears to contemplate situations where mined areas widen owing to natural
causes beyond the operator's control. At page 17 for example, it provides:
Where pillar corners have sloughed off ~x
cessively, more than .five feet from the
nearest support, they will be supported with
additional bolts or timber posts.
This implies, certainly, that the operator has a reasonable time
which to correct roof support deficiencies arising from sloughage.

in

Generally, under the Act, operators may not successfully defend
against a violation of a mandatory standard on the basis that it occurred
without negligence or fault. United States Steel Corp, I FMSHRC 1306
(1979); Heldenfels Brothers, Inc. 2 FMSHRC 851 (1980)~ aff'd 636 F. 2d 312
(5th Cir. 198li unpublished),
That general rule cannot apply here, however, The standard demands
compliance with the roof control plan; but the plan itself contemplates
remedial measures for sloughage. It would follow, then, that if the
operator takes those measures, and does so with dispatch and in conformity
with procedures established elsewhere in the standards for setting of
additional supports and for cleaning up rib sloughage 1 no liabili
ensues.
I would view the matter differently had Westmoreland been dilatory or
had it proved indifferent to the hazards resulting from the sudden creation
of unsupported roof areas. The credible evidence shows, however, that
after the bounce no mining occurred ~n or beyond the sloughage area and
crews set to work quickly to clean up the loose material from the floor and
to set additional supports.I/ Also, the record allows no inference
that the means used to remove the sloughage and set the additional timber
did not accord with other parts of the plan which dictate safe and
acceptable procedures for those tasks. (See, for example, page lOA, Roof
Control Plan). On the contrary, the inspector acknowledge that no one was
working under an unsupported top (Tr. 21).
Accordingly, the evidence does not show a failure by Westmoreland to

2/ Subsequent discussion in connection with citation 789251 will show that
bolters were in room 8 during a part of the time in question, but they,
too, were engaged solely in roof support activities.

197

comply with its roof control plan.
vacated. ]../

Citation 789250 should therefore be

CITATION 789251 - DOCKET NO. WEST 81-241-R
Later the same morning the inspector issued his second citation which
he coupled with a withdrawal order under Section 104(d)(l).4/ This
citation and order concern alleged conditions and miners' conduct in room
8 immediately located around the corner, so to speak, from the entryway
discussed earlier. According to the inspector, the outer edges of the 11 T11
bars (the ATRS System) which furnished temporary protect ion to roof bolting
personnel while bolting was in progress were more than 5 feet from the ribs
of the room. Thus, under the terms of the roof control plan, no one could
be under the unsupported portion of the roof between those outer edges and
the rib. Westmoreland's witnesses did not dispute that the measured
distances between the rib and the outer edges of support system were
approximately nine feet to ten feet (Tr. 31).
·These witnesses sharply challenged the inspector is testimony, however
that he saw the two roof bolters standing outside the protection furnished
by the machine. According to the operator's witnesses, the bouncing which
affected the entryway width had also widened room 8, leaving sloughage, and
causing them to clean up the outer corner of the room before the bolter
could be positioned in the room. A subsequent bounce caused them to pull
the bolter out because of additional sloughage. According to both members

3/ As the testimony went forward, the inspector stressed the unsupported
Ticorner 0 of the entryway which the subject of citation 789250 and room 8,
which is the subject of citation 789251. The inspector appeared unclear as
to which citation covered the corner. It appears to be mentioned in both
citations. For the purposes of this decision it makes little difference,
but I specifically hold that the unsupported area on the corner was more
properly covered in the initial citation since additional timbers were
installed there rather than additional bolts (Tr. 96, 115-117). This was
the method of correction selected by the operator for the areas between
rooms 7 and 8.
4/

As pertinent, the citation and withdrawal order read:

The approved roof control plan was not complied with in the No. 8 roof
of the 5th east sect ion as Larry West and Larry Rogers, roof bolters, were
observed installing roof bolts to the left and right of the outer contact
point of the ATRS system was [sic] 9 feet and 10 feet to the rib, and
temporary roof supports were not install~d, the entry width was 27 feet.
Th.e No. 8 roof where roof bolting was being done, [Technically this second
action may be classifiable simply as a withdrawal order, but is described
in this decision as a citation since the parties routinely referred to it
as such in the pleadings, trial and briefs•]

198

of the bolting crew, they had positioned the machine and were beginning to
drill and place the first center bolts when the inspector first appeared at
room 8. Both men emphatically denied being anywhere but under the ATRS
system (Tr. 121, 126, 130). According to the bolters, had they not been
interrupted by the inspector, they would have installed the center bolts,
would then have backed the machine, moved it back in at a different angle,
and then proceeded to set the outer bolts on one side. This procedure
would have been repeated to bolt the other side. The two men admitted that
they could have swung the booms on the bolter out beyond the protection of
the ATRS to bolt nearer the rib, but asserted they did not do so. They
maintained that that procedure was never followed if the distance between
the edge of the ATRS and the rib line exceeded five feet (Tr. 128, 136).
Westmoreland'i safety coordinator and its underground supervisor, both of
whom were present during this phase of the inspect ion, claimed that neither
bolter stepped outside the ATRS system (Tr. 88, 98). The second of these
witnesses also stated that neither during the inspection nor the closing
conference did the inspector mention that bolters were beyond the
protection of the ATRS.
The only issue here is whether the bolters~ or either of them, were
outside the protection afforded by the ATRS system •.2/ For the reasons
which follow, I hold they were not. First, I am somewhat impressed by the
uniformity of the testimony of the four Westmoreland witnesses on this
issue, Ordinarily, the testimony of that many witnesses will reveal some
inconsistency. Of far greater importance$ however were certain weaknesses
in the inspector's testimony.
The inspector testified with particularity concerning where he saw the
two bolters, marking their positions on exhibit 3, and claiming with
certitude that both were standing on the mine floor while operating the
bolter (Tr. 147, 154-156). That all of the operator's witnesses testified
to the contrary does not necessarily carry the day for Westmoreland;
credibility may not be measured by a mere witness count. The content of

5/ At one point the inspector testified that he should have issued two
citations: one for the breadth of the unsupported roof, another for the
presence of the men outside the ATRS (Tr. 30). During the inspection he
required that the men leave the machine and set temporary supports (Tr.
30). But he later clarified his position, stating that no violation would
have occurred had the men remained under the ATRS (Tr. 52-54).

199

the bolters testimony:, however, throws substantial doubt upon the accuracy
of the inspector's observations. The design of the machine, they claimed,
does not permit its operation from floor level because the boom controls
are mounted too high. Rather, bolting operators must stand in boxes or
cages mounted on the booms, since these boxes contain all controls and
cannot be reached from floor level (Tr. 127, 128, 163). Westmoreland's
underground supervisor likewise insisted that ground operation was
impossible with this machine (Tr. 159). I believe it unlikely that these
witnesses would have testified untruthfully on so easily verifiable a
matter. I consequently accept Westmoreland's version of the facts and find
the inspector was mistaken. The bolters were within the protection of the
ATRS system, and no violation occurred. Citation 789251 and the accompanying withdrawal order will therefore be vacated.
ORDER
In accordance with the findings and conclusions contained in the
narrative portion of this dee ion:
. (1).

Citation 789250 docketed as WEST 81-240-R is ORDERED vacated

(2). Citation and withdrawal order 789251 docketed as WEST 81-241-R
is ORDERED vacated, and
(3) These consolidated proceedings are

smissed.

Carlson
Administrative Law Judge
Distribution:
Charles W. Newcom, Esq.
Sherman & How·ard
2900 First of Denver Plaza
633 Seventeenth Street
Denver, Colorado 80202
Robert J. Le$nick, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294

200

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE I.AW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

FEB 3 1982

Civil Penalty Proceeding
Docket No. KENT 81-192
A.O. No. 15-05120-03027A
Ken No. 4 North Mine

v.
ERNIE BROCK,
Respondent

ORDER DISMISSING PROCEEDING
Statement of the Case
This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent on September 22, 1981,
pursuant to section llO(c) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. 820(c). The proposal seeks a civil penalty assessment
in the amount of $300 against the respondent for an alleged violation
of mandatory safety standard 30 CFR 75.200. 1/ The alleged violation
is based on certain conditions and practices-detailed in an imminent
danger order no. 0795972 issued pursuant to section 107(a) - 104(a)
of the Act on May 21, 1979. The order was issued to Peabody Coal
Company for the alleged violation which petitioner asserts took place
at the above captioned mine, and petitioner asserts that the named
respondent in this case was employed at the mine as a foreman. Petitioner
further alleges that on or about May 21, 1979, and for a period of
approximately one week prior thereto, respondent, acting as an agent
of Peabody Coal Company, knowingly authorized, ordered, or carried out
Peabody's violation of the cited section(s).
Respondent filed his answer to the proposal on October 7, 1981,
denying any violation of section llO(c) on his part. He does admit
to the fact that the mine is subject to the Act, that he was employed

lf

Although the proposal filed by the petitioner makes reference to
section 75.200, a copy of the supporting citation attached to petitioner's
proposal reflects that the "part and section" cited by the inspector
was changed from section 75.200 to section 75.202.

201

as a mine foreman at the time the citation issued, and does not dispute
the fact that the citation was issued and served on Peabody Coal Company.
Motion to dismiss
By motion filed January 20, 1982, respondent's counsel moves for a
dismissal of this case on the grounds that the respondent has been
prejudiced by the extreme delay between the time the citation was issued
on May 21, 1979, and the service of MSHA's proposed civil penalty assessment
on the respondent on July 20, 1981. In support of the motion to dismiss,
counsel states that after the citation was issued, Peabody Co.al Company
filed an application for review of the citation and an expedited hearing
was held on this application on June 13-14, 1979. Counsel further states
that respondent Brock testified in Peabody's behalf at the hearing, and
while Peabody was represented by counsel, respondent Brock was not
as he had not been charged with any violation, Since Mr, Brock testified
to the events surrounding the issuance of the citation, counsel maintains
that his participation in those events has been well-known to MSHA
since at least June 13-14, 1979.
In further support of his motion, respondent 1 s counsel points to
the fact that when MSHA served its proposed assessment on the respondent
July 20, 1981, more than two years had passed since the citation was
issued and since the hearing where all the facts surrounding the event
in question were laid open to MSHA. Since it is now January, 1982,
some three years after the citation issued, counsel asserts that MSHAis
delay in bringing this case is completely inexcusable and inherently
prejudicial to the respondent.
In support of the claim of prejudice, respondent's counsel states
that the Ken No. 4 North Mine last produced coal on October 12, 1979.
Its entrance has been sealed since November 19, 1979. All reclamation
activities associated with this mine, including covering the mine entrance
with earthen material, has been concluded since January, 1980, and not
until a year and a half following closure and sealing of this mine had
passed did MSHA propose to assess a penalty against respondent Brock.
The sealing of the mine is supported by an affidavit by Peabody's VicePresident of Underground Operations, Eastern Division, Henderson, Kentucky.
With regard to the instant case filed against the respondent Brock,
counsel states that the condition of the roof in the mine in question
would be the central issue to be resolved in this penalty proceeding.
Since the mine is available to no one, and since the evidence "has long
been literally covered up", counsel maintains that a proper defense
cannot be prepared on respondent Brock's behalf, and he attributes
this to MSHA's excessive delay in bringing this case. Counsel maintains
that the prejudice test established by the Commission in Secretary of Labor
v. Salt Lake County Road Department, Docket No. WEST 79-365-M (July 28, 1981)
and reiterated in Secretary of Labor v. The Anaconda Company, Docket No.
WEST 81-94-M (August 13, 1981), is well met in the instant case, and that
MSHA's delay is in blatant disregard of the "reasonable notice" provisions of the Act and respondent Brock has been prejudiced thereby.

On January 26, 1982, petitioner filed a response to the motion to
dismiss. Petitioner does not concede that its delay has been unreasonable,
and it opposes respondent's motion to dismiss. However, petitioner states
that it has determined that there is insufficient evidence to prove its
case and moves for an order approving withdrawal of its civil penalty
proposal.
Petitioner's motion to withdraw its proposal for assessment of
civil penalty on the ground that there is insufficient evidence to
prove its case is DENIED. The matter concerning the sufficiency of
evidence is a judgment that petitioner should have made before filing
its case in the first place and before subjecting the respondent to a
prosecution under section llO(c).
Respondent's motion to dismiss on the ground that MSHA's delay
has prejudiced his opportunity to reasonably prepare and present a
defense is GRANTED, and this case IS DISMISSED WITH PREJUDICE.

Distribution:
E. Robert Goebel, Esq., 233 St. Ann St., Owensboro, KY 42301 (Certified Mail)
J. Philip Smith, Esq., U.S. Department of Labor, Office of the Solicitor,
4015 Wilson Blvd., Arlington, VA 22203 (Certified Mail)
Harold West, UMWA, 417 3rd St., Beaver Dam, KY 42320 (Certified Mail)

203

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

FEB 3 1982

Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,
On behalf of

Docket No. LAKE 81-159-D

JOHN GRIFFIN,
Complainant

Baldwin No. 1 Hine

v.

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Miguel J. Carmona,
•sand Thomas P. Piliero, Esq.,
Office of the Solicitor, U.S. Department of Labor, for
Complainant;
Thomas R. Gallagher, Esq., St. Louis, Missouri, for
Respondent.

Before:

Judge Broderick
STATEMENT OF THE CASE

This case involves a claim by John Griff in, an employee of
Respondent, that he was suspended for 3 days without pay for an
incident on December 20, 1980, which he alleges was activity protected
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 ~~·
The case was heard in St. Louis, Missouri on October 20,
1981 and in Falls Church, Virginia on December 15, 1981. John Griffin,
William Pillers, Leonard Krantz, Doug Rushing, Daniel Seiver and Arthur
Grigg testified for Complainant; John Laughland, John Hull, Martin
Sommer, Darryl Kirkman and Thomas Zweigart testified for Respondent.
Both parties have filed posthearing briefs. Having considered the
record and the contentions of the parties, I make the following
decision:
FINDINGS OF FACT
1. Complainant John Griffin was at all times pertinent to this
proceeding employed by Respondent as a miner, more specifically as a
repairman.

204

2. On December 20, 1980, Thomas Zweigart section foreman asked
Chief Electrician Darryl Kirkman for a repairman to work on his unit.
3. John Griffin was assigned to work with Zweigart's unit.
receiving the assignment, he passed a remark indicating that he
intended to disrupt activities in Zweigart's unit.
4.

Upon

Griffin rode in a mantrip to the face area with the unit crew.

5. The area had been heavily rock dusted before the crew arrived,
and considerable dust remained in the air.
6. After foreman Zweigart checked the face areas, the crew went
up to the faces where the air was relatively clear. Zweigart decided
to ventilate the section and purge it from dust and at the same time
move the continuous miner into the next room to get it ready for
producing coal.
7. In order to
e the miner,
instructed Griffin to
turn the power on to the unit. It was customary for the repairman
assigned to a production unit to turn on the power.
8. Griffin refused to turn on the power stating that it wasnvt
safe because of the dust. He later stated that the dust made it
impossible for him to inspect the cables which he felt should be done
before energizing the unit.
9. In the mine in question it was not customary for the repairman
to inspect the cables before turning on the power to the unit. Each
equipment operator inspected the cable to his own piece of equipment
and notified the repairman of any defects.
10. Griffin later stated that the dust concentration made it
difficult to breathe and unhealthy to walk to the transformer to turn
on the power.
11. Foreman Zweigart then ordered Griffin to turn on the power
and when he refused, Zweigart called the mine manager, John Laughland.
Laughland asked about the dust and instructed Zweigart to order Griff in
again to turn on the power. T:Jhen he refused, Laughland instructed
Zweigart to have Griff in removed from the mine and turn on the power
himself, which Zweigart did.
12. The Mine Superintendent John Hull was informed of the
incident and he prepared a written 5-day suspension with intent to
discharge. Hull and Laughland met Griffin inside the mine. Griffin
admitted that he was wrong and that he should have turned on the
power. He requested that the disciplinary action be reduced to a
3-day suspension. Because he admitted his error, Hull changed the
letter to show a 3-day suspension.

205

ISSUES
1. Was Complainant suspended for activity protected under
section 105(c) of the Act?
2. If the answer to the previous question is in the affirmative,
what remedy should be awarded?
DISCUSSION WITH CONCLUSIONS OF LAW
In the case of Fasula v. Consolidation Coal Company, 2 FMSHRC
2786, 2 BNA MSHC 1001, the Commission held that refusal to work in
conditions believed to be unsafe or unhealthful is protected activity
under the Act. It further held that a prima facie case of a violation
of section 105(c)(l) is made out if it is shown that the adverse action
complained of was motivated in any part by the protected activityo
The employer may affirmatively defend by showing that he would have
taken the adverse action for unprotected activity alone. In the case
of Robinette Vo United Castle Coal Company, 3 FMSHRC 803 9 812 9
2 BNA MSHC 1213, it was further held that refusal to work is protected
i f the miner "ha[s] a good faith, reasonable belief in a hazardous
condition.u
The record here shows that there was excessive rock dust in the
air at the time and place involved in this case. It further shows 0
however, that the section foreman did not intend to begin production
prior to clearing the air. He ordered the power turned on in order
to move the miner and intended to clear the air and ventilate the
unit while the miner was being readied.
Based on all of the testimony, I conclude that Complainant did
not refuse to perform work because of a good faith belief that doing
so threatened his health or safety. I find that the reason Complainant
gave for his refusal was in fact a sham. My conclusion is based on
my observing Complainant's demeanor on the witness stand as well as
the answers he gave. I credit the testimony of Martin Sonuner and
Darryl Kirkman concerning Complainant's remarks when he was assigned
to the section. I generally credit the testimony of John Hull and
John Laughland concerning the issuance of the disciplinary suspension,
and decline to credit Complainant's version of this occurrence. I
conclude that Complainant deliberately attempted to disrupt the
activities of the section in the hope that he might obtain time off.
The dust in the atmosphere and its alleged relation to health and
safety was used as a pretext.
Since a good faith believe in the existence of a health or safety
hazard is required to find protected activity, it is unnecessary to
discuss other aspects of the Pasula test.

206

I conclude that Complainant's suspension did not result from
activity protected under the Mine Safety and Health Act.
ORDER
Based upon the above findings of fact and conclusions of law,
the above proc_eeding is DISMISSED.

j
Distribution:

'(l4t1iLS

A/Jwdn~

James A. Broderick
Administrative Law Judge

By certified mail

Miguel J. Carmona, Esq.~ Office of the Solicitor~ U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604
Thomas R. Gallagher, Attorney for Respondent 9 P.O. Box 235,
St. Louis, MO 63166
Mr. John Griffin, 6 East Kaskaskia, Pinchneyville, IL 62274
Thomas A. Mascolino, Esq.~ Counsel for Trial Litigation, Office of
the Solicitor, Division of Mine Safety, U.S. Department of Labor 0
4015 Wilson Blvd., Arlington, VA 22203

207

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

FEB 3 1982
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

Civil Penalty Proceeding
Docket No. WEVA 81-379
A.O. No. 46-01397-03098V
DeHue Mine

YOUNGSTOWN MINES CORP.,
Respondent
DECISION
Appearances:

David Bush, Attorney, U.S. Department of Labor, Philadelphia,
Pennsylvania, for the petitioner; Roger S. Matthews~
Esquire, Pittsburgh, Pennsylvania, for the respondent.

Before:

Judge Koutras
Statement of the Case

The proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a),
charging the respondent with one alleged violation of mandatory safety
standard 30 CFR 75.400. Respondent filed a timely answer in the
proceedings and a hearing regarding the petitions was held on November 17,
1981, in Charleston, West Virginia, and the parties appeared and
participated therein.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing regulation
as alleged in the proposal for assessment of civil penalty filed in ·this
proceeding, and, if so, (2) the appropriate civil penalty that should be
assessed against the respondent for the alleged violation based upon
the criteria set forth in section llO(i) of the Act. Additional issues
raised by the parties are identified and disposed of in the course,of
this decision.
In determining the amount of a civil penalty assessment, section
llO(i) of the Act requires consideration of the following criteria:

208

(1) the operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the operator, (3)
whether the operator was negligent, (4) the effect on the operator's
ability to continue in business, (5) the gravity of the violation,
and (6) the demonstrated good faith of the operator in attempting to
achieve rapid compliance after notification of the violation.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, P.L. 95-164,
30 U.S.C. § 801 et~·
2.

Section llO(i) of the 1077 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 29 CFR 2700.1 et ~·

The parties stipulated to the following:
1.

Respondent Youngstown Mines Corporation owns and operates
the mine in question.

2.

Respondent is engaged in the business of extracting coal.

3.

The inspector who issued the citation in this case is a
duly authorized representative of the Secretary of Labor.

4.

The DeHue Mine is subject to the provisions of the 1977
Federal Mine Safety and Health Act.

5.

The presiding administrative law judge has jurisdiction
to hear and decide this case.

6.

The citation at issue in this case was duly served on a
representative of the respondent and it may be admitted in
evidence.

7.

An appropriate civil penalty in this case will not adversely
affect respondent's ability to remain in business.

8.

Respondent's 1980 annual coal production was 259,001 tons.

9.

Respondent's history of prior assessed violations for the 13 month
period preceding the issuance of the citation in issue in this
case consists of 501 citations.

Citation 912344, 8/26/80, 30 CFR 75.400, states as follows:

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Combustible materials coal, coal dust, float dust, oil
and grease were allowed to accumulate on the 11 CM continuous
miner and the frames ·and electric apparatus O" inches 4"
inches in the 1 north west main section.
Petitioner's Testimony and Evidence
MSHA Inspector Ernest Mooney, confirmed that he inspected the
mine in question on August 26, 1980, and issued the citation charging
the respondent with a violation of mandatory safety standard 75.400.
He identified copies of the citation, the abatement, and his inspector 1 s
"narrative statement" which he filled out (Exhibit P-1). He testified
that the area where the citation issued was an active working section
and confirmed that he measured the coal accumulations inside the
continuous miner motor compartment with a standard ruler and that the
accumulations were "real black". He determined that the miner machine
was "hot" after opening the compartment and detecting heat coming out
of it, but he did not touch the hot machine. Section Foreman Cook was
with him at the time of the inspection, and someone told him that the
machine had been operated during the immediate previous shift, but he
could not recall who told him and he took no notes other than to write
up the citation.
Inspector Mooney testified that he believed the coal accumulations
which he cited had accumulated on the machine during previous shifts and
did not believe that they had "just occurred" shortly before his arrival
on the scene. The applicable accumulations clean-up plan required clean-up
"when needed", and he believed that mine management should have been
aware of the accumulations because each working shift in the mine
has a shift supervisor present. Although Mr. Mooney stated that the
section foreman may have informed him that the machine in question may
have "been down", since he took no notes he could not confirm this fact.
The citation was abated on August 27, 1980 by another inspector.
On cross-examination, Inspector Mooney stated that he left the mine
surface on August 26 at approximately 7:00 a.m., but was underground when
he issued the citation. The miner machine was backed away from the
working face and appeared to be located just outby the last open crosscut.
The face in question was the only working face on the section, and while
he observed the machine operator at the miner he could not recall what
he was doing. Although the machine was not energized, power was on the
trailing cable and the lights were on, but the motor was not running.
He indicated that the machine has protective shields over the motor
and cables, and he inspected both sides of the machine and detected
that the shield on the operator's side of the machine was missing.
The shields are usually installed on hinges so that they can be readily
raised to facilitate cleaning and inspection of the motor and cables, but
he did not know how many shields are required to be on the machine.

210

Inspector Mooney testified that he found accumulations of coal and
coal dust on both sides of the machine, and that on the side opposite
the operator he found that the coal accumulations were mixed in with
oil and grease in the motor compartment near the pump motor. He could
not recall whether anyone said anything to him about any mechanical
problems with the machine and he made no inquiries as to why the machine
had been backed away from the fact. The machine was removed from service,
and he remained on the section.
Inspector Mooney confirmed that at the time he observed the machine
coal was not being mined. He indicated that the mine operated on three
daily 8-hour shifts and that issued the citation on the second shift
which was from 4 p.m. to 12 midnight. At the time that he issued the
citation he believed that the miner had been used to mine coal at the
face during the preceding shift, and he stated that had the operator
been in the process of cleaning the machine at the time he observed it
he would not have issued the citation. It was his belief that the machine
needed cleaning, and that he issued the citation because of the presence
of the accumulations which he found and the fact that cleaning had not
been done. (Tr. 15-60),
Respondent's Testimony and Evidence
Paul Cook, presently employed by the respondent as an assistant mine
foreman, testified that at the time the citation was issued by Inspector
Mooney, he was employed as the section foreman. His previous experience
with the respondent includes service as a UMWA miner, member of the safety
department, and section boss. Mr. Cook stated that on the day the citation
issued he arrived on the section at approximately 4:30 p.m., and that
the previous shift foreman advised him that the continuous miner which
was cited by Mr. Mooney had a leaky hydraulic hose on the "off-side".
The machine was located just outby the last open break, and after checking
the faces Mr. Cook turned the machine power on to see what the problem
was. The motor ran for approximately 5 to 10 seconds when he detected
hydraulic oil spurting out of a two-inch return line which had burst.
Since the miner could not be operated without any hydraulic oil, he
assigned the miner operator and his helper to the job of cleaning up the
miner and he observed one shield missing from the motor panel at the
location where the hose had burst. Mr. Cook stated that the miner and
his helper were cleaning the oil accumulations around the motor area so
that an electrician could have access to the area to change out the
hose which had broken.
Mr. Cook testified that after directing that the machine be cleaned
up he telephoned for a replacement hose for the machine and as he left.
the area he encountered Inspector Mooney. He informed Mr. Mooney that the
machine "was down" and Mr. Mooney placed a red closure tag on it. Mr. Cook
then called outside and ordered that a cleaning machine be brought in
so that the machine could be cleaned up. He also indicated that the
machine uses a fire-resistant white emulsion oil which contains

211

approximately 40% water and that it is MSHA-approved. Although the
machine has no fire suppression devices, he stated that none are required
as long as the fire-resistant oil is used.
Mr. Cook identified a copy of the section foreman's report (Exhibit R-1)
which indicates that no coal was being loaded during the shift. He also
indicated that the mine operates two production shifts and that the third
shift is a maintenance shift. He confirmed that the miner was shut down
at 6 p.m., and he indicated that he was aware of the fact that Inspector
Mooney had issued other citations during his inspection of August 26,
and that they were all signed as being issued at 7:30 p.m.
On cross-examination, Mr. Cook identified the previous shift foreman
as Arlie Bush and he stated that the miner machine in question had not
operated at the face as of 3:30 p.m. on August 26. Mr. Cook did not
believe that the machine could have remained "hot" from that time until
7:30 p.m. when the citation was issued by Mr. Mooney. Mr. Cook conceded
that the shift report (Exhibit R-1) was filled out after the issuance
of the citation in question (Tr. 60-95).
Petitioner recalled Inspector Mooney in rebuttal, and he testified
that he is familiar with emulsion oil, but saw none sprayed all over
the miner on the day in question. In response to my questions, he stated
that he did not know whether the miner machine had a broken hose, and
at the time he looked into the motor compartment the engine was not
running. He also indicated that due to the packing of the assumulations
at a depth of some four inches inside the motor compartment, there is
no way that a broken miner hose
used for one shift could have caused
those accumulations over that one shift. He also did not believe that
all of the accumulations inside the machine could have occurred from
the immediate previous shift. When he first looked into the machine
and observed the accumulations, the miner operator was present, and after
he (Mooney) "tagged" the machine, he then encountered Mr. Cook (Tr. 95-100).
On cross-examination, Mr. Mooney stated that the packed accumulations
led him to believe that the coal was mixed with oil and that it packed
in over a period of time. He conceded that he did not use the term
"packed" or "compacted" in the citation or his inspector's statement.
He also stated that had he observed only loose coal on the outside of
the machine which had just been idled he would not issue a citation, but
if he finds it inside the machine and there is an indication that it has
accumulated, he would (Tr. 101-102). He explained that the machine in
question had not accumulated coal over the one shift but that it had
been left from one shift to another without being cleaned. Under the
clean-up plan, the machine should be cleaned "as needed" and that
judgment is made by the section supervisor. In response to bench questions,
Mr. Mooney summed up the crux of the citation he issued as follows
(Tr. 103-104):

212

JUDGE KOUTRAS: Mr. Mooney, I got the distinct impression
what your concern was is that you saw evidence that this four inches
of accumulation that had built up inside on the motor of the
continuous miner had been a condition that existed for God knows
how many previous shifts and nobody ever paid any attention to
it, because it was accumulations of four inches.
I got the distinct impression from your testimony that
it had been something that had been built up and built up and
built up and caked on there combined with oil and what have you
that made it adhere together and it was caked on there four inches.
And when Mr. Cook discovered the broken hydraulic hose, he had to
have his people go in and clean all that stuff off there before
they could make repairs.
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

Yes, sir.
Is that what it is?
Yes.

JUDGE KOUTRAS: Now, the story I'm getting from Mr. Cook is
no, that's not the case. The accumulations the inspector was
talking about are something that just happened from the natural
cutting action of the machine. "It happens all the time, Judge.iv
Sure, he measured four inches. We have six inches, we have twelve
inches while we're operating.
THE WITNESS: He had to remove the coal. What he was saying,
I think, he had to remove the coal before he could repair the machine,
and the coal dust out of the compartment.
JUDGE KOUTRAS: How about this grease and oil, did you
attribute that to something other than the oil leak when you
looked at it?
THE WITNESS: No, sir, I thought that was over a period of
time; really, I did.
JUDGE KOUTRAS: So, the grease and oil you're talking about
in your citation is not the same hydraulic oil Mr. Cook is talking
about?
THE WITNESS: No. You know, I didn't know about the busted
hose, the burst hose.
Findings and Conclusions
Fact of Violation
Respondent is charged with a violation of the provisions of 30 C.F.R.
75.400, which provides as follows: 11 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 electric equipment therein."
§

213

With respect to the question as to whether the evidence adduced in
this proceeding supports a finding that the respondent violated the
provision of 30 C.F.R. § 75.400, as charged by the inspector, I take note
of the fact that the Commission, in Old Ben Coal Company, 1 -FMSHRC 1954,
1 BNA MSHC 2241, 1979 CCH OSHD 24,084 (1979), held that "the language
of the standard, its legislative history, and the general purpose of the
Act all point to a holding that the standard is violated when an accumulation
of combustible materials exist," 1 FMSHRC at 1956. At page 1957. of
that decision, the Commission also stated that section 75.400 is "directed
at preventing accumulations in the first instance, not at cleaning up
the materials within a reasonable period of time after they have accumulated."
See also, MSHA v. C.C.C.-Pompey Coal Company, Inc., Docket No. PIKE 79-125-P,
decided by the Commission on June 12, 1980, remanding the case to the judge
to apply its holding in Old Ben.
In its post-hearing brief, petitioner argues that the testimony
by the inspector, as well as the testimony of respondent 9 s section foreman
Cook supports the inspector's findings that accumulations of coal, coal
dust, and grease and oil in the inner workings of the continuous miner
in question did in fact exist at the time the inspector issued his citation,
In addition, petitioner relies on the Commission's decision in Secretary
of Labor v. Old Ben Coal Company, 2 MSHC 1017 (1979), and Secretary of Labor
v. C.C.C.-Pompey Coal Company, Docket No. PIKE 79-125-P, decided by the
Commission on June 12, 1980, remanded to Judge Steffey for application
of the principles set forth in Old Ben.
Petitioner asserts that the fact that the continuous miner may
have been out of service makes no difference since the standard simply
prohibits accumulations on electrical equipment and there is no requirement
that such electrical equipment be in service or even energized. Even so,
on the facts in this. case, petitioner asserts that the continuous miner
trailing cable had power and that the lights were on. In addition, petitioner
points to the fact that even accepting the testimony of foreman Cook
that the machine had a broken hose, Inspector Mooney tagged it out and
took it out of service when he looked inside the machine and found the
accumulations which he cited, and that the inspector took it out of
service because in his judgment it needed to be cleaned.
In its post-hearing brief, respondent cites the cases of Ziegler
Coal Company, 3 IBMA 366 (1974), and Plateau Mining Company, 2 IBMA 303
(1973), in support of its argument that c:ltations should be issued for
accumulations of oil and grease on a piece of equipment which had been
taken out of service and was being cleaned at the time the violation is
cited. Even though the continuous mining machine in the instant case
may have been defective because of the presence of accumulations of
grease and coal, respondent maintains that it has demonstrated by a
preponderance of the evidence that the miner was under repair (being
cleaned), and in support of this conclusion respondent relies on the
testimony of Mr. Cook as well as his shift report (Exhibit R-1).

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Respondent also argues that coal accumulations on mining machines
used at the face during mining are unavoidable and are inherent in the
nature of the coal mining business. While conceding that the intent of
section 75.400 is to prevent coal accumulations which are left from shift
to shift without being cleaned up, respondent nonetheless maintains that
in this case the miner was down and being cleaned at the time the inspector
observed it. Citing the testimony of section foreman Cook, respondent
maintains that he had a clearer recollection of the events in question
than did Inspector Mooney.
Respondent's reliance on the Ziegler and Plateau decisions by the
former Board of Mine Operations Appeals as a defense to the citation issued
in this case is rejected. Those cases dealt with withdrawal orders
issued by mine inspectors for defective equipment. In the instant case,
the respondent is charged with a violation of section 75.400, which deals
with accumulations of combustible materials and not with a citation
for any defects in the machine. I conclude and find that the Conunission 1 s
decisions in Old Ben and C.C.C.-Pompey Coal Company are controlling and
applicable to the facts presented in this case. In Old Ben while the
Conunission accepted the fact some spillage of
materials
may be inevitable in mining operations, it also found that an accumulation
of such materials were in fact present and did exist in that case and
that the mine operator did not dispute those facts.
I accept the testimony of Inspector Mooney that he tagged the
machine out after finding the accumulations of coal, coal dust, grease
and oil caked around the engine compartment, and I conclude and find that
Inspector Mooney took that course of action because of the accumulations
and not because of any broken hose. Although a broken hose may have
contributed to the caking of the accumulations, the amounts measured by
Mr. Mooney reasonably support an inference that the accumulated
combustible materials had been permitted to exist for at least several
working shifts prior to his inspection. In this case, while the record
reflects that the shift foreman prior to Mr. Cook's shift purportedly
told Mr. Cook about a defective hydraulic hose on the 11 off-side 11 of the
machine, and the machine operator was at or near the machine when the
inspector looked into the motor compartment, neither of these individuals
were produced by the respondent at the hearing to tes
Although
Mr. Cook's "foreman's report", exhibit R-1, reflects that the miner machine
was down at the start of his shift from 4:30 to 6:00 p.m. because of a
"broken suction hose", it also reflects that it was "still down" from
6:00 to 11:15 p.m., because the inspector believed it needed cleaning.
As correctly pointed out by petitioner in its brief, Mr. Cook's report
was filled in after the fact, and the previous shift foreman was not
called to substantiate any claims by the respondent that the miner had
been idled during the day shift because of any broken hose.
After careful review and consideration of all of the testimony and
evidence adduced in this case, I conclude and find that the petitioner
has the better part of the argument and that it has proved a violation
of section 75.400 by a preponderance of the evidence and the citation is
AFFIRMED.

215

Size of Business and Effect of Civil Penalty on Respondent's Ability to
Remain in Business.
The parties stipulated that the assessment of an appropriate civil
penalty in this case will not adversely affect the respondent's ability
to remain in business, and I adopt this as my finding in this case.
With regard to the respondent's size of business, the parties stipulated
that respondent's annual 1980 coal production was approximately 259,001
tons, and I consider this to be a medium size mining operation.
In its post-hearing brief, petitioner's counsel argues that I
should consider the annual production tonnage of 3,258,781 for the
Youngstown Mine Corporation, the parent company,in any determination of
the size of the respondent. This argument is rejected. Petitioner
stipulated to respondent's annual production during the relevant time
period and counsel specifically stated at the hearing that he was in
agreement that an annual production of 259,000 would
the mine in
the small or medium range (Tr. 7).
Good Faith Compliance
The record reflects that respondent took immediate steps to abate
the citation and to assign men to clean the accumulations from inside
the miner in question. This is indicative of rapid good faith compliance
on respondentvs part and that fact is reflected in the civil penalty
which I have assessed for the citation in question.
Gravity
Although I consider accumulations of combustible materials on
electrical machines or components to be serious matters, on the facts
presented in this case the gravity of the conditions cited is tempered
somewhat by the fact that the miner machine was not in operation and
that coal was not being mined. In addition, petitioner has not rebutted
the testimony by the respondent that the fire resistant emulsion oil
used in the miner does afford some protection against any possible fire.
Under the circumstances I conclude that the gravity connected with this
citation was low.
Negligence
Since I have concluded that the accumulations cited by the inspector
were permitted to exist over a period of time, I must also conclude
that the respondent was negligent for failure to exercise reasonable
care to correct the condition resulting in the violation. Accordingly,
I find that the violation resulted from respondent's ordinary negligence.
History of Prior Violations
The parties stipulated that for the 13-month period prior to
the issuance of the citation in question respondent had a history of

216

501 assessed violations. Although petitioner presented no details
or arguments concerning this history, for a mine of its size, 501
violations over a span of 13 months is not a good compliance record.
Accordingly, this reflected in the penalty assessment made by me in
this case.
Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty assessment in the amount of $1,000 is
reasonable and appropriate for the citation which I have affirmed, and
respondent IS ORDERED to pay the assessed penalty within thirty (30)
days of the date of this decision and order. Upon receipt of payment
by the petitioner, this case is DISMISSED.

~t~
~~ative
p/

Law Judge

Distribution:
David Bush, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA lql04 (Certified Mail)
Roger S. Matthews, Esq., Youngstown Mines Corp., 3 Gateway Center,
9 North, Pittsburgh, PA 15263 (Certified Mail)

217

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

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

Civil Penalty Proceeding
Docket No. WEVA 81-380
A.O. No. 46-01407-03091V

v.

Olga Mine

OLGA COAL COMPANY,
Respondent
DECISION
Appearances:

David Bush, Attorney, U.S. Department of Labor,
Philadelphia, Pennsylvania, for the petitioner; Roger S.
Matthews, Esquire, Pittsburgh, Pennsylvania, for the
respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a proposal for assessment of civil penalty
filed by the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 820(a), ·
charging the respondent with one alleged violation of mandatory safety
standard 30 C.F.R. 75.400. Respondent filed a timely answer in the
proceedings and a hearing was held on November 17, 1981, in Charleston,
West Virginia, and the parties appeared and participated therein.
Issues
The principal issues presented in this proceeding are (1) whether
respondent has violated the provisions of the Act and implementing
regulation as alleged in the proposal for assessment of civil penalty
filed in this proceeding, and, if so, (2) the appropriate civil penalty
that should be assessed against the respondent for the alleged violation
based upon the criteria set forth in section llO(i) of the Act.
In determining the amount of civil penalty assessments, section
llO(i) of the Act requires consideration of the following criteria:
(1) the operator's history of previous violations, (2) the appropriateness
of such penalty to the size of the business of the operator charged,

218

(3) whether the operator was negligent, (4) the effect on the operator's
ability to continue in business, (5) the gravity of the violations, and
(6) the demonstrated good faith of the operator in attempting to achieve
rapid compliance after notification of the violations.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977, Pub. L. 95-164,
30 U.S.C. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 U.S.C. § 820(i).

3.

Commission Rules, 29 C.F.R. & 2700.1 et~·
Discussion

Citation 0655868, 12/29/80, 30 CFR 75.400, states as follows:
3 West 034 Section - Loose dry coal was allowed to
accumulate along the active shuttle car haul road beginning at the loading ramp and extending inby for a
distance of approximately 200 feet. The coal measured
from 4 to 12 inches in depth.
Testimony and Evidence Adduced by the Petitioner
MSHA Inspector Aubrey T. Castanon testified as to his background and
confirmed that he conducted an inspection at the mine in question on
December 29, 1980, and that he issued Citation 0655868 after finding
accumulations of dry loose coal and coal fines in the 3 west section
beginning at the ramp loading point and extending inby to the pillar
block which was being mined. He measured the accumulations with a standard
ryler and they ranged from four to twelve inches in depth (Exhibit P-1,
Tr. 6-9). He took notes of the conditions he observed, and stated that
during the inspection he discussed the conditions cited with respondent's
mine safety inspector Jim Bayldr, and his notes reflect that Mr. Baylor
could not understand "why the dayshift left the roadway in the shape
it is in" (Tr. 11).
Inspector Castanon identified a copy of his inspector's statement
which he filled out at the time he issued the citation and he confirmed
that the roadway which he cited was an active working area of the mine.
He believed that mine management was negligent because the area where the
accumulations were found was the only roadway from the ramp to the pillar
being mined and that the conditions should have been obvious to the
section foreman or pre-shift examiner walking the area (Tr. 12). Mr.
Castanon stated further that at the time he observed the conditions the
shift had begun and eight men were working in the section. He believed
the accumulations of coal presented a possible fire hazard, and energized
shuttle car cables would be lying in the roadways where the accumulations
were present (Tr. 14-15).

219

Mr. Castanon stated that clean-up operations began at approximately
five p.m. and were completed by 4 a.m., December 30, 1980. Approximately
three shuttlecars of coal were loaded just in front of the -ramp to abate
the citation and the abatement efforts were confirmed by company safety
inspector Aaron Charles. Since the abatement took approximately 11 hours,
Mr. Castanon believed the coal accumulations were extensive. Mr. Castpnon
stated that mine management representatives, including the mine superintendent
and foreman, discussed the matter with him during the abatement process
and that Mr. Baylor advised him that he had been on the section during the
previous day shift, had noticed the accumulations and had instructed
the evening shift section foreman to back the continuous mine up to the
ramp and to clean the roadway but that this had not been done at the time
he arrived on the section. He also stated that Mr. Baylor had
with his decision to issue the citation and that his notes confirm this
fact (Tr. 17-18).
On cross-examination, Inspector Castanon confirmed that the mine
in question operated on three shifts; namely, the 11hoot-owl" shift from
11:00 p.m. to 7:00 a.m., the day shift from 7 to 3 p.m., and the evening
shift from 3 p.m. to 11 p.m. He confirmed that he observed someone around
the ramp area when he first arrived on the section the day of his inspection,
and that the person was "just sitting" (Tr. 24). He could recall no
one shovelling coal or cleaning in the area. He did recall some individuals
working around the continuous miner which was facing towards the face,
but he could not recall what the individuals were doing (Tr. 26-27).
He also observed a shuttle car parked at the ramp area facing south, and
a second shuttle car parked at the first check curtain to the east of
the ramp area (Tr. 29). He confirmed the fact that he went to the face
area to observe the roof conditions, and later came back and issued the
coal accumulations citation after looking over the area and making his
measurements (Tr. 30). The deepest accumulations consisting of 12 inches
were present at the ramp area, and the four inches were measured along
the remaining area for approximately 200 feet continuously from the ramp
to the split of the two blocks of coal, outby the area where the miner
was parked and towards the face (Tr. 32).
Mr. Castanon testified that a
citation was issued on the continuous
miner, and he vaguely recalled being told that the miner machine was broken
down (Tr. 34). However, his notes do not reflect any details concerning
the breakdown of the machine. He stated that the usual method of cleaning
accumulations in the mine was by means of scoops, but he could not· state
whether this was the means used in this case since he had not been at the
mine for some time (Tr. 35). Had he observed cleaning in process with the use
of a continuous mining machine only, he would still have issued a citation
because he does not believe that a mining machine can do an adequate
clean-up job because of the fact that the machine pan cannot clean up the
middle of the roadway. The ramp area must be cleaned by shovel and the
continuous miner could not adequately clean the ramp and the accumulations
were continually being run over and packed down by the machine (Tr. 35-37).

220

Mr. Castanon testified that he recalled one power cable lying on
the shuttlecar roadway, but could not recall which one. He also indicated
that the ribs were solid and could recall no rib sloughing problems.
He stated that the cleanup program required that accumulations be cleaned
up as needed and reiterated his belief that the day shift and evening
shift foremen should have been aware of the accumulations which he found,
and he could not recall being told that the miner was parked by the ramp
to facilitate clean-up (Tr. 40).
On redirect, Mr. Castanon testified that he saw no evidence of anyone
cleaning up when he arrived on the section, and had he observed clean-up
taking place he would not have issued a citation (Tr. 41-42). He also
believed that the accumulations had occurred over more than two shifts
(Tr. 43).
In response to bench questions, Mr. Castanon conceded that had the
continuous mining machine been in the process of cleaning the roadway
when they arrived on the scene, he would still have issued the citation
because the machine pan could not reach the mine floor and when the
respondent attempted to use it for clean up it was riding on the top of
the coal and could not reach down far enough to clean up the accumulations
lying on the raodway (Tr. 50). He reiterated that he issued the citation
because of the presence of coal accumulations and the fact that the
respondent allowed them to exist without making any effort to clean them
up (Tr. 53).
In response to bench questions, Inspector Castanon stated that he
observed no splices in the cables which were present in the area of the
accumulations and that while he was present during the abatement three
shuttle cars of coal were cleaned up from the roadway but little from
the ramp. He also stated that the accumulations were black and he believed
they resulted from overloading of the shuttle cars over a period of time
(Tr. 54-55).
Respondent's Testimony and Evidence
Harry Litteral testified that he was the 3 West second shift
(evening) section shift foreman on December 29, 1980, when the
citation was issued by Inspector Castanon. At the beginning of the shift
he had a discussion with the previous shift foreman, Arthur Christian, who
advised him that coal was beginning to accumulate on the shuttlecar
haulway, that the number one pillar needed to be "broken off", and that
additional dusting was needed. The mine superintendent instructed him
to back the continuous mining machine to the ramp and to begin cleaning
the coal accumulations. However, after discovering that the No. 1 pillar
"was working", he decided to break it off and to install timbers for roof
support to keep the roof from "riding back" to where coal would have to
be mined. He then moved the miner out so that the shuttlecar could travel
to the ramp to obtain roof support supplies. He then encountered a
broken water hose on the miner water sprays and he proceeded to make
those repairs near the ramp when Inspector Castanon arrived on the scene
(Tr. 56-63) .

221

Mr. Litteral testified that prior to the arrival of the inspector,
he had one of his miners assigned to ventilation work, one man cleaning
at the ramp, two roof halters and two timber men timbering the No. 1
pillar block, and two men at the continuous mining machine helping him
repair the water hose break. Mr. James Baylor was with the inspector,
and Mr. Baylor advised him that the miner was dirty and needed
cleaning. Mr. Litteral then assigned a man to clean the machine and advised
Inspector Castanon that he had no intention of loading coal until the
roadways were cleaned up. While clean up of the roadway was in progress,
the inspector advised him that it was not doing the job, and clean up
then continued by hand. Mr. Littral conceded that the miner pan will
not clean the entire roadway if it elevated and shovels must be used
(Tr. 66-67).
Mr. Litteral stated that coal was loaded out only for clean up during
his shift and when he returned the next day the citation was abated. He
believed that rib sloughing contributed to the accumulations, and that
spillage does occur when the shuttle cars are "too heavy" (Tr. 69).
He indicated that the coal was soft that the movement of the shuttle
car around the corner by the ramp, and the cable moving about contributed
to the dispersement of the coal accumulations on the roadway (Tr. 70).
No coal was mined during the shift and he intended to clean up first
before beginning to mine coal (Tr. 71). He also stated that he assigned
men to clean and rock dust and identified a copy of the mine cleanup
program (Exhibit R-3). He stated that numbered paragraph four of the plan
was the applicable procedure for cleaning the shuttlecar roadway in question
(Tr. 73).
On cross-examination, Mr. Litteral confirmed that the previous
shift foreman had informed him that coal was beginning to accumulate
on the shuttlecar roadway and that the accumulations extended for the
approximate 200 foot distance as stated by Inspector Castanon (Tr. 74).
He also conceded that the accumulations could not have occurred between
his shift and the previous shift. He also reiterated that rib sloughing
was a constant problem and that this would account for coal accumulations
in the roadway and the cleanup program requires daily attention to
clean up and that "you work on it all the time" (Tr. 76). Road bottom
conl.itions dictate whether the accumulations can effectively be cleaned
by use of the miner machine and a scoop might be better since it has a
sharper blade (Tr. 77).
James Baylor testified that at the time the citation issued he
was employed at the mine as a safety assistant and that he accompanied
Inspector Castanon during his inspection. Mr. Baylor stated that while
on the section he encountered section foreman Litteral and advised him
that he needed to clean up coal accumulations on the continuous miner.
Inspector Castanon was in the area inspecting the faces and the roadway.
He then decided to issue the citation for coal accumulations and at that
point in time Mr. Baylor advised the shift foreman that the citation
had issued and he assigned additional men to clean them up (Tr. 89).

222

'When it was determined that clean up could not be effectively accomplished
by using the continuous miner, additional shovels were brought to the area
and the accumulations were shovelled into shuttle cars (Tr. 90).
Mr. Baylor did not see accumulations to the depth of a foot, and he indicated
that rib sloughing does cause accumulations at the base of the rib.
He observed the accumulations in the roadway and indicated that they
were caused by the shuttle cars driving on the roadway and the slack cable
that moves about as the shuttle cars travel the roadway. He observed
no one pulling down or cleaning up the coal ribs and he explained that
this could not be done because it would widen the width of the roadway
and cause roof control problems (Tr. 91-93).
On cross-examination, Mr. Baylor confirmed that he told Inspector
Castanon that he could not understand why the day shift left the accumulations
on the roadway, and he conceded that it was unusual for the shift to be
left 'in such a condition (Tr. 94). He admitted that it "was in bad shape"
but denied that there were 12 inches of coal accumulations all along the
roadway, but he did not question that 12 inches were present near the
anchoring point of the shuttle car trailing cable (Tr. 95). Mr. Baylor
took no measurements of the accumulations and he could not recall whether
he was present when the inspector made his measurements. Although
Mr. Baylor stated that he took notes, he did not have them with him at
the hearing (Tr. 96),
Findings and Conclusions
Stipulations
The parties stipulated to the following (Tr. 4-5):
1.

Olga Coal Company owns and operates the Olga Mine.

2.

Olga Coal Company is involved in the extraction of
raw coal from its natural deposits in its operation
at the Olga Mine.

3.

Inspector Aubrey T. Castanon was at all times relative
thereto an authorized representative of the Secretary
of Labor.

4.

Olga Coal Company and the Olga Mine is subject to the
Mine Safety and Health Act of 1977.

5.

The Administrative Law Judge has jurisdiction over these
proceedings.

6.

The subject citation and termination thereof were properly
served by a duly authorized representative of the Secretary
of Labor upon an agent of Olga Coal Company at the dates,
times and places stated therein and may be admitted into
evidence for the purpose of establishing their issuance
but not for the truthfulness or relevancy of the statements
asserted therein.

223

7.

The assessment of an appropriate civil penalty in this
proceeding will not affect Olga Coal Company's ability
to remain in business.

8.

The appropriateness of the civil penalty, if any, to
the coal operator's business should be based on the
fact that in 1980 the company had an annual tonnage
of eight hundred thousand twenty (800,020) production
tons and Olga Mine had an annual tonnage of five hundred
ninety-eight thousand seven hundred ten (598,710) production
tons.

9.

In the twenty-four month,period prior to the issuance
of the subject citation, the operator had a history of
five hundres thirty-six assessed violations.

Fact of Violation
Respondent is charged with a violation of the provisions of 30 C.F.R.
"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 electric equipment therein."

§ 75.400, which provides as follows:

In its post-hearing brief, petitioner argues that the testimony of
the inspector who issued the violation, as well as the testimony of the
section foreman and respondent's safety assistant, support the fact
that the cited accumulations did in fact exist as detailed by the inspector
both in his testimony and the citation which he issued, and relying on
the decision by the Commission in the case of Secretary of Labor v.
Old Ben Coal Company, 1 MSHC 2241-2243, petitioner asserts that the citation
should be affirmed.
In its post-hearing brief, respondent takes the position that a
literal application of section 75.400 would in effect prohibit all underground coal mining since spillage and collection of coal left in shuttle
cars and mine cars between turns and during work stoppages would all
technically be violations of the standard. Respondent maintains that
the intent of section 75.400 is to prohibit combustible materials from
accumulating in certain areas of the mine shift to shift without any
effort being made to clean them up. This being the case, respondent argues
further that the active workings are by their very nature clean, being
cleaned, or in the process of accumulating combustible materials.
In this case, the respondent's defense is bottomed on an assertion
that the inspector could not estimate how long it took to accumulat,e
the amount of materials which he cited, and that the respondent was in
the process of taking remedial action to clean up any accumulations that
existed in the areas in question. Further, respondent maintains that
it was its intention to clean up the haul road and ramp raea before
mining any coal. Respondent states that its clean-up plan permits the
use of continuous mining machines to clean up active roadways, and that
even though a scoop used to clean the roadway in question was not available,
the use of the mining machine was proper and the inspector acted
prematurely in issuing the citation before giving the respondent time
to clean up the areas cited.

In Old Ben Coal Company, 1 FMSHRC 1954, 1 BNA MSHC 2241, 1979
CCH OSHD 24,084 (1979), the Commission held that "the language of the
standard, its legislative history, and the general purpose of the Act
all point to a holding that the standard is violated when an accumulation
of combustible materials exist," 1 FMSHRC at 1956. At page 1957 of
that decision, the Commission also stated that section 75.400 is "directed
at preventing accumulations in the first instance, not at cleaning up
the materials within a reasonable period of time after they have
accumulated." See also, MSHA v. C.C.C.-Pompey Coal Company, Inc.,
Docket No. PIKE 79-125-P, decided by the Commission on June 12, 1980,
remanding the case to the judge to apply its holding in Old Ben;
Turning to the evidence and testimony adduced in this case, I
conclude and find that the preponderance of the evidence establishes the
existence of the accumulations of loose dry coal and coal fines as
described by the inspector along the haulage road and ramp area in question.
The detailed testimony by the inspector, supported by his notes and the
measurements he took to support the citation more than adequately establish
the conditions he described both on the face of his citation as well
as in his testimony during the hearing. The inspectorvs testimony that
approximately three shuttle cars of coal were loaded out during the
abatement process which took approximately 11 hours is indicative of
the fact that the accumulations were rather extensive. Further, even
though the inspector had no precise idea as to how long the accumulations
were there, he believed that they existed for over two shifts and he saw
no clean-up taking place at the time of his inspection. As stated during
the hearing, the inspector issued the citation after finding accumulations
of coal which he believed were permitted to exist without any efforts
at cleaning them up (Tr. 53).
In view of the foregoing, I conclude and find that petitioner has
established the fact of violation in this case, and I accept its arguments
in support of the citation, and reject the arguments advanced by the
respondent in its defense. The citation is AFFIRMED.
Size of Business and Effect of Civil Penalty on Respondent's Ability to
Remain in Business.
The parties stipulated that the assessment of an appropriate civil
penalty in this case will not adversely affect the respondent's ability
to remain in business, and I adopt this as my finding in this case.
With regard to the respondent's size of business, the parties stipulated
that respondent's annual coal production was approximately 598,710 tons,
and I consider this to be a medium-to-large size mining operation.
Good Faith Compliance
The record reflects that the inspector fixed the initial abatement
time as twelve noon on December 31, 1981, but the termination notice
reflects that the conditions were abated and the citation terminated
at twelve noon on December 30, 1981. In addition, the testimony presented

225

by all of the witnesses reflects that respondent exhibited rapid
compliance in cleaning up the accumulations. Under the circumstances,
I find that resp6ndent exhibited rapid abatement in cleaning up the cited
accumulations and this is reflected in the penalty assessed by me in
this case.
Negligence
The extent of the accumulations which the inspector found in this
case suggests more than just a "beginning" of accumulations on the haul
road and ramp as argued by the respondent in its brief. In addition,
on the facts of this case, I reject respondent's attempt to defend the
existence of the accumulations on the basis of the language found in its
clean-up program which states that accumulations on each shift need only
be cleaned up
needed". In my view, the "need" for clean-up had
long passed by the time the inspector arrived on the scene and issued
his citation. I accept the inspector's testimony that the accumulations
existed for more than two shifts, and since the roadway in question
was one traveled by miners and supervisory personnel I believe that mine
management should have known of the accumulations earlier than is suggested
by its post-hearing arguments and that its failure to exercise reasonable
care to correct the conditions which caused the violation and which
respondent knew or should have known amounts to ordinary negligence.
Gravity
Although it is true that coal was not being mined at the time the
conditions were observed by the inspector and the one power cable which
may have been lying on the accumulations was not energized, the fact is that
coal accumulations which are not cleaned up present a serious potential
for a mine fire. In this case, while the probability of an inginition
was low because mining was not taking place and the continuous miner
was down and deenergized due to some repair work, the fact is that men
were on the section and the existence of accumulations of combustible
coal and coal fines presents a hazard to those miners. Under the circumstances, I conclude that the violation which I have affirmed is serious.
History of Prior Violations
The parties stipulated that in the 24 month period prior to the
issuance of the citation in question, respondent had a history of 536
assessed violations. In its post-hearing brief, petitioner alludes to
a computer print-out showing a breakdown of assessed violations of
section 75.400 by the respondent, and it was submitted on January 26, 1982.
The print-out shows 86 paid assessments by the respondent for violations
of section 75.400, during the period December 29, 1978 to December 28, 1980.
For a mine of its size, I conclude that respondent's past history
of assessed violations is not a particularly good one. Although petitioner
has submitted no details concerning the 86 prior citations concerning

226

accumulations citations for violations of section 75.400, the repetitive
nature of these citations should alert the respondent to the fact that
its clean-up program may be in need of further attention. I conclude
that respondent's history of.prior violations is such as to warrant
an increase in the original penalty assessment made in this case and
this is reflected in the penalty which I have assessed for the violation
in question.
Penalty Assessment and Order
On the basis of the foregoing findings and conclusions, and taking
into account the requirements of section llO(i) of the Act, I conclude
and find that a civil penalty in the amount of $1200 is reasonable and
appropriate for Citation No. 0655868, December 29, 1980, 29 CFR 75.400~
and respondent IS ORDERED to pay the penalty within thirty (30) days
of the date of this decision and order. Upon receipt of payment by
the
, this matter is DISMISSED.

~K~a~
Administrative Law Judge

Distribution:
David Bush, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Roger S. Matthews, Esq., Youngstown Mines Corp., Olga Coal Co., 3
Gateway Center, 9 North, Pittsburgh, PA 15263 (Certified Mail)

227

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

FEB 4 1982

Civil Penalty Proceedings

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

Docket No. CENT 81-200-M
A.O. No. 41-02664-05003

v.

Docket No. CENT 81-201-M
A.O. No. 41-02664-05004

METRO ASPHALT COMPANY,
Respondent

Leyendecker Paving Pit & Plant
DECISION

Appearances:

Eloise Vellucci, Esq., Office of the Solicitor, U.S.
Department of Labor, Dallas, Texas, for the Petitioner;
Mr. Burney T. Sullinger, Corpus Christi, Texas, for
the Respondent.

Before:

Judge Stewart

This is a proceeding filed by the Secretary of Labor, Mine Safety
and Health Administration (MSHA), under section llO(a) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 820(a) (hereinafter the
Act), l./ to assess civil penalties against Metro Asphalt Company. The
hearing was held in Laredo, Texas on September 29, 1981.
The parties stipulated in regard to the history of previous
.violations by Metro Asphalt that the number of violations found in the
two years previous to the inspection were few and that the size of
Metro Asphalt can be considered small. In the absence of evidence
to the contrary it is found that the penalties assessed will not affect
the ability of Metro Asphalt to continue in business.

l/

Section llO(i) of the Act provides:
"(i) The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary 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. In proposing
civil penalties under this Act, the Secretary may rely upon a sunnnary
review of the information available to him and shall not be required to
make findings of fact concerning the above factors."

228

CENT 81-201
Citation No. 171466 (Exhibit P-1)
The inspector noted in the citation that:
"The parking brakes on the 950 front end loader at the
pit were inoperable. The front end loader operator is
continuously loading haul trucks and employees were
observed out of the haul trucks. The front end loader
could roll forward or backward when the operator was
not on the loader, and the loader could roll over an
employee and seriously injure him.
30 CFR 56.9-3 provides that:
"Powered mobile equipment shall be provided with
adequate brakes."
The inspector checked the parking brakes by having the operator
put the brakes on and then try to go forward. The loader kept on going
forward indicating that the parking brakes were not operable. The terrain
was on a slight incline. Putting the machine in gear will not stop the
machine from rolling while parked because if hydraulic pressure is lost
it can roll without the brakes being on.
The normal operating foot brakes were functioning properly but
the parking brakes did not operate. 30 CFR 56.9-32 requires that dippers
buckets, scraper blades and similar moving parts shall be secured or
lowered to the ground when not in use. They may be either lowered
to the ground or secured to prevent injuries in the event these moving
parts should fail. Although it is safer and the equipment is not so
likely to roll when the bucket is down the lowering of the moving parts
to the ground is not an alternative to the parking brakes.
The equipment operator testified that he put the bucket down and
pulled the hand (parking) brake when the equipment was parked. He does
not get off the front end loader while the machine is still running.
He parks it on level ground and puts it in first gear. At the time of
the inspection the machine was on an incline and had to go on an incline
to get to the stock pile.
Five persons (independent contractors) were congregated in the shade
of the stock pile behind the machine where it would have to go backwards to unload. It is probable that the machine could roll over a
person resulting in a fatality.
The operator (Metro Asphalt) should have been aware of the condition
if the foreman, a competent designated person, or Mr. Leyendecker
(President of Leyendecker Materials Inc., who was there most of the time)

229

were doing their normal check ups as required but the condition was
not obvious. It was necessary to check the brakes to discover the
defective parking brakes. The negligence of the operator was therefore
slight.
Metro Asphalt demonstrated good faith in achieving rapid compliance
after notification of the violation. The loader was removed from service
immediately to get it repaired. The citation was terminated by another
inspector.
Citation 171467 (Exhibits P-2)
The inspector noted in the Citation that:
"The head pulley on the No. Seven conveyor was not
guarded. The pulley was approximately about four
feet above ground level where persons servicing
or doing maintenance could get entangled and receive
serious injuries. There was one person in the area
who does maintenance and service and clean-up. 11
30 CFR 56.14-1 provides that:
"Gears: sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed moving machine
parts which may be contacted by persons, and which may
cause injury to persons, shall be guarded."
The head pulley did not have a guard and a person could get entangled
by falling or tripping. A shovel could get caught between the belt
and the pulley and drag the workman in. The pulley was positioned about
four feet above the ground. Inspector Herrera believed that it was a
self cleaning pulley with ten or twelve wings extending from the hub
creating multiple pinch points. Mr. Richard Leyendecker testified that
it was not a self cleaning pulley. Since self cleaning pulleys were
installed only at the tail end of conveyors
the testimony of Mr.
Leyendecker is accepted as more credible; however the head pulley still should
have been guarded since it posed a hazard. The head pulley was a drumtype roller with the ends closed which resulted in fewer pinch points.
There were one or two persons in a "shacktt about 40 feet from the
head pulley. They clean up and do service maintenance in the area but
were not observed actually working at the time of the inspection. The
hazard existed only when the equipment was in operation.
The loader operator and the control operator are usually in the area.
The plant equipment is electrically controlled by the operator who is
not physically next to the equipment while the plant is in operation.
Company policy is that all equipment is shut down for maintenance,
servicing, and clean up. The probability is slight that one of the two

230

persons in the general vicinity could become entangled in the pulley
resulting in the loss of an arm or a fatality.
The record establishes ~hat the operator was negligent since he
should have known that the head pulley had no guard. The condition
was obvious and in plain sight. The inspector had discussed head and
tail guards since 1977 with Mr. Leyendecker, who was often in the area.
Metro Asphalt demonstrated good faith in
rapid compliance
after notification of the violation. Mr. Leyendecker had the welder
start working on the guards immediately. The citation was terminated
by another inspector.
Citation 171468 (Exhibit P-3)
The inspector noted on the citation that:
"The guard on the feed conveyor to the No. 3
shaker was not extended sufficient
reaching behind guard and becoming
and receiving serious injuries. There was one
employee in the area who did maintenance and
11
.
service
an d c 1 eanup.
The inspector was unable to remember this
condition and
no other evidence sufficient to prove a violation was adduced. The
citation is accordingly vacated. 2
Citation 171469 (Exhibit P-4)
The inspector noted on the citation that:
"The V-belt drive on the Telesmith shaker was not
provided with a guard. There was an elevated travel
way next to the drive where persons could fall against
and become entangled and receive serious injuries.
There was one person who did service and maintenance
on equipment."
2/ Where asked to explain the circumstances the
testified:
1 can read here, but I cannot recall this particular incident. A feeder
conveyor, I mentioned the whole feeder conveyor; now, I did not mention
the head or the tail pulley and this kind of throws me off. 11 When asked
what the guard on the pulley looked like he testified:
is where my
memory fails me, becuase this is talking about guarding a whole feeder
and not a tail pulley or a head pulley. So I've been trying to picture
in my mind what it was, but I can't. I can 1 t recall." He also stated
in a forthright manner that he did not put information on the citation
that could refresh his memory.

11

231

The record establishes a violation of 30 CFR 56.14-1. The V-belt
drive was exposed in such a manner that a person could fall against it
and get entangled. The V~belt drive was about one foot off the walkway
platform.
The one person who did service and maintenance on the equipment
was not on the walkway at the time of the inspection. The hazard
existed only when the equipment was in operation. The walkway is
approximately 10 feet off the ground with a loader going to it.
There had been a recent fatality in a limestone mine where a person
was caught in the tail pulley while another person was attempting to
remove a rock.
The pit is about three miles from the asphalt plant, The inspector
inspects only the pit and crushing portion of the operation.
It is unnecessary to stop the equipment to oil or grease it or
to clean-up. Stopping the equipment is not a requirement if it is guarded,
Although no one is supposed to go on the walkway for servicing the
machinery while it is in operation, the experience of the inspector is
that an employee will sometimes clean up with the equipment in operation.
The probability is slight that an employee will be injured in
the area where the machinery is exposed.
The operator, Metro Asphalt, was negligent in that it should have
known of the exposed V-drive belt. The condition was obvious and could
be seen from the ground level.
Metro Asphalt demonstrated good faith in achieving rapid compliance
after notification of the violations by putting a bar across the ladder
going up to the elevated traveling and a sign reading "Do Not Enter."
The operator also testified that the operator had welders start work on
the guards immediately.
Docket CENT 81-200-M
Citation No. 171470 (Exhibit P-5)
The inspector noted in the Citation that:
"The guard on the tail pulley of the crusher feed
conveyor was not extended sufficient to prevent
person from reaching behind guard and becoming
entangled and receiving serious injuries. There
was one person who did service and maintenance and
cleanup."

232

30 CFR 56.14-3 provides that:
"Guards at conveyor-drive, conveyor-head, and ~onveyor
tail pulleys shall extend a distance sufficient to prevent
a person from accioentally reaching behind the guard and
becoming caught between the belt and the pulley."
The record establishes a violation of 30 CFR 56.14-3. The guard on
the tail pulley was not extended sufficiently. The back portion of the
tail pulley was partially guarded up to a certain place but it was not
guarded adequately. If a person were to trip he could put his hand
where it would be caught between the tail pulley and the inadequate
guard. MSHA recommends an expanded metal guard completely surrounding
the tail pulley. The pulley is visible through the expanded metal
yet it protects persons from being injured by the pulley.
Although it was normal company policy to shut down while doing
clean-up, servicing or maintenance there is a slight probability under
the circumstances existing that a person would be injured as a result
of the unguarded tail pulley if the equipment should be started up
accidentally or if a person did not abide by the company policy.
MSHA had previously required a guard to be installed in 1977 when
30 CFR 56.14-3 was not a mandatory requirement. Although the guard
should be further extended, as now required by MSHA under the mandatory
standard to reduce the hazard. the negligence of the operator under
the circumstances was slight.
Metro Asphalt demonstrated good faith in achieving rapid compliance
after modification of the violation by installing a guard on the tail
pulley of the crusher feed conveyor. Welders started work on the guard
immediately.
ORDER
An assessment of $40 is ordered for each of the f-0ur citations
found proved. Respondent is ordered to pay petitioner the amount of
$160 within 30 days of this date of this order.

dv~!!~f
Forrest E. Stewart
Administrative Law Judge

Distribution:
Eloise Vellucci, Esq., U.S. Department of Labor, Office of the Solicitor,
555 Griffin Sq. Bldg., Suite 501, Dallas, TX 75202 (Certified Mail)
Burney T. Sullinger, Esq., Sullinger & Sullinger, Inc., Occupational
Safety Consultants, 822 Kinney Ave., Box 4510, Corpus Christi, TX 78408
(Certified Mail)

233

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

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

fEB 4 \982

Civil Penalty Proceeding
Petitioner

Docket No. PENN 81-146
A/O No. 36-00970-03094

v.
Maple Creek No. 1 Mine
UNITED STATES STEEL CORPORATION,
Respondent
DECISION
Appearances:

Covette Rooney, Esq., Office of the Solicitor, U.S. Department
of Labor, Philadelphia, Pennsylvania, for the Petitioner;
Louise Q. Symons, Esq., United States Steel Corporation~
Pittsburgh, Pennsylvania, for the Respondento

Before:

Judge Stewart

I.

Procedural Background

On June 8, 1981, the Secretary of Labor (Petitioner) filed a petition
for assessment of civil penalty in the above-captioned case pursuant to
section llO(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801 et seq. (Supp. III 1979) (Act), charging United States· Steel
Corporation (Respondent) with five violations of law as set forth in various
citations issued pursuant to section 104(a) of the Act. The violations
charged are identified as follows:
Citation No.

Date

30 C.F.R. Standard

1046741
1046742
1046753
1046754
1046755

2/11/81
2/11/81
2/17/81
2/17/81
2/17/81

75.1403
75.1403
75.1403
75.1403
75.1403

Each citation contained the additional allegation that the violation charged
was of such nature as could significantly and substantially contribute to
the cause and effect of a mine safety or health hazard.

234

On June 26, 1981, the Respondent filed an answer: (1) denying the
existence of each condition alleged-in the 5 citations; (2) denying that
any violations of 30 C.F.R. § 75.1403 occurred; (3) denying the allegation
set forth in each of the 5 citations that the alleged violations were of such
nature as could significantly and substantially contribute to the cause and
effect of a mine safety or health hazard; and (4) admitting that it is
engaged in interstate commerce.

The hearing was held on August 11, 1981, in Pittsburgh, Pennsylvania
with representatives of both parties present and participating. The
Petitioner called Federal mine inspector Okey H. Wolfe as a witness. The
Respondent called assistant mine foreman Joseph G. Ritz as a witness.
The parties waived the right to file posthearing briefs and proposed
findings of fact and conclusions of law. However, the parties did present
closing arguments. Such closing arguments, insofar as they can be considered
to have contained proposed findings and conclusions, have been considered
fully, and except to the extent that such findings and conclusions have been
expressly or impliedly affirmed in this decision, they are rejected on the
grounds that they are, in whole or in part, contrary to the facts and law or
because they are immaterial to the decision in this case.
II.

Issues

Two basic issues are involved in this civil penalty proceeding~ (1) did
a violation of 30 C.F.R. § 75.1403 occur, and (2) what amount should be
assessed as a penalty if a violation is found to have occurred? In determining the amount of civil penalty that should be assessed for a violation, the
law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the operator's
business; (3) whether the operator was negligent; (4) effect of the penalty
on the operator's ability to continue in business; (5) gravity of the violation; and (6) the operator's good faith in attempting rapid abatement of the
violation.
The following additional issue is presented in this proceeding: If
the cited violations of 30 C.F.R. § 75.1403 occurred, then whether such
violations were of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard. See
Energy Fuels Corporation, 1 FMSHRC 299, 1979 CCH OSHD par, 23,503 (1979-Y:II.

Opinion and Findings of Fact

A.

Stipulations

1. The Maple Creek No. 1 Mine is owned and operated by the Respondent,
United States Steel Corporation (Tr. 3-4, 6).
2. The Maple Creek No. 1 Mine is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977 (Tr. 4, 6).

235

3. The Administrative Law Judge has jurisdiction over these proceedings
(Tr. 4, 6).

4. The subject citations were properly served by a duly authorized
representative of the Secretary of Labor upon an agent of the Respondent
at the dates, times and places stated therein, and may be admitted into
evidence for the purpose of establishing their issuance and not for the
t,ruthfulness or relevancy of any statements asserted therein (Tr. 4, 6).
5. The assessment of the civil penalty in this proceeding will not
affect the Respondent's ability to continue in business (Tr. 4, 6).

6. The appropriateness of the penalty, if any, to the size of the
operatorvs business should be based on the fact that the Respondentvs
annual ·production tonnage is 14,585,534 tons; and the Maple Creek No. 1
Minevs annual production tonnage is 740,382 tons (Tr. 4, 6)0
7. The Respondent demonstrated ordinary good faith and attained
compliance after the issuance of each citation (Tr. 5-6)o
8. The Maple Creek No. l Mine was assessed a total of 699 violations
over 759 inspection days during the 24 months immediately preceding the
issuance of the instant citations. Of these violations, 100 were cited
pursuant to 30 C.F.R. § 75.1403 (Tr. 5-6)o

9. The parties stipulate to the authenticity of their exhibits, but
not to their relevance nor to the truth of the matters asserted therein
(Tr. 5-6).

B.

Occurrence of Violations

Federal mine inspector Okey H. Wolfe issued Citation Nos. 1046741 and
1046742 during the course of his February 11, 1981, regular inspection of
the Respondent's Maple Creek No. 1 Mine. Citation No. 1046741 was issued
at approximately 8:05 a.m., and charges the Respondent with a violation of
30 C.F.R ~ 75.1403 in that "[tJhe sanding devices provided for the number
12 personnel carrier (portal bus) located on Spinner Bottom were not
provided with sand." (Exh. G-1, Tr. 9). Citation No. 1046742 was issued
at approximately 8:06 a.m., and charges a violation of 30 C.F.R. § 75.1403
in that "[tJhe sanding devices provided for the number 13 personnel carrier
(portal bus) located on Spinner Bottom were not provided with sand."
(Exh. G-2, Tr. 9).
Inspector Wolfe issued Citation Nos. 1046753, 1046754 and 1046755 at
the Maple Creek No. 1 Mine at approximately 8 a.m. on February 17, 1981.
Citation No. 1046753 charges the Respondent with a violation of 30 C.F.R.
§ 75.1403 in that "[t]he sanding devices provided for the number 10 personnel
carrier (portal bus) located on Spinner Bottom were not being well maintained
due to a lack of sand being provided for the two outby sanding devices."
(Exh. G-3, Tr. 11). Citation No. 1046754 charges the Respondent with a

236

violation of 30 C.F.R. § 75.1403 in that "[t]he sanding devices provided for
the number 12 personnel carrier (portal bus) located on Spinner Bottom were
not being well maintained due to a lack of sand being provided for the inby
and outby sanding devices on the wide side" (Exh. G-4, Tr. 11-12). Citation
No. 1046755 charges the Respondent with a violation of 30 C.F.R. § 75.1403
in that "(t]he sanding devices provided for the number 13 personnel carrier
(portal bus) located on Spinner Bottom were not being well maintained due to
a lack of sand being provided for the inby and outhy sanding devices on the
wide side" (Exh. G-5, Tr. 12).

30 C.F.R. § 75.1403 provides as follows: "Other safeguards adequate,
in the judgment of an authorized representative of the Secretary, to minimize
hazards with respect to transportation of men and materials shall be
provided."
The five citations charge the Respondent with violations of 30 C.FoRo
75.1403 based upon the Respondent's alleged failure to comply with the
requirements of Safeguard Notice 1 HB, which was issued at the Respbndent 1 s
Maple Creek Noo 1 Mine on June 10, 19760 (Exh. G-6)0 1/ The Safeguard
Notice imposes a requirement on the mine operator whereby vi(a]ll personnel
carriers which transport more than 5 persons shall be equipped with a
properly installed and well maintained sanding device in the mine."
§

1_/ 30 G.F.R. § 75.1403-1 sets forth the following general criteria for the
issuance of safeguard notices:
"(a) Sections 75.1403-2 through 75.1403-11 set out the criteria by
which an authorized representative of the Secretary will be guided in
requiring other safeguards on a mine-by-mine basis under § 75.1403. Other
safeguards may be required.
(b) The authorized representative of the Secretary shall in writing
advise the operator of a specific safeguard which is required pursuant to
§ 75.1403 and shall fix a time in which the operator shall provide and
thereafter maintain such safeguard. If the safeguard is not provided within
the time fixed and if it is not maintained thereafter, a notice shall be
issued to the operator pursuant to section 104 of the Act.
(c) Nothing in the sections in the § 75.1403 series in this Subpart 0
precludes the issuance of a withdrawal order because of imminent danger."
Safeguard Notice No. 1 RB, June 10, 1976, was issued pursuant to the
safeguard notice issuance guideline set forth at 30 C.F.R. § 75.1403-6(b)(3) 9
(Exh. G-6, Tr. 15), which provides as follows:
"(b) In addition, each track-mounted self-propelled personnel c?rrier
should:

*(3)

*

*

*

*

*

*

Be equipped with properly installed and well-maintained sanding
devices, except that personnel carriers (jitneys), which transport not more
than 5 men, need not be equipped with such sanding device;"

237

The portal buses in question are electrically powered, track-mounted
personnel carriers us~d to transport the miners to the section (Tr. 58).
Each has the capacity to carry more than 5 people (Tr. 15, 42), and each is
equipped with four sanding devices with reservoirs capable of holding
approximately 20 to 25 pounds of sand (Tr. 37-38, 59). There are two sanding
devices f9r the inby direction and two for the outby direction (Tr. 37-38),
meaning that there is one sanding device for each of the four wheels
(Tr. 58-59).
The Maple Creek No. 1 Mine has approximately 20 to 25 miles of haulage
which is set up as a dual haulage system with one track reserved for inbound
traffic and one reserved for outbound traffic (Tr. 60). Sand stations are
located at the portal bus station, along the haulage and in the sections
along the flats (Tr. 59).
The Respondent's program for replenishing the sand in the sanding
devices requires the portal bus operator to check the sanders when he
arrives at the portal bus station at the beginning of the shift. Normally~
this occurs before the personnel carriers are energized with electrical
power (Tr. 61, 63). The buses are then used to transport the miners to
their work place, and the personnel carriers remain parked underground until
the end of the shift. At the end of the shift, but prior to restoring
electrical power to the personnel carriers, the portal bus operator is
again supposed to check the sanding devices for sand (Tro 63-64)0 If he
runs out of sand during a run, he is required to replenish his sand supply
at the next sanding station which he encounters (Tr. 65).
Additionally, mechanics check the sanding devices between shifts to
assure that they remain mechanically operational (Tr. 61-62).
All of the citations were issued in the portal bus boarding area at the
beginning of a shift at a point in time when the miners on the on-coming
shift were preparing for transport to their work places. Although the
citations were issued prior to the buses being put in motion (Tr. 27), all
of the portal buses were ready and available for use (Tr. 15). There were
no indications that the personnel carriers had been taken out of service
for any reason (Tr. 15). Normally, the first 2 to 4 buses in line are used
to transport the crews onto the section (Tr. 31). Additionally, the
inspector testified that he did not give the portal bus operator or the
on-coming shift an opportunity to determine whether there was sand in the
sanders (Tr. 32-33).
With respect to the two citations issued on February 11, 1981, the
evidence shows that approximately 7 or 8 men were sitting in the portal bus.
encompassed by Citation No. 1046741 (Tr. 10). The portal bus encompassed
by Citation No. 1046742 was next in line, but there was no one aboard it.
There was no one aboard the three portal buses encompassed by Citation
Nos. 1046753, 1046754 and 1046755 at the precise point in time when the
citations were issued on February 17, 1981 (Tr. 13).

238

There was no sand in the two outby sanders on the portal bus encompassed
by Citation No. 1046753. With respect to the remaining four' citations, there
was no sand in the inby and outby sanders on the wide side (Tr. 9-10, 13,
17-18, 41-42). However, it appears that all of the sanding devices were
mechanically operational (Tr. 27).
The Petitioner argues, in substance, that a violation of the Safeguard
Notice exists whenever a personnel carrier which transports more than five
persons is in the mine, out of sand, and not tagged out of service because,
while in such condition, the sanding devices are not being "well maintainerl."
According to the Petitioner, the personnel carriers are available for use,
even though not in motion., and are not being properly maintained· (Tr. 79).
The Respondent concedes that a violation would have existed if the cited
personnel carriers had departed the station with empty sanding deviceso
However, the Respondent maintains that there will be occasions in the normal
course of operation when the sanders will be empty, and argues that so long
as it has and enforces a program to fill the sanders, and so long as sand
is available for the sanders, no violation exists. The Respondent also argues
that the Safeguard Notice requires only the presence of sanding devices
capable of being used (Tr. 81-82).
The subject Safeguard Notice requires all personnel carriers which
transport more than five persons to be equipped with a properly installed
an<l well maintained sanding deviceo A sanding device which does not contain
sand at a time when such personnel carrier is in use cannot be considered
0
well maintained" within the meaning of the Safeguard Notice. Whenever a
personnel carrier is available for use, as these were, it must be considered
to be in use. See Eastern Associated Coal Corporation, 1 FMSHRC 1473, 1979
CCH OSHD par. 23,980 (1979). Adrlitionally, the fact that the sanding devices
must be well maintained at all times while in use indicates that the
reservolrs should have been checked and refilled promptly when the personnel
carriers returned to the station after the prior run.
Furthermore, the requirements imposed on the Respondent by the Safeguard
Notice are clearly applicable to all personnel carriers with the capacity to
transport more than 5 persons. The fact that it may have been holding five,
or fewer, persons when a given citation was issued is not a defense if it is
capable of holding more than five persons.
It should also be noted that the Respondent never proved that the sanding
devices would, in fact, have been checked and refilled before the personnel
carriers departed the station. The portal bus operators, the individuals
assigned by the Respondent to perform this task, were never called by the
Respondent to testify on this point. It is significant to note that 7 or 8
men were aboard the portal bus cited in Citation No. 1046741 when such
citation was issued. This indicates that it was at least possible that
portal buses would have been operated with empty sanding devices.

239

The Respondent also sought to prove, through the testimony of assistant
mine foreman Joseph G. Ritz, that the use of sand with respect to haulage
equipMent presents certain hazards. He gave testimony indicating that
excessive sand deposited on t~e rails can adversely affect proper grounding,
presenting an electrocution hazard (Tr. 65-66, 75-77).
- The use of sand to provide added traction for track-mounted haulage
vehicles is a long standing practice in the mining industry. It is considered singularly inappropriate to entertain the Respondent's challenge to
this long standing practice on the basis of the testimony of one witness who
appears to have no specialized expertise in electrical matters. This issue
was not raised by the Respondent in its answer, and there is no indication
that the Petitioner was given any other form of notice that the Respondent
wished to raise it in this proceeding. Considering the significance of the
challenge to the safety of miners, the issue should have been specifically
raised prior to the hearing so as to give the Petitioner adequate opportunity
to prepare and present expert testimony in rebuttal.
In view of the foregoing, I conclude that Citation Nos. 1046741,
1046742, 1046753, 1046754 and 1046755 properly charge the Respondent with
violations of Safeguard Notice 1 HB, June 10, 1976, and, hence, of 30 C.F.R.
§ 75.1403.
I find that the violations charged have been established by a
preponderance of the evidence.

C.

Negligence of the Operator

The record contains no probative evidence to estA.bli.sh either that the
Respondent's supervisory personnel or that those persons designated by the
Respondent to perform inspections or examinations required by law had actual
or constructive knowledge of the violative condi.tions. Accordingly, I
conclude that the Petitioner has failed to prove the mine operator's
negligence by a preponderance of the evidence.

D.

Gravity of the Violation

Properly installed and well maintained sanding devices provide additional traction for track-mounted personnel carriers when the need arises.
They deposit sand on the rails, as the need arises, to provide additional
friction between the wheels and the rails, providing traction when slick
conditions are encountered and for sudden stops and starts (Tr. 18-19·,
22-23, 37-39). Mr. Ritz testified that there are areas along the haulage
which are "reasonably level" and areas that have "some degree" of slope
(Tr. 60).
The inspector testified that a haulage accident could result from a
lack of sand, and that an occurrence of the event against which the cited
standard is directed would be expected to result in broken bones, cuts,
bruises, abrasions and/or concussions. Up to 10 people would have been
affected by an occurrence (Tr. 44-45).

240

There was no hazard present so long as the portal buses remained
stationary (Tr. 44, 53-54). However, there is no probative evidence in
the record to establish the probability of occurrence had the portal buses
been placed in motion with empty sanders. In this regard, the record contains
only the inspector's speculation that "[i]t could well happen" (Tr. 44).
To hold otherwise on the facts of this case would, in effect, require that
official notice be taken that all violations of the type charged present
a probability of occurrence classified as "probable," without regard to the
particular conditions existing along the haulage.
In view of the foregoing, it is found that the violations were of
moderate gravity.
E.

Remaining Penalty Assessment Criteria

Based upon the stipulations entered into by the parties~ I find:
(1) that the Respondent demonstrated ordinary good faith and attained
compliance after the issuance of each citation; (2) that the Respondent is
a large operator; (3) that the Respondent's history of previous violations
is moderate; and (4) that the assessment of the civil penalty in
this proceeding will not affect the Respondent's ability to continue in
business.
Fo

Significant and Substantial Criterion

The inspector included findings on the face of each citation that the
violations were of such nature as could significantly and substantially
contribute to the cause and effect of a mine safety or health hazard. His
testimony indicates that the determination was based upon an application of
the test set forth by the Interior Board of Mine Operations Appeals in
Alabama By-Products Corporation, 7 IBMA 85, 94, 83 I.D. 574, 1 BNA MSHC 1484,
1976-1977 CCR OSHD par. 21,298 (1976) (Tr. 50-51). This test was overruled
by the Commission in National Gypsum Company, 3 FMSHRC 822, 2 BNA MSHC 1201~
1981 CCR OSHD par. 25,294 (1981), wherein it was held:
[T]hat a violation is of such nature as could significantly
and substantially contribute to the cause and effect of a
mine safety or health hazard 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.
3 FMSHRC at 825.

Additionally, the Commission stated that:

Although the [Federal Mine Safety and Health Act of
1977] does not define the key terms "hazard" or
"significantly and substantially," in this context we
understand the word"hazard" to denote a measure of danger
to safety- or health, and that a violation "significantly

241

and substantially" contributes to the cause and effect of a
hazard if the violation could be a major cause of a danger
to safety or health. In other words, the contribution to
cause and effect must be significant and substantial.
3 FMSHRC at 827. [Footnote omitted.]
The inspector testified that he did not know, and that it "would be
tough to say," whether he would have included such findings on the face of
the citations under the "new policy." (Tr. 51).
In view of the inspector's testimony on this point, and in view of the
findings set forth in Part v-n of this decision, I conclude that the
Petitioner has failed to prove that the violations were of such nature as
could significantly and substantially contribute to the cause and effect of
a mine safety or health hazard under the test set forth in National Gypsumo
VI.

Penalty Assessed

Upon consideration of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of civil
penalties is warranted as follows:
Citation No.

Date

30 C.F .Ro
Standard

1046741
1046742
1046753
1046754
1046755

2/11/81
2/11/81
2/17/81
2/17/81
2/17/81

75.1403
75.1403
75.1403
75.1403
75.1403

Penalty
$50
50

50
50

50

ORDER
Accordingly, IT IS ORDERED that Citation Nos. 1046741, 1046742~ 1046753,
1046754 and 1046755 be, and hereby are, MODIFIED to delete the issuing
inspector's findings that the cited violations were of such nature as could
significantly and substantially contribute to the cause and effect of a mine
safety or health hazard.
IT IS FURTHER ORDERED that the Respondent pay civil penalties totaling
$250 within 30 days of the date of this decision.

Forrest F,. Stewart
Administrative Law Judge

242

Distribution:
Covette Rooney, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480, Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Louise Q. Symons, Esq., United States Steel Corporation, 600 Grant
Street, Pittsburgh, PA 15230 (Certified Mail)

243

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

fEB 4 \982
)

C F & I STEEL CORPORATION,

)
)

Contestant,

CONTEST OF CITATION PROCEEDING

)
)

v.

DOCKET NO. WEST 80-384-R

)

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

)

Order No. 827062; 6/12/80

)
)

MINE: Allen

)

Respondent.

)
)

~~~~~~~~~~~~~~~~~~~-

DECISION AND ORDER
Appearances:
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
llOO United Bank Center
Denver, Colorado 80290
For the Contestant
James H. Barkley, Esq.
Office of the Sol itor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Respondent
Before: Judge Jon D. Boltz
STATEMENT OF THE CASE
Pursuant to Section 105 of the Federal Mine Safety and Health Act of
1977, (hereinafter the "Act") Contestant applied for review of Withdrawal
Order No. 827062, dated June 12, 1980, alleging that no unwarrantable
failure to comply with a mandatory health and safety standard occurred.
The underlined mandatory standard was 30 C.F.R. 75.301. That regulation
provides in pertinent part: "All active workings shall be ventilated by a
current of air ... The minimum quantity of air reaching the last open
crosscut in any pair or set of developing entries ... shall be 9,000 cubic
feet a minute •.•.
Respondent answered that the order was properly issued and that
failure of contestant to maintain the required minimum amount of air in the
last open crosscut constituted a violation of 30 C.F.R. 75.301, as alleged
in the Order of Withdrawal.

244

Findings of Fact
1. While conducting an inspection of contestant's Allen Coal Mine on
June 12, 1980, an MSHA inspector took air flow samples in the last open
crosscut in one section of the mine. There were six entries 'into the
section of the mine which was inspected.
2. The MSHA inspector measured air flow in the last open crosscut
between the No. 5 and No. 6 entries as 6,552 cubic feet a minute (hereinafter "cfm"). Between entry No. 1 and No. 2 in the last open crosscut no
perceptible air movement could be detected.
3. Immediately outby the last open crosscut there was a brattice
curtain across the No. 1 entry. The only opening in the curtain through
which air could pass was a ventilating tube 18 inches in diameter which ran
along the left rib of the No. 1 entry, then through the brattice curtain
with the opening of the ventilating tube ending near the working face at
the end of No. 1 entry.
4. At the time of the inspection, 12:20 a.m., there was no mining of
coal taking place in the section.
5. At the end of the production swing shift just prior to the time of
the inspection, air flow in the sect ion was 25, 200 cfm and no methane gas
was present.
6. During the idle shift maintenance is performed at the mine, and at
the time of the inspection the mainenance shift personnel were on their way
to the mine. _The MSHA inspector prevented the maintenance shift from going
into the section inspected by posting a closure sign and issuing Withdrawal
Order No. 827062.
7. On two previous maintenance shifts within two days prior to the
inspection in this section of the mine, the pre-shift examiner had recorded
that methane ~as in excess of 5% was present in that section of the mine.
Issues
1. Did the contestant violate 30 C.F.R. 75.301 relating to the amount
of air required at the last open crosscut on June 12, 1980?
2. If contestant did violate 30 C.F.R. 75.301, was the violation the
result of an unwarrantable failure on the part of the contestant to comply
with such regulation?
Discussion
The cited regulation requires that in all active workings the minimum
quantity of air reaching the last open crosscut shall be 9,000 cfm.
The air flow measurements as recorded by the MSHA inspector in the last
open crosscut are not disputed by Contestant. Thus, there was a violation
of 30 C.F.R. 75.301 as alleged in the Withdrawal Order if the areas covered
were "active workings."

245

Contestant contends that the 9,000 cfm requirement at the last open
crosscut does not apply to idle areas of the mine where coal is not being
cut, mined or loaded, and no other work is taking place. Specifically,
Contestant argues that the area where the measurements were taken were not
in "active workings" of the mine. Contestant also contends that its
approved ventilation plan calls' for idle working places, work faces where
roof· bolting is done, and deadended entries will be ventilated by a
perceptible movement of air. There is no requirement in the plan for 9,000
cfm in the last open crosscut with respect to idle sections.
Contestant argues that 9,000 cfm of air is required in the last open
crosscut in order to ensure that a minimum of 3,000 cfm reaches the working
face. Since no coal was being cut, mined or loaded, the workings were not
"active" but were idle, and idle working faces need only a perceptible
movement of air to be in compliance with the approved ventilation plan,
"Active workings" are defined as "all places in a mine that a.re
ventilated and inspected regularly." U.S. Department of the Interior,
Buteau of Mines, a dictionary of Mining, Mineral and Related Terms. Page
11 0 968), No mention is made in the definition that there· must be product ion of the mineral in order for there to be "active workings".
During the idle shift at the Allen Mine, the maintenance personnel
come on duty. These miners are not producing coal, but are engaged in
maintenance activity, Contestant is attempting to draw too narrow of a
distinction in defining "active· workings", The working activity taking
place in the section inspected consisted of production shifts, and maintenance or idle shifts. Since this section was ventilated and inspected
regularly, it must be classified as "active workings". The last open
crosscut did not have the flow of air required by the cited regulation.
Therefore, my conclusion is that there was a violation of 30 C.F.R.
75.301 by the Contestant.
The next question is whether or not the violation was a result of an
unwarrantable failure of contestant to comply with the regulation.
Specifically, did the contestant intentionally or knowingly fail to comply
with the regulation or demonstrate a reckless disregard for the health or
safety of the miners? Itmann Coal Company v. The Secretary of Labor, Mine
Safety, and Health Administration (MSHA), 2 MSHC 1277 (1981).
The MSHA inspector testified that Contestant failed to provide
adequate ventilation to the working section even though there was a known
possibility of the accumulation of excessive methane gas to an explosive
level. The two previous pre-shift reports for the maintenance or idle
shift showed the presence of methane gas of approximately 5%. These
reports were for the two days preceding the date the withdrawal order was
issued. However at the end of the production swing shift just prior to
the maintenance or idle shift during which the inspection took place, there
was no methane present.
The MSHA inspector testified that at the time of the violation the air
that should have been going to the last open crosscut from No ..2 to No. 1

246

entries had no means to travel other than through the 18 inch ventilattng
tube, because the balance of the entry was partitioned off with the
brattice curtain. In checking further the inspector found that there was
no movement of air on either side of the curtain. He gave his opinion that
because there was no movement of air into the area, the 18 inch ventilating
tube was ineffective as an exhaust. He further stated that it was not
sound mining practice to cut off ventilation in areas of known methane
accumulation.
The contestant's section foreman informed the MSHA inspector that the
brattice curtain was installed in order to keep the working face of the No,
1 entry, immediately inby where the brattice was erected, clear of methane
gas by use of the 18 inch ventilating tubeo The section foreman felt that
this procedure was sufficient to accomplish the jobo The 18 inch
ventilating tube was intended to be used to carry return air, With this
explanation by contestant's section foreman, it is apparent that contestant
was attempting to keep the working face at the end of No, 1 entry free of
methane during the idle or maintenance shift, When the MSHA inspector was
asked whether there was any accumulation of methane gas in the section
between the time the withdrawal order was issued and seven and a half hours
later when the withdrawal order was terminated, he stated "not to my knowledge."
Contestant points out that the approved ventilation plan
idle working faces will be ventilated by a preceptible movement
, and
that tubing in conjunction with line brattice is used to provide
ventilation of the working face and no auxillary fans are operated during
idle shifts. Contestant was perfon:µing in accordance with this sect ion of
the ventilation plan. However, the plan also calls for a minimum quantity
of 9,000 cfm of air flow reaching the last open crosscut, the same
provision as the cited regulation.
The evidence does not show that contestant intentionally or knowingly
failed to comply with the regulation in question. The section foreman's
report prepared at the end of the shift immediately preceding the issuance
of the withdrawal order showed that there was no methane gas present, and
the air flow was 25,200 cfm. During the idle shift contestant was attempting to ventilate the section in which the brattice line and
ventilating tube had been installed. The evidence shows that there was no
accumulation of methane between the time the order was written and seven
and a half hours later when it was vacated. Since these actions took place
I cannot find that contestant exhibited a reckless disregard for the health
or safety of the miners.
I find contestant's evidence credible in that contestant believed that
because there was an idle shift period in the idle section, the contestant
was in compliance with its approved ventilation control plan by merely
providing a preceptible movement of air at the working face, I also find
that this was the reason that contestant believed that 9,000 cfm of air
would not have been a requirement in the last open crosscut of the idle
section. I have already concluded that the section was "active workings",
but contestant did not have the benefit of that conclusion on the date the
withdrawal order was issued.

247

Consequently, I find that there was a violation of 30 C.F.R. 75.301,
but that the violation did not result from an unwarrantable failure of the
operator to comply with that regulation.
ORDER
Insofar as Withdrawal Order No. 827062 finds that the violation of 30
C.F.R. 75.301 resulted from an unwarrantable failure of contestant to
comply with that regulation, the Order, is VACATED. The allegation of a
violation 30 C.F.R. 75.301 along with the Withdrawal Order is AFFIRMED.

:J

1

,:Jon , i;'Bolt=Z ·
/
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq,
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver~ Colorado
80290
James H. Barkley~ Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294

248

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE. SUITE 400
DENVER, COLORADO 80Z04

)
)
)
)
)
)
)
)
)
)
)

.DONALD L. LUND,
Complainant,
v.

ANAMAX MINING COMP ANY,
Respondent.

fEB 4 1982
COMPLAINT OF DISCHARGE,
DISCRIMINATION OR INTERFERENCE
DOCKET NO. WEST 81-193-DM

~~~~~~~~~~~~~~~~~~~

Appearances:
Donald L. Lund, appearing Pro Se
Tucson, Arizona
Steven Weatherspoon, Esq., Chandler, Tullar,
Udall & Redhair, Tucson, Arizona, appearing for Respondent
Before: Judge John J, Morris
DECISION
STATEMENT OF THE CASE
Complainant Donald Lund brings this action on his own behalf alleging
he was discriminated against by his employer, Anamax Mining Company,
(Anamax), in violation of the Federal Mine Safety and Health Act of 1977,
30 U• S . C . § . 801 ~ seq •
The statutory provision, Section 105(c)(l) of the Act, now codified at
30 U.S.C. 815(c)(l), provides as follows:
§ 105(c)(l) No person shall discharge or in any manner discr1m1nate 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 miner~ 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 potential transfer under a standard published pursuant to
section 101 or because such miner, representative of miners or
applicant for employment has. instituted or caused to be instituted any proceeding under or related to this Act or has
testified or is about to testify in any such proceeding, or because of the exercise by such miner, representative of miners or
applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
After notice to the parties, a hearing on the merits was held
Tucson, Arizona on August 25-27, 1981. The parties filed post
briefs,

in

PRE-TRIAL MATTERS
A pre-trial hearing was held in this case in Tucson, Arizona on July
14, 1981. At the hearing, the Commission's procedures were explained to
the parties as well as the applicable case law as set forth in David Pasula
v. Consolidation Coal Company, 2 FMSHRC 2786 (1980), rev 1 d on other
grounds, No. 80-2600 (3d Cir, October 30, 1981).
At the prehearing conference complainant Donald Lund (Lund) indicateci
his case involved some 20 instances of discriminaiion (Tr. 15, 24 70,
Pre-Hearing), The Judge and the parties discussed discovery, the
of
an amended complaint, and a trial date of September 29, 1981. Various
other matters relating to the hearing were discussed. Lund asserted that
the acts of discrimination by Anamax were continuing. However, since it
was necessary to bring the case to issue an oral order was entered to the
effect that only claims of discrimination that had occurred before the
previous day (July 13, 1981) would be considered (Tr. 29, Pre-Hearing). On
July 31, 1981, Lund filed his amended complaint alleging thirty-six
instances of discrimination.
On July 20, 1981, Lund filed a letter with the Commission stating that
a fellow worker, whom he identified by name, stated to Lund on Anamax
property, among other things, "If you close this mine down I'm going to get
my .357 and shoot you."
A copy of Lund's letter with a general explanation of the nature of
the case was forwarded to A. Bates Butler, then the United States Attorney
in Tucson, Arizona. Copies of this correspondence were forwarded to Lund,
the MSHA office in Tucson, counsel for respondent, and the Connnission's
Chief Judge, James A. Broderick.
The allegations in Lund's letter occurred after July 13, 1981 and any
issues arising out of that incident are not considered in this decision.

250

ISSUES
The issues are whether Anamax discriminat.ed against Lund and thereby
violated the Act.
APPLICABLE CASE LAW
The Cormnission has ruled that to establish a prima facie case for a
violation of § lOS(c)(l) of the Act a complainant must show by a preponderance of the evidence that (1) he engaged in a protected activity and
(2) that the adverse action was motivated in any part by the protected
activity. The employer may affirmatively defend, however, by proving by a
preponderance of all the evidence that, although part of his motive was
unlawful, (1) he was also motivated by the miner's unprotected activities~
and (2) that he would have taken adverse action against the miner in any
event for the unprotected activities alone, David Pasula, supra. Further,
in order to support a valid refusal to work the miner 1 s perception of the
hazard must be reason~ble. Robinette v. United Castle Coal Company 3
FMSHRC 803, (1981). In Johnny Chacon v. Phelps Dodge Corporation WEST
79-349-DM (November 13, 1981) the Commission analyzed some of the
circumstantial indicia of discriminatory intent.
SYNOPSIS OF THE CASE
Lund asserts that he gave a statement concerning an unsafe condition
on a power shovel to the Anamax safety department and was, thereafter, the
subject of retaliatory conduct by Anamax for engaging in that protected
activity. The alleged retaliation suffered by Lund consists of the
fol lowing claims: he was ordered to work under unsafe conditions; he was
threatened; he was verbally abused; he was issued letters of discipline; he
was unjustifiably charged with absences from his job; and other miscellaneous actions by Anamax. Lund complains about thirty-six instances of
alleged retaliation. Additionally, it appears from the transcript of the
hearing that Lund claims that when Anamax failed to provide him a safe work
place, and he argues that, in and of itself, this constituted discrimination.
Lund's last claim has no support under the Act. The failure to
provide a miner with a safe workplace may constitute a violation of a
mandatory health or safety standard and thereby be a violation under the
Act, but such a failure does not without more constitute discrimination.
An act of discrimination under the Act occurs only When a mine operator
takes adverse action against a miner because the miner has engaged in an
activity that is protected by the Act. Pasula, supra.
Lund's contention that all thirty-six instances of alleged adverse
action occurred because Anamax was retaliating against him for the
statement he gave concerning the power shovel incident is not supported by
the record. Lund's statement and the various other safety complaints
voiced by him were protected activity. However, Lund either failed to
establish a connection between these thirty-six incidents and the protected
activity. or the incident itself cannot be considered to be adverse action.
In short, Lund does not show that Anamax retaliated against him for any
protected activity.

251

This decision initially analyzes the power shovel incident and then
the various acts of discrimination as set forth in the amended complaint.
In each of the instances of alleged discrimination the decision sets out
the allegation followed by the findings of fact and a discussion.
Occasionally controverted facts appear and they are identified as such in
the discussion portion of the incident.
Various management supervisors were involved with Donald Lund i.n
various aspects of his case.
Lund, an Anamax welder, worked in the weld shop.
vision in the weld shop included:

thE~

His direct super-

Dayton Miller
Jerry Hyder
additional supervisors included:
Tony Rael, assistant superintendent
Robert Nelson, superintendent
1
Lui1d s welding duties also took him to various other Anarnax
departments. While in those other departments he would be under the
directions of other supervisors. These included the following:
Bi 11 Bissell
Maderas, Bissel's supervisor
Marshall Foster, front line supervisor
Keppner, supervisor
Rudolfo Ypulong, front line supervisor in electrical parts
department
Hassell Logan, superintendent, conveyors
Shelley, shovel superintendent
Justin "Red" Taylor, supervisor
Bissell was terminated by Anamax a few months before the trial because
"he was not an adequate supervisor" (Tr. 805). Maderas and Keppner
resigned in protest of Bissell being discharged. Also involved in portions
of Lund's case are:
Paul Weathers, se~urity guard
Charles Bishop, plant protection and Emergency Medical
Technician
Persons 1n Anamax's safety department include:
Gerald Johnson, Director of Loss Prevention
John Caylor, Manager of safety and health under Johnson's
supervision

POWER SHOVEL INCIDENT
Witness: Lund, P.ij anowski, Johnson, and DeAnda.

252

1. Donald Lund had been employ 0 d as a welder by Anamax since November
1979 (Tr. 124).
2. On April 25, 1980, the S-10 shovel shorted out due to a ground
fault on the 4160 volt circuit. Foreman Bill Bissell was told by
electrician Richardson to keep personnel off the shovel, but Bissell
nevertheless directed 5 men to work on the shovel (Exhibit P-3).
3. The seven members of the shovel crew filed an employee complaint
with the Joint Health and Safety Corrnnittee. Robert Snyder, as the Teamster
union stewart, filled out the complaint. All members of the crew signed
the complaint (Tr. 57, 61-62, 387, P-3).
4. Lund was in the manbasket preparing to repair the shovel; if there
had been a short he could have been electrocuted when the power was turned
on_:_t (Tr. 55).
5. Worker DeAnda and al 1 of the members of the crew were interviewed
by the Joint Safety Committee which consisted of Arno Gates (for
management) and Walter Yturralde (for the union) (Tr. 57, 58, P-3).

6. The Joint Safety Committee is provided by contract between Anamax
and the workers. Under the contract an employee is to report an unsafe
condition to his supervisor. If they do not agree the worker has a right
to relief from his job and he may return on the next shift without discipline. If the right is exercised there is an automatic invest ation by
the Joint Safety and Health Committee which consists of an equal number of
representatives for management and the union. If the individual's actions
are found to be justified he'll be paid for the time he was off the job
{Tr. 503, 504).
In this instance the Connnittee report outlined the power shovel
dispute, made recommendations, and concluded that there could have been a
communication problem between Richardson (electrician) and Bissell (foreman). Further, the Committee concluded that the two men working on the
tracks and the welder working on the boom out of the bucket could have been
hurt when power was restored if there still had been a short in this
machine. Fortunately, this did not happen because there was no power due
to faulty circuits. Also the high voltage fuses had blown.

8. Worker DeAnda, a member of the crew, was not treated any
differently after the shovel incident than before (Tr. 61),
9. Within one or two weeks after the incident, about April 1, 1980,
Lund went to the Anamax safety office and gave a statement to Gerald
Johnson, Anamax's Director of Loss Prevention. Lund volunteered to give
the statement because the company had not disciplined anyone as a result of
the shovel incident (Tr. 390-391, 774).

1/ Apparently the crew did not walk off of the job nor resume work. While
the crew discussed the problem with Bissell the electrician arrived (Tr,
54).

253

10. Gates and Yturralde were present in the safety office when Lund's
statement was taped (Tr. 393).
11. Lund declined the company's offer of a copy of the tapes or a
transcription of his statment at that time (Tr. 397).
12. Johnson testified that Lund requested that the tape be played by
Johnson for "the powers that be" and it was (Tr. 778).
13. According to Johnson he played Lund's tape for Pijanowski (Vice
President, Personnel, Johnson's superior); for the shovel and drill crew
management comprising of Kepner, Maderas, and Bissell; also he played it
for Rosson, maintenance superintendent, as well as some for the Anamax
Legai Department (Tr. 805-806).
Lund is correct when he states that his activities in reporting to the
Anamax safety department were protected under § 105(c) of the Act, However, at this point no retaliatory moves had been made by Anamax. If there
is no discriminatory retaliation there is no violation of the Act, It is
accordingly necessary to review the subsequent events.
I

TIPPING FRAME 1NCIDENT 2 /
14, Lund was dispatched out of the weld shop to work on a drilling rig
(Tr. 134-135, P-7).
15. A portion, or about half, of the area where the drilling rig was
situated had been blasted (Tr. 135-136).
16. As Lund was welding underneath the outrigger the pad behind him
rose and because of the loose ground the drill started to tip over (Tr.
136-139).
17. At th is point Maderas (Bissell' s supervisor) drove up, and
started hollering. The mechanics immediately told Lund to get out from
under the drill (Tr. 138, 139).
18. Foreman Bissell was at the site before the drill started to tip
over (Tr. 399).
Lund's theory here is that he was discriminated against because he was
told to work in a situation which proved to be unsafe. The Act and its
legislative history do not support Lund's theory of the case.
Discrimination occurs when a mine operator retaliates against a miner
because the miner engaged in a protected activity.

2/

Paragraph 1 of the amended complaint.

254

II

USE. OF WELDING TRUCK WITHOUT BACKUP AIJARM 2J
Witnesses: Lund, Miller, Ypulong, Johnson.
19. Two or three weeks after his statement was taped, Lund's duties
required him to use a truck (Tr. 140-145, P-8, P-9).
20. The truck did not have a backup alarm. When he discussed the
problem with his foreman (Ypulong) he was told to take the truck, be
·careful, and tag it out when he returned (Tr. 146, P-10).
21. Foreman Dayton Miller arrived at 6:30 for the 7:00 0 1 clock
shift, He was hostile and mad and he told Lund he could receive a safety
warning letter 4/ for taking the truck (Tr. 147, 148),
22. ·No one had ever been issued a safety warning letter for using a
truck without a backup alarm (Tr, 148),
23.

Lund did not receive a safety warning letter (Tr, 148, 410).

24 •' When Lund complained to Johnson about Miller 1 s threat of issuing
a safety warning let.ter Johnson checked the truck 1 s records. The records
showed the truck was in "rebuild" until the shift before Lund used it (Tr,
786).
3/

Paragraph 2 of amended complaint.

4/ The Safety Warning Letter finds its basis in Anamax's 54 page rule book
which provides, in part, as follows:
SAFETY WARNING LETTERS
Safety Warning Letters will be issued to cover infractions of Anamax
Safety Rules, federal, state and local health and safety laws.
FIRST LETTER:
SECOND LETTER:
THIRD LETTER:

Warning (See next paragraph)
Mandatory minimum three days suspension.
Mandatory termination, if issued with 12 month
period (Not calendar year.)

The seriousness of the infraction will determine the degree of
corrective action taken, ranging from the above specified standards to
termination for either the first or second letter issued. (Exhibit P-18,
R-2).

255

25. Johnson further told Lund he should have received a safety
warning letter (Tr. 784).
26. The truck also lacked a whip light (similar to an off of the road
antennae).
27. Lund told Miller he considered that the threat of the issuance of
a safety letter was retaliation for his taped testimony. Miller denied
that (Tr. 148).
28. Miller treated Lund the same as any other worker, and he told him
if he checked out a similar truck in the future someone would give him a
safety warning letter (Tr, 696),
It is not necessary for this decision to consider whether the events
here constitute a violation of
le 30, Code of Federal
lations,
Section 55.9-87, or the same regulation at Section 56.9-87. The MSHA
mandatory standard provides as follows:
Mandatory. Heavy duty mobile equipment shall be
provided with audible warning devices. When the operator
of such equipment has an obstructed view to the rear, the
equipment shall have either an automatic reverse signal
alarm which is audible above the surrounding noise level :ir
an observer to signal when it is safe to back up,
No evidence supports Lund's conclusion that the threat of the issuance
of a safety warning letter was in retaliation for his taped statement to
the safety department. Miller's statements to Lund occurred immediately
upon his discovery of the use of the truck. Johnson, the director of loss
prevention, thought such a letter should have been issued. This evidence
supports the view that Miller's anger was genuine and not related to
Lund's protected activity.
Lund claimed the truck had been used by 12 shifts, or 12 people,
before he used it but I accept Johnson's testimony because he checked the
truck 1 s records. These records indicated the truck was in "rebuild" until
the shift before Lund used it (Tr. 785, 786).
A safety warning letter generally is issued by a foreman and such a
letter is not unusual. Approximately 50 such letters were issued in the
last 12 months (Tr. 806-807). The issuance of a safety warning letter or
the legitimate threat of the issuance of such a letter, as in this
situation, is a prope~ management device.
III

FOREMAN RAEL REPRIMANDS LUND FOR NOT
GOING THROUGH THE CHAIN OF COMMANDS/
Witnesses: Lund, Rael
5/

Paragraph 3 of the amended complaint.

256

29. Immediately after Lund concluded his discussion with Dayton
Miller (in II) he left. ·He walked about 200 feet and met Tony Rael,
Miller's supervisor. Rael asked Lund why he went around the chain of
command and shot his mouth off to Johnson. Furthermore, why hadn't he
notified Rael if he had a problem (Tr. 150-152).
30. Rael told Lund it was company procedure for a worker to go to his
superintendent with a safety problem. He further explained that if the
worker did not obtain relief, (as from foreman Miller), he could go to the
next senior supervisor (to Rael), or to Rosson, and right on up (Tr. 524,
525).
31. Lund told Rael the three page handwritten statement concerning
the shovel incident was on Rael's desk. Rael said he hadn°t seen it. Lund
said he was upset and Rael said to write
out or write a book (Tr.
151-152).
32. Lund and Rael also discussed the· backup alarm. When he was asked
to elaborate Rael said that weld trucks didn 1 t need a backup alarm (Tr.
152).
33. Lund asked about various safety matters and Rael didn't have the
answers (Tr. 152).
Lund, in rebuttal, asserts that Rael's testimony is only correct
insofar as he spoke about workers
through the chain of command (Tc.,
835).
Lund's rebuttal testimony is not further discussed at the hearing or
in his post trial motion. I assume he
complaining about Rael's
characterization that he did not reprimand Lund which conflicts with Lund's
statement that he was reprimanded. In any event such testimony of each
witness is conclusory in nature and it
necessary to look to the actual
statments of each of the participants.
Reprimand, according to Webster!!_/ means "a severe or formal
reproof", or "to reprove sharply or censure formally usually from a
position of authority." In the latter sense Rael did censure Lund.
However, the uncontroverted evidence is that it is company policy for a
worker with a safety complaint to first complain to his immediate superVLsor. If the situation is not relieved then the worker goes to the second

6/

Webster's New Collegiate Dictionary, 1979.

257

tier supervisor (such as Rael or Nelson) (Tr. 608-611). Rael and Nelson,
the second tier supervisors, both indicated that Lund had never come to
them with a safety complaint (Tr. 525, 610). The purpose of a worker first
going to his immediate supervisor with a safety complaint is to give that
supervisor an opportunity to correct the condition (Tr. 524J. While Lund's
explanation is that he went to Johnson's safety department because he was
unable to accomplish anything at the lower level (Tr. 525), I conclude Rael
had a legal right to reprimand Lund for not following the company
procedure.
Rael had been told by the supervisors that Lund was argumentative and
going to the safety department to register complaints rather than routing
them through the line supervisors (Tr. 524). The absence of Lund at the
safety department presented scheduling problems for Rael (Tr. 527).
There are three avenues a safety complaint can go at Anamax. These
are the Joint Safety and Health Committee; a complaint lodged with the
supervisor and up the chain of command; and a complaint lodged directly
with the safety department. In short, I conclude that Rael had a
right to reprimand Lund. Cf Chacon v. Phelps Dodge Corporation, WEST
79-349-DM (November 13, 1981).

IV
ROSSON THREATENS LUND WITH SAFETY LETTER 7 /
Witnesses: Lund, Johnson
The events here are a sequel and they occurred on the same morning
that Miller threatened to issue the safety warning letter for no backup
alarm in II, and the conversation with Rael in III (Tr. 155-158).
34. Lund went to Johnson's office to report the situation (Tr.
155-158).
35. Lund related to Johnson his conversation with Miller and Rael.
Johnson said he'd take care of it (Tr. 156).
36. Rosson (management) talked to Johnson over the telephone while
Lund was in Johnson's office (Tr. 413).

7/

Paragraph 4 of the amended complaint.

258

37. Lund couldn't hear Rosson t1lking to Johnson but Lund said he'd
take a safety letter if one was issued to every welder and foreman who took
the truck as well as those who assembled it without the alarm (Tr.
414-415).
38.

Rosson didn't talk to Lund personally (Tr. 158).

39. Johnson didn't recall talking to Rosson over the phone about
whether Lund should get a safety letter (Tr. 786-787).
Lund claims Rosson threatened the issuance of a safety warning letter
while he (Rosson) talked to Johnson. Lund didn't hear the conversation nor
did he talk to Rosson. Johnson doesn't recall the conversation. I
cone l ude there is no bas is in fact for the allegation since there is no
showing how such a threat was ever conveyed to Lund. The proof of this
allegation fails.

v
RUPTURED FUEL TANK ON WELDING MACH1NE 8 /
Witness: Lund

40. Right after lunch, (on an unstated date)~ Lund found a split
seam on his gas tank, The seam crack had a hole in
(Tr. 158-163 9 424).
41.

Raw gasoline was running into the armature (Tr. 161).

42. When he found this situation Lund rolled up his gear and pulled
away (Tr. 161) •

43. Within 5 to 15 minutes foreman Bissell appeared. He refused
Lund's request for the water truck to wash down the gasoline (Tr. 162).
44. Bissell told Lund to return the truck and get another. Lund was
concerned about the 20 gallons of gasoline in the welder and 26 gallons of
gas in the tank of the truck (Tr. 162).

45.

Lund didn't see anyone puncture the tank (Tr. 424).

46. Bissell said he'd assume responsibility for fire, which did not
occur (Tr. 162, 430).
Lund alleges that someone punctured the tank (Tr. 424). At the time
of this incident, Lund thought he was "being hunted", but he didn't write
on his equipment defect report that someone had punctured the tank because
he wanted to "catch them" (Tr. 426, 428). There is no evidence to support
Lund's view that some person or some person on behalf of Anamax was
"hunting him."
8/

Paragraph 5 of amended complaint.

259

Lund is entitled to think whatever he wants, but on the basis of the
evidence I conclude that, at best, he was required to return a truck that
was leaking gasoline. As previously discussed in paragraph I these
activities do not constitute discrimination under the Act. Lund would have
been justified in refusing to drive the truck under the conditions he
described, but his evidence does not support a claim of discrimination.
VI
RYDER'S STATES "I DON'T GET MAD, I GET EVEN 119 /
Witnesses: Lund, Hyder
47. Two to three weeks after he made the tape concerning the power
shovel incident, a remark brought up the subject and Lund asked his direct
weld shop foreman, Jerry Hyder, if he had any hard feelings (about the
tape),
480

Ryder's reply was "I don't get mad~ I Just get even. 11

49.

Hyder hasn't done anything to "get even" (Tr, 432),

50. Hyder explained that there was something said about a person
getting mad hence the nature of his answer to Lund (Tr. 765).
51,

Ryder's statement was made in a joking manner (Tr. 765, 766),

52.

Hyder knew about the tape recording (Tr. 766).

According to Webster's New Collegiate Dictionary a threat is defined
as 1: 11 an indication of something pending [the air held a-- of. rain] 2: an
expression of intention to inflict evil, injury, or damage 3: something
that threatens. 11
Lund indicated that it didn't appear to him that Hyder was joking and
"he sure didn't smile" (Tr. 165). I find Ryder's view that his statement
was made in a joking manner is more credible. By it's very nature Ryder's
reply requires a touch of solemnity. Further, in finding this a mere
exchange between the parties I note that Hyder never did 11 get even." He
certainly had the opportunity since he was Lund 1 s direct weld foreman and
responsible for the safety equipment on the truck (Tr. 163, 164).
VII

ATTEMPTED DISMISSAL OF LUND BY BISSELL ]!}__/
Witnesses: Lund, Hyder, Johnson

9/

Paragraph 6 of the amended complaint.

10/ Paragraph 7 of amended complaint.

260

53. On a workday during the last t.wo weeks in July, Lund was dispatched to work on a shovel for Bissell (Tr. 168).
54. Lund cut off a catwalk and had laid out material to construct a
new one (Tr. 173, 434, P-13, P-14, P-15).
55, Bissell arrived and told Lund to modify the- old catwalk and put
it .back (Tr. 174).

174)

56.

A heated argument ensued (Tr. 174).

57.

Lund refused to build the catwalk the way Bissell wanted it (Tr.

0

58. Lund told Bissell if he wanted to take him "to the gate 11 he'd
have to get some security guards (Tr. 175).
~aid

59. Lund was upset and when Bissell returned without any guards Lund
he was sick (Tr. 175).

60. Lund went to the guard shack and called Gerald Johnson in the
safety department (Tr. 177).
61. Johnson appeared, investigated the incident~ and said there was a
misunderstanding over Lund 1 s work attitude (Tr. 788).
62. Hyder initially marked Lund's time card to indicate he was being
sent home for disciplinary action but later, because of Johnson, he changed
it to show that Lund went home "sick" (Tr. 768, 769),

61.

Lund was not disciplined nor fired as a result of this incident

(Tr. 178, 179).

64. A front line superintendent (such as Bissell) has no authority to
dismiss an hourly employee (Tr. 787).
Lund's theory in this incident is that discrimination occurred when
Bissell refused to listen to Lund's reasons why Bissell was wrong in his
instruct ions. Bissell. told Lund to do the job the way he (Bissell) wanted
it done (Tr. 435).
An hourly employee does not have a right to direct a supervisor in an
area within the supervisor's authority. However, Lund's testimony is
considered a general complaint of a supervisor's directive that could
result in an unsafe condition. As such the complaint is a protected
activity. Lund's evidence shows a type of catwalk construction done
incorrectly (Tr. 169, P-13) and one done correctly with a center splice
(Tr. 169, P-14), However, while the record favorably supports Lund's
ability as a craftsman, I am unable to perceive from the evidence whether
Lund's claim of an unsafe condition is reasonable, The Commission has
required that to support a refusal to work a miner's perception of the
unsafe condition must be reasonable. Robinette, supra. In this situati~n
it is not possible to tell whether the argument between Lund and Bissell
was over the asthetics of the catwalk or over a unsafe condition that might

261

arise if Bissell's instructions were followed. Inasmuch as the reasonableness of Lund's perception is not shown it follows that this claim of
discrimination cannot be sustained. Further, I find the action attempted
by Bissell was unrelated to any protected activity. It is apparent that
the argument was over who would be "boss", :(..und or Bissell. To reach for
the conclusion that Bissell was retaliating because of some protected
activity by Lund is not justified under the evidence.
VIII
TEN DAY ATTENDANCE DISCIPLINE LETTER
RECEIVED BY LUND. THE LETTER WAS ISSUED IN ERROR _!!/
Witness: Lund
65. Lund received a discipline letter stating that he had been
charged with ten absences in the past 12 months (Tr. 179).
66. Lund had missed only eight days, When Lund contacted foreman
Dayton Miller the error was corrected and the letter withdrawn (Tr.
180-181).
67. Lund could not get an answer as to who was responsible for the
letter (Tr. 181).
The Anamax procedure on employee absences is discussed infra.
The evidence here fails to establish any discrimination against Lund.
When the error was established the letter was withdrawn. A mere error in
an internal company procedure will not generally support a claim of
discrimination.
IX
LUND RECEIVED SAFETY DISCIPLINE LETTER FOR LIFTING A LINER
WITHOUT HELP. HE ASSERTS THE LETTER WAS ISSUED COMPLETELY WITHOUT
GROUNDS.

Q/

Witnesses: Lund, Foster, Hensen, Johnson
68. On July 26, 1980 Lund was welding liners on a shovel bucket (Tr..
182-184, P-16).
69. Supervisor Foster and two mechanics assisted Lund in setting two
or three liners in place. A man was on each corner moving the liners into
place (Tr. 182, 563).

11/

Paragraph 8 of amended complaint.

12/ . Paragraph 9 of the amended complaint.

262

70. Without any assistance from Foster and the mechanics, Lund,
toward the end of the shift, took the remaining liner, tipped in back on
one corner, and dropped it on the floor (Tr. 185).

71. When Foster left the work area the liner was three to three and
one half feet from where it was to be placed (Tr. 552).
72. Lund then took a 24 inch crowbar and moved the liner around until
it got to the spot where he could tack it down (Tr. 186).
73.

Lund felt a twinge in his back (Tr. 186).

74. The liners weigh 208 pounds and measured 24 by 36 inches; it is
one and half inches thick (Tr. 185, 189, P-38).
75. When Lund reported the incident of possible back injury to Foster
he was asked
he wanted to file a written report. Lund declined. When
his other foreman suggested he report it, he did (Tr. 187).

76. Foster, who was not aware of the shovel incident nor aware of
Lund's safety complaint to Johnson, stayed overtime to investigate the
incident (Tr. 554).
77. Foster conferred with Kepner and Maderas before issuing the
safety letter to Lund (Tr, 565, P-2),

78. The safety warning letter ind ated Lund 1 s actions violated an
Anamax safety regulation by "lifting a shovel liner that was too heavy for
one person to lift when lifting equipment was available." Further, the
letter stated that a repeated formal warning of "safety infractions" would
Lund to disciplinary action (P-2).
79. Section 6 of Anamax's safety rules discusses handling materials.
Subsection A provides: "Do not lift bulky or heavy material by yourself,
get help" (R-2).
80. Foster, when he left the work area, told Lund to call him on the
portable radio if he needed help (Tr. 550).
81. Johnson, Director of loss prevention, received a copy of the
letter, talked to Lund, and investigated the incident (Tr. 789).
82.

Johnson concluded that the letter had been properly

sued (Tr.

790).
83. In Johnson's 15 years with Anamax two workers had been discharged
for receiving a safety warning letter (Tr. 790).
The issuance of a safety warning letter is an internal company safety
procedure. The evidence here fails to establish that the issuance of the

263

letter to Lund was clearly pretexual. The uncontroverted evidence here
establishes that a man on each corner helped lift the first two or three
liners into place (Tr. 549, 563). Mechanic Hansen further indicated that
welders usually request help when moving the liners (Tr. 49). Therefore, I
do. not find Lund's testimony credible which to the effect that fie handled
the liners alone for one and a half years prior to this incident (Tr.

189).
Accordingly, Anamax was justified in issuing Lund a safety letter. In
his rebuttal evidence Lund says the portable radio issued to him was
inoperable (Tr. 838). However, the gravamen of this claim is whether the
issuance of the letter was a disguiied effort at retaliatory conduct. For
the reasons stated, I conclude it was not.

x
LUND'S GRIEVANCE LETTER PROTESTING THE
SAFETY WARNING LETTER DISAPPEARS

1lf

Witnesses: Lund, Nelson, Miller, Matthews

84. Al Matthews, a steward for the Operating Engineers at Anamax,
deposited a grievance letter for Lund in the grievance box in August, 1980.
Lurid was protesting the safety warning letter he received in IX (Tr. 13).
85. Under the labor contract, a grievance procedure initially goes to
the Anamax foreman. If the grievance is denied it then goes to the union is
chief steward (Tr. 13-14).
86. In three days Lund's grievance was denied. In accordance with
ordinary procedure, Matthews deposited the grievance letter for the Chief
steward by depositing it in the focked union box situated at the Anamax
main gate (Tr. 14-16).
The chief steward, after removing the grievance, sets up an additional
hearing in the union appeal process (Tr. 15).

87. The purpose of the union box is to pass notes between union
stewards and the chief steward in the appeal process (Tr. 21, P-1).

88. Before any action was taken on the grievance and after an
extended strike at the mine Lund contacted Anamax labor relations and was
advised they had not seen his grievance (Tr. 193).
89. Nelson, the acting chief steward, hadn't seen Lund's grievance,
and he checked with the other stewards who indicated they didn't have it
(Tr. -30).
90. Persons having access by key to the union box include management,
and the chiefs stewards of the Operating Engineers, the Teamsters, the

):1/

Paragraph 10 of the amended complaint,

264

International Brotherhood of Electrical Workers, and the Steelworkers (Tr.
27, 29).
91. After the strike a number of grievance letters could not be
accounted for (Tr. 33).
92. Since Lund was not a union member he could go to one of three
unions and they would be required to represent him (Tr. 28).
When mail is properly addressed and deposited in the United States
mail, there is a rebuttable presumption of fact that it was received by the
addressee in the ordinary course of mail, I
Evidence § 95 at 524
(3d ed 1940); Weinstein on Evidence~ 406 (
Several difficult s prevent the rise of any
ion in this case"
st, Anamax and four unions have access to the box. Second 0 an 83 day
strike intervened. Third, a number of grievance letters apparently were
lost about the same time, Therefore, there is no presumption to explain
what happened to Lund 1 s letter.
Accordingly, there is a failure of proof that Anamax removed Lund's in
retaliation for any protected activity.

XI
LUND'S DAMAGED TOOL BOX WAS
NOT REPLACED FOR TWO MONTHS
Witnesses: Lund, Miller

93. Four to six weeks before the strike Lund requested that his tool
box be replaced because it had been damaged. In accordance with Anamax
policy, the company agreed to replace the box (Tr. 199, 443).
94. Miller ordered the tool box the same day Lund showed him his
damaged box (Tr. 700, 702, 722).
95. During the strike Lund called Johnson who located the box in
storage (Tr. 199, 701).

96. The tool box came into the company in about two months and it was
two or three weeks before it was brought to Miller's attention (Tr. 722).
I see no discrimination nor retaliatory action in the above facts.
Anarnax followed standard policy and agreed to replace Lund's tool box. The
order was placed. Anamax cannot be held responsible for a vendor's delay
in delivering a tool box.
An inconsequential credibility issues arises in this incident. Lund
says Miller told him the day before the strike that the tool box had not
been ordered. Miller testified that the tool box was ordered the day Lund

14/

Paragraph 11 of the amended complaint.

265

requested it. I give credit to Miller's testimony because such evidence is
more credible on the record as a whole.
XII

LUND IS DISPATCHED ALONE, WITHOUT A RADIO, TO CUT
AND WELD ON A PAIR OF SIDE FRAMES. HE FOUND FOUR HALF
FILLED BUCKETS OF SOLVENT UNDER THE FRAMES J.2/
Witnesses: Lund, Miller
98. On the first Saturday shift after the strike concluded
(approximately· November 1, 1980) shovel superintendent Shelley assigned
Lund to do routine repairs on side frames resting on timbers (Tr. 202-204,
P-19).
99. Lund would be using his torch and regular welding outfit to
rebuild the framework (Tr. 204).
100. In looking over the area Lund found four clear five galion haif
full buckets of solvent underneath the sideframes (Tr. 205).
101.

Lund removed the buckets (Tr. 208).

102. The yard where the frames were located was somewhat of a junkyard and it was used for storage (Tr. 209-210).
103. Anamax's standard procedure permits welders to weld outside of
the shop without a radio (Tr. 210, 211, 447).
104.

Lund didn't see anything in the yard that needed cleaning (Tr.

211).

105. Lund considered it his responsibility as well as his foreman's to
remove solvents from the area (Tr. 449).
Lund testified that these solvents had been set as a "trap" for him,
(Tr. 450) but foreman Miller's uncontroverted testimony is that it is
customary for solvents to be in this area (Tr. 721). One would also expect
solvents in an area where there were worn out parts.
Lund's claim of discrimination also lies in his stated but unpleaded
argument that it is discriminatory for a man to· be assigned to a job
without a radio. This matter is an internal business decision by Anamax.
I will not upset such a business judgment unless the action by Anamax was
actually taken in retaliation for some protected activity.

15/

Paragraph 12 of the amended complaint.

266

At best, Lund established an unsafe work place resulting from the
proximity of the solvents and the lack of a radio. The same ruling as
paragraph I is applicable here.

in

XIII

LUND IS REFUSED PERSONAL PROTECTIVE EQUIPMENT
ON JANUARY 31, 1981, AND FEBRUARY 1, 1981 J!!.../
Witnesses: Lund, Miller, Taylor, Hyder
MADERAS INCinENT
106. On this occasion Whitmore lubricant was dripping into the area
where Lund. was welding (Tr. 213, P-23).
107. Lund asked for personal protective equipment other than the pair
of leather shoulders. Maderas (Bissel 1 s foreman) said 11 1' 11 think about
it. 1u Further, Maderas told Lund that "I like to see you get your pants
dirty'' (Tr. 214).
108.

Lund did the work and burned holes in his pants (Tr. 214).

109. Lund also asked for a mechanics paper protective suit and an
asbestos blanket (Tr. 214~ 215, 450-451~ P-20).
· 110.

Lund ~ade this request three times (Tr. 218).
TAYLOR INCIDENT

111. The following day, February 1, 1981, Lund was directed to weld
in a gear blank on the underneath side of an S-10 shovel (Tr. 218).
112.

The grease lined gear box was seven to eight inches over Lund's

head.
113. Lund told supervisor Taylor that he needed protective clothing
and ventilation (Tr. 218).
114. Taylor brought a fan but the A/C motor burned out on the D/C
current of the welder (Tr. 220, 221).
115. Taylor didn't give Lund a paper suit.
hazard of such suits to Lund (Tr. 534) ..

He further explained the

116. Welders are issued leather sleeves and gloves, small aprons,
safety toe shoes, hard hat, glasses and a welding hood. Anamax replaces
any ·damaged leather jackets, but it does not require them (Tr. 704, 706,
760).
117. Lund had the standard equipment as is issued to any welder, but
he did not have a leather jacket (Tr. 706).
16/

Paragraphs 13 and 14 of the amended complaint.

267

Lund claims he was discriminated against because he wasn't issued the
necessary clothing to do the job without injury. An MSHA regulation
concerning protective clothing or equipment is contained in Title 30, Code
of Federal Regulations, Section 55.15-7, which provides as follows:
55.15-7 Mandatory. Protective clothing or equipment
and face-shields or goggles shall be worn when welding,
cutting, or working with molten metal.
The issue here is whether Anamax discriminated against Lund in
violation of Section 105(c). The issue is not whether the standard was
violated. I conclude Lund's complaint of discrimination fails.
The evidence in connection with the Maderas incident shows Lund asked
for protective clothing. Maderas refused and Lund did the welding but
burned his pants (Facts 106, 107, 108, 109). The availability of the
jacket in the cage (Tr. 451-453) is not relevant to a determination of the
issue. As indicated in paragraph 1 of this decision Lund was engaged in a
protected activity when he protested the lack of protective equipment. At
that point he could have validly refused to work. However, the Act
is not intended to reward a worker for working under an unsafe condition,
Anamax did not further discriminate against Lund for engaging in his
protected activity. Maderas remarks, certainly not the most pleasant, fail
to show that Maderas was discriminating against Lund for his protected
activity in protesting the lack of personal protective equipment.
The Taylor incident does not involve a refusal to furnish protective
clothing but rather it concerns a dispute over its use. Lund clearly
testified he asked Taylor for ventilation and protective clothing (Tr.
218). Taylor brought a fan (Tr. 220). However, Taylor refused to provide
a paper suit as he thought it would be more hazardous. Taylor explained
the hazard to Lund (Tr. 534). Lund claims Taylor refused him protective
clothing, (Tr. 220) but both Lund and Taylor agree that Lund obtained and
used a paper suit (Tr. 221). Lund describes it as "tore up" and that it
had been under the seat of his truck (Tr. 221). Taylor says Lund got one
from the weld shop (Tr. 534). The origin of the paper suit is not vital.
The ultimate facts establishes that Lund used protective clothing.
Taylor's refusal does not show any discriminatory intent but rather was a
dispute over the safety of the paper suit. If Taylor intended to retaliate
against Lund for his protected activities one would hardly expect that he
would secure a fan and argue over whether a mechanics paper suit could be
safely used. In summary, no evidence of discriminatory or retaliatory
conduct is shown here.
XIV
LUND IS VERBALLY ABUSED BY SUPERVISOR DON NOEL lJJ

Witnesses: Lund, Mattausch, Butler, Vanderburg, and Noel
118. On February 12, 1981, Lund, Vanderburg, and Mattausch were
discussing the shovel incident in the heavy equipment maintenance shop when
supervisor Don Noel walked up to the group (Tr. 73-75).
17 I

Paragraph 15 of the amended complaint.

268

119. Noel, a line foreman, in an above normal and sarcastic tone,
called Lund "a Jerry Johnson suck ass" (Tr. 74, 75, 85).
120.

Mattausch and Vanderburg laughed, but Lund didn't (Tr. 80, 85).

121.

Gerald Johnson is head of the Anamax safety department (Tr.

77).

122. Noel went into the office and he was talking to Lund's foreman
concerning what Lund was doing and why he was talking to the two men, etc,
(Tr. 23 7).
123. Lund interrupted, explained his work, and he made an issue about
what Noel called him. Lund then left (Tr. 237-238).
124. It is the practice to swear in the maintenance shop and
Mattausch had heard Noel swear before (Tr. 77).
125. After leaving the office Noel came to Lund and said he didn't
mean it the way it sounded, He apologized (Tr. 94, 238).
126. Johnson, within a week, told Lund the insult was to Lund alone.
Lund then filed a complaint, Johnson told Lund not to "smack" anyone (Tr.
238-239).
A credibility issue arises between Noel's and Lund's versions of this
incident particularly as it relates to Noel 1 s stated reason for referring
to Gerald Johnson. Noel says he mentioned Johnson because his name just
"popped into his head. 11 I find the likelihood of that to be so remote as
not to be credible. I find that Noel's remark was a rather clear reference
to Lund's protected activities in protesting to the Anamax safety
department. The legislative history indicates that the Congress intended
to protect miners against not only the common forms of discrimination,
[naming a few] "but also against the more subtle forms of interference such
as promises of benefit or threats of reprisal." Legislative History of the
Federal Mine Safety and Health Act of 1977, 95th Congress, 2nd Session 624
(July 1978).
The difficulty with Lund 1 s position is that the statements by Noel
does not constitute a threat of reprisal. It is not shown that any
discriminatory action was taken by Noel against Lund. Noel's remark is not
a threat, ~ paragraph VI, supra. It did not injure Lund or .his employment
in a way that Congress intended to prohibit. It was merely a derogatory
statement which are commonplace among some workers. Congress in my view
did not intend to legislative in the area of derogatory statements made in
the work place.

269

xv
LUND RECEIVES IMPROPER FIRST AID
TREATMENT FOR AN EYE INJURY. HE IS
FURTHER REFUSED A TAXI SLIP BACK TO
THE MINE AND A· SECURITY OFFICER REFUSES
TO TELEPHONE GERALD JOHNSON HIS BEHALF ~/
Witnesses: Lund, Taylor, Rosenthal, Johnson, Bishop,
and Weathers
The following events occurred in sequence.
125.

On February 1, 1981, Lund was welding on a large conveyor (Tr.

240).
126. When supervisor Taylor appeared Lund said he had a foreign body
in his eye. Taylor took Lund to the Anamax aid station (Tr. 240}"

127, Bishop, the emergency room technician, said he wasn 1 t going to
examine the eyes until they were washed out in the high pressure eye wash
(Tr. 240-241).
128. After using the eye wash Bishop examined Lund's eyes with a
large magnifier and he indicated he couldnit find any foreign object {Tr.
241' 242) .

129. Lund's eye continued to bother him so he returned to the first
aid room and Bishop took him to the hospital (Tr. 242).
130.. Dr. Rosenthal, the enunergency room physician, without any
magnification saw that Lund had a foreign body in his eye (Tr. 66-70,
P-4).

131. It is inappropriate to use a high presure eyewash before the eye
is examined (Tr. 70, 71).
132. Dr. Rosenthal anesthetized the eye, removed a one to two
millimeter metallic body, and patched the eye (Tr. 68).
133. In the emergency room Bishop handed Lund a taxi slip. The
company later pays for the worker's taxi fare home (10 miles). Lund asked
for a taxi slip to get back to the mine (28 miles) to get his vehicle (Tr.
243, 244, 459, 640-644, 791, P-25).

18/

Paragraphs 16, 17 and 18 of the amended petition.

270

134. At Lund's request Bishop called John Caylor, Johnson's assistant
on duty on that shift. Caylor refused Lund's request for a taxi slip to
the mine (Tr. 649).
135. Lund asked Weathers, the security guard, to call GeDald Johnson
at his home. Weathers refused because Caylor was on duty, that is, he was
in charge of safety and health matters at that particular ~ime (Tr.
648-652).
136. Bishop, an emergency medical technician, received forty hours of
training in that specialty. He also receives annual refresher courses (Tr.
631, 632).
137. It is Anamax's policy to furnish workers with a taxi slip to go
from the hospital back to their residences (Tr. 639).
138. If an individual lives beyond the mine the company issues a taxi
slip only to the mine (Tr. 646}.
1390 Bishop has given out approximately 24 taxi slips in the last 12
months (Tr. 641).
There are two. areas of cre'dibility in this incident. Lund says Bishop
didn 9 t examine his eye before telling him to use the eye wash. Bishop, to
the contrary says he "believes" he examined Lund 9 s eyes before the wash.
The belief of a witness is far less persuasive than positive testimony,
The second area of credibility involves the conflict of whether Lund
complained about the taxi slip. The evidence supports Lund's version.
I do not find that the three incidents involved here support a claim
of discrimination nor retaliatory conduct. Taylor took Lund to the aid
station. Although the method of treatment was inadequate no evidence
supports the conclusion that Anamax was retaliating against Lund. On the
contrary, Taylor took Lund to the aid station. Even though the treatment
was inadequate thereafter Bishop took him to the hospital.
In the hassle over the taxi slip, Lund's claim seeks to establish
discrimination based on Anamax's policy. Anamax's policy is to pay a
worker's taxi fare from the hospital to his home. If the worker lives in
the direction of, and beyond the mine, then Anamax pays for the trip to the
mine (Tr. 791-792). Obviously, it is less expensive for Anamax to pay the
lesser amount. It is uncontroverted that Lund was treated the same as
anyone else (Tr. 641). No discrimination nor retaliatory conduct arises in
these circumstances.
Weathers, a security guard, refused Lund's request to call Gerald
Johnson. Weathers refused because Caylor was "on duty" and in charge of
safety and health (Tr. 651-652). A company policy cannot be faulted which
prohibits workers from contacting higher a.uthority when a management person
is already non duty."

271

X\TI

ANAMAX FAILED TO CORRECT AN UNSAFE
CONDITION AT A FUEL LOAD OUT AREA ]J_/
Witnesses: Lund, Ypulong, Miller, Hyder

139.

Lund observed that the seal of the nozzle of the fuel tank used

to fuel his welder was leaking (Tr. 250).
140.

Lund tagged it with a "DO NOT START" tag (Tr. 250, 707).

141. The next night the tag was off and Lund tagged it again and
asked foreman Ypulong why it hadn't been fixed (Tr, 250, 73<'+).
142.

Ypulong said they couldnit get the parts (Tr. 251).

143. A week later the nozzle was still leaking,
he didn't fuel his welder (Tr, 251).

Lund was upset and

144. The next day Lund called Johnson and threatened to call MSHA
(Tr. 251).
145. Four hours later when Lund reported for work the leaking nozzle
had been repaired (Tr. 252).
Lund's activities as outlined above were clearly protected under the
Act. However, no retaliatory action was taken by Anamax. Accordingly, no
claim exists under the discrimination section of the Act.
Lund's query on this complaint is why wasn't the leaky nozzle fixed
sooner? The record does not directly answer this question. Indirectly,
foreman Ypulong indicated the part had to be ordered. In any event, Lund's
position here is that he was required to work in an unsafe condition. The
law in that area has already been discussed in paragraph I, supra.
XVII

LUND IS REFUSED SAFETY EQUIPMENT
BY FOREMAN BISSELL l:...q/
Witness: Lund
146. On this occasion Lund was assigned to do some pin keeper welding
for Bissell (Tr. 253).
14 7.

The pins were rune to ten feet off of the ground (Tr. 25 3) •

19/

Paragraph 19 of the amended complaint.

20/

Paragraph 20 of the amended petition.

272

148. Two mechanics working on the shovel had radios but Lund did not
(Tr. 254).
149. The mechanics, at Lund '-s request, asked Bissell, apparently by
radio, for a ladder. Bissell refused (Tr. 254).
150. Bissell told Lund to use the ladder on the shovel but Lund felt
that the ladder was inadequate because it didn't furnish adequate support
or balance (Tr. 254, 462, 463).
151. Lund took one of the mechanics radio and when he started to
raise cain (about being refused safety equipment) one of the mechanics took
off in the truck and returned with the ladder (Tr. 254-255),
Lund contends he was not given permission to take his truck and get
the ladder he thought he needed, but the mechanic~ who wasn;t invoived on
the repair, was free to zip back and forth and pick up anything he neeaea
(Tr. 255). Lund seeks to have the Commission interfere with Anamax's
internal procedures. I am unwi 1 ling to cio so, The
est of the
inadequacy of a ladder was a protected activity under the Act, However,
th
incident, like all other alleged Bissell related incidents, if they
show protected activity, they fail to show retaliatory conduct for the
protected activity, Bissell was terminated by the company because his
supervision was "inadequate." The mere inadequacy of a supervisory uerson
is not retaliatory conduct under the Acto

XVIII
ON APRIL 7, 1981 LUND ASSERTS THAT HE WAS REFUSED
ACCESS TO THE TAPE HE MADE FOR GERALD JOHNSON
CONCERNING THE SHOVEL INCIDENT ]J_/
.
Witnesses: Lund, Johnson
The details surrounding the tape, or tapes,.3.Y' of the shovel
incident are set forth in Facts 1 through 13, supra.
The only credibility determination here arises in connection with Lund
declining a copy of the tape or a transcription of the statement he gave
the safety department. Johnson says he declined the offer. Lund agrees he
declined the offer but he adds the proviso that he'd get them later, if he

21/

Paragraph 21 of the amended complaint.

22/ The record is unclear whether Lund's 15 minute taped statment (Tr.
776).was recorded on one or more tapes. The decision accordingly at
various times refers to "tape" or "tapes".

273

needed them. I do not find Lund's evidence credible. Lund contac.ted
Johnson a dozen times regarding safety matters but he didn't contact
Johnson about the tapes until a year later, namely April 1981 (Tr.
780-782). In connection with the non production of the tapes I note that
Anamax was under no obligation to. preserve the tapes. Further, I find the
following facts to be credible:
·152.

Johnson didn't refuse Lund access to the tape (Tr. 780).

153. When Lund contacted Johnson for the tape in April 1981, Johnson
said he'd search for them (Tr. 780-781).
154.

The tapes could not be located (Tr. 780-781).

155.

Johnson didn't know if anyone had found the tape (Tr. 781).

Lund was available and testified about his statements on the tape.
This was a protected activity but no evidence supports the view that the
failure to produce the tape was in retaliation.
XIX
ON APRIL 8, 1981 LUND ALMOST LOSES HIS HAND
BECAUSE. OF INADEQUATE LOCKOUT PROCEDURES IN THE CRUSHER
DEPARTMENT A DISCIPLINE LETTER IS THREATENED IF THE INCIDENT
IS REPORTED }:1_/
Witnesses: Lund, Logan
156. At the time of .this incident Lund was dispatched to work in the
secondary crusher building (Tr. 263, P-27).
157.

Lund was with co~worker Harold Crumley (Tr. 264).

158. Crumley was shown by another person where to place his lock to
lock out the equipment (Tr. 265).
159. Lund placed a patch to see if it would fit. The patch fe 11
inside. Just as he pulled his hand out after retrieving the patch, 500 to
600 pounds of muck slid down the chute (Tr. 265, P-28).

160.

The muck fell right where Lund 1 s hand had been (Tr. 265).

162. The people above were calibrating equipment and they showed
Crumley where to lock out the equipment (Tr. 267).
23/

Paragraph 22 and 23 of the amended complaint.

274

163. To lock out properly it was necessary to lock out in three
places (Tr. 268).
164. Logan was first made aware of this incident when an MSHA
complaint was filed (Tr. 658).
165. Logan didn't threaten·Lund about the issuance of a safety letter
for such an incident (Tr. 660).
We will consider the dual complaints in reverse chronological order.
The second issue is whether t.here was a threat of retaliation if the
incident was reported. A credibility issue arises over whether there was
such a threat~ 'That is, did management threaten a safety letter if the
incident was reported. I am not persuaded by Lund's evidence. It is
triple hearsay because hourly workers stated to Crumley that if Crumley or
Lund made "trouble" they'd get safety letters and apparently Crumley
related the statements to Lund. A further difficulty with the credibility
of the triple hearsay statement is the fact that, according to Lundi
"supervision had left" when this incident occurred (Tr. 267), Logan came
on the job after the incident, and I accept his testimony that he did not
threaten Lund with the issuance of safety letter (Tr. 660). In fact, his
first knowledge of the incident was when an MSHA complaint was filed. This
view is confirmed by Lund's testimony to the effect that no one came to h
and said, "I'm going to issue a safety letter 11 (Tr, 467).
The primary issues are whether Lund was engaged in a protected
activity and whether Anamax took retaliatory action. Lund was working as
a welder in his ordinary activity. No protected activity was involved.
Lund seeks to prove that the falling muck occurred as a result of his
statements to the safety department, but no evidence supports that view.
Quite to the contrary, whoever put the conveyor in motion and apparently
thereby released the muck was on the floor above where Lund and Crumley
were working. There is no showing that persons on a different floor could
even have known of the presence of Lund and Crumley.
Lund contends discrimina.tion occurred here because these two incidents
were not "sorted out" when Lund wanted to have them investigated (Tr. 465).
No further evidence is offered in support of the argument of how the two
instances were not "sorted out", and since I find no protected activity nor
retaliatory conduct, it follows there is no merit to the argument.

xx
LUND IS GRANTED EMERGENCY MEDICAL LEAVE TO BE
PRESENT AT THE BIRTH OF HIS CHILD; THE LEAVE IS THEN
REVOKED. FURTHER, AN ATTENDANCE DISCIPLINE IS ISSUED
AFTER LUND'S ABSENCE 24/

24/

Paragraph 24 and 25 of the amended complaint.

275

Witnesses: Lund, Miller, Nelson, Pijanowski
166. On April 20, 1981, just prior to the birth of his child, Lund
asked supervisor Rael for a couple of days [or half a day] of emergency
leave (Tr. 275).
167. Supervisor Nelson called back and said he thought it would be
all right (Tr. 275).
168. Later, Nelson called Lund again and said Lund couldn't have the
leave he'd previously approved, The reason given by Nelson was that it was
not in accordance with company policy (Tr. 275-276).
169. For being absent while he took his wife to the hospital Lund
received an attendance letter (Tr. 277, P-26).
170. Lund didn 1 t know of anyone else at Anamax who had been given
permission to be with their wife at the birth of a child and who was not
charged with an absence that would count against their attendance record
(Tr. 468).
171. Nelson treated Lund the same way as any other miner. His leave
would be without pay and he would be charged for the days he was absent
(Tr. 612).
172.

The Anamax written absentee control policy is dated January l~

1977.
173. Anamax has three classes of absences: AWOL, chargeable, and non
chargeable (Tr, 499).
174. A worker is AWOL if his absence is unexcused.
absences results in termination (Tr. 499).

Five unexcused

175. A worker is allowed 16 chargeable absences in 12 months. At the
8th absence the worker receives a verbal warning, at the 10th and 12th
absence he receives a written warning; at the 14th absence the worker is
suspended for 3 days (Tr. 500).
176. Non-chargeable absences include jury duty, witness subpoena per
labor agreement, military leave, funeral leave, union business, vacations,
holidays, and absences due to industrial accident or injury (Tr. 501, R-6,
R-7).

Lund's complaint is that Nelson granted him an emergency medical
leave and then revoked it. The requesting of medical leave is not an
activity protected under the Act. Further, Anamax did not, in any event,
discriminate against Lund. Anamax merely advised him on April 24, 1981
that he had been charged with 13 absences and in the event there was one
more absence he would be given a three day suspension (P-26). An operator
may in his business judgment impose attendance requirements and sanctions
without being in violation of the Act.

276

Lund agrees he knows of no one else who was given leave for the same
reason and not charged for it. Lund's absence was excused. Anamax's
policy requires discipline at the 10th and 12th excused but charged
absence. Lund agreed that his 13th day of absence was the day he took his
wife to the hospital (Tr. 469). The only "discipline" was c~arging Lund
for the day he missed. No further suspension occurred. Anamax's activities were in accordance with its· attendance policy and, therefore, no
discrimination is shown.
XXI

ON MAY 1, 1981 LUND IS DISPATCHED BY LOGAN TO WORK AT
THE INTERSECTING CONVEYOR BELTS UNDER UNSAFE WORKING CONDITIONS 25/
Witnesses: Lund, Logan, Miller
178. Logan dispatched Lund to work on intersecting conveyor belts
known as W-1 and R-1. Their duties included cleaning muck out of the
shuttle (Tr. 279-281).
179. Lund and co-worker locked out the equipment in the lockup shack
(Tr. 280, Exhibit P-29).
180. After working for approximately two hours in the chute a beltrider (trouble shooter) asked Lund if he had locked out the shuttle (Tr,
281, 289, Exhibit P-26, P-30, P-31).
181. When Lund requested an additional lock, an electrician came and
installed a "tree" with a lock on it. Lund refused to get back in the
shuttle until the conveyor was locked out with a lock to which he had the
only key.
182. Lund.explained the situation to Logan who had Lund write out on
a piece of paper why he was refusing to work (Tr. 285).
183. Lund refused Logan's request to leave his lock and at that
juncture Logan told Lund to load up. Logan sent Lund to a different job
(Tr. 287).
184. Logan told Lund he was taking the issues to a safety committee
to see who was right (Tr. 287-288).
185. Approximately two to four weeks later a new Anamax policy
resulted in each welder being issued two locks to prevent this situation
reoccurring (Tr. 288, 711).
The credible evidence establishes that Lund was engaged in a protected
activity when he refused to work in the chute. His arguments to Logan were

25/

Paragraph 26 of the amended complaint.

277

correct. However, the evidence fails to show that Anamax took any
retaliatory action against him. The uncontroverted testimony by Logan
indicates that Lund was reassigned back to the weld shop after this
incident (Tr. 285, 673, 674).
Lund claims he was discriminated against because he was yelled and
hollered at and he was working under unsafe conditions that the supervisor
thought were safe without Lund being given a fair hearing on the dispute
(Tr. 287, 288, 473).
The evidence does not show retaliatory action by the company. The
facts here rebut any harassment of Lund that is subject to redress under
the Act.
The fact that Lund was working under an unsafe condition for approximately two hours was not discriminatory conduct for the reasons discussed
in paragraph I, supra.
XXII

LUND RECEIVED ATTENDANCE DISCIPLINE LETTER AND THREE DAY
SUSPENSION. HE CONTENDS THE SUSPENSION SHOULD NOT HAVE BEEN
ISSUED BECAUSE MANAGEMENT KNEW HE HAD BEEN INJURED ON THE JOB ~/
Witnesses:

Lund,

Johnson~

Pijanowski,

186. According to Anamax's policy an industrial accident is not
chargeable against attendance (Tr. 303, 506).
187. Anamax policy requires a worker to immediately report an injury
to his supervisor (Tr. 105, 793).
188. Lund claims he was injured on the job on May 12, 1981, when he
lifted a handrail over his head. Lund filed his report of the injury on
May 24, 1981 (Tr. 597, 796, Exhibits P-32, R-16).
189. Due ·to Workmen's Compensation, Anamax requires immediate
reporting of any accident (Tr. 793, 794).
190. On May 18, 1981 Lund received a three day disciplinary action
notice due to his attendance. He was suspended for three days because he
had been charged with 14-1/2 absences in the prior 12 months (Exhibit P-5).
191. Lund called in each day that he didn't work after the May 12th
incident. He told the guard he felt he couldn't work and he was going to
the doctor (Tr. 298, P-33).

26/

Paragraph 27 of the amended complaint.

278

Anamax may impose legitimate accident reporting requiremerrts. Lund's
evidence fails to establish that Nelson's actions were anything other than
the enforcement of the Anamax absentee policy, discussed in XX, supra.
In paragraph IX, supra, Lund orally reported an accident and filed a
written report the night of the incident (Facts, ,75). At the time of this
incident, in July 1980, Lund knew of Anamax's requirements concerning•
the filing of an accident report. In May 1981 he didn't file the report
until 12 days later. In addition to the late filing Lund's co-worker James
Johnson "didn't recall" that Lund ever claimed to have incurred any injury
in lifting the 25 pound handrail (Tr. 100). In short, I conclude that Lund
failed to prove that his back injury occurred on the job.
XX III
LUND IS THE SUBJECT OF VERBAL ABUSE BY SUPERVISOR LOGAN
AND LOGAN FURTHER DEFAMES LUND 1 S ABILITY AS A CRAFTSMAN 27 /
Witnesses:

Lund, Hall, Vidal, Logan

192. Twice on the same day, Vidal heard Logan call Lund "dung" (Tr.
307' 308).

193. On other occasions Logan said to Lund words to the effect that
"who down there [in welding] hates me that they 1 d send me you for a welder
(Tr. 110, 313-315).
194.

These statements upset Lund (Tr. 308).

195. Before June 1, 1981 this occurred less than ten but more than
five times (Tr. 314).
·Logan concedes he cal led Lund "dung" 28/ a dozen times over a year
but he indicated Lund had not objected. When Lund protested Logan
apologized and stated he wouldn't call him that again. Logan didn't recall
ever making any disparaging remarks concerning Lund's skill as a welder.
He considered him an "excellent",welder (Tr. 678 - 679).

27/

Paragraphs 28 and 29 of the amended complaint.

28/ Webster's new Collegiate Dictionary 1979 defines "dung" as follows: 1.
the excrement of an animal: MANURE 2. something repulsive.

279

The credibility issues are resolved in Lund Is favor as enumbered in
paragraphs 192 through 195. Logan confirms he used the "dung" term and
"doesn't recall" any disparaging remarks of Lund's ability. I find in
Lund's favor because of Logan's failing memory on this issue.
The statements by Logan are derogatory in nature but they do not rise
to the level of a threat of reprisal. In short, Lund is not protected by
the Act against such statements.

XXIV
A VANDAL DAMAGES LUND'S CAR AND HE MISSES WORK. ON
HIS RETURN HE IS QUESTIONED BY TWO ANAMAX FOREMEN
AND HE RECEIVES AN ATTENDANCE DISCIPLINE LETTER FOR
THE WORKDAY HE MISSED, :!!!._/
196, On June 13, 1981, while Lund's automobile was alongside his
trailer home in Tucson, Arizona~ someone placed a jumper cable across his
ignition wires and burned the wiring
his car (Tr. 316).
197.

Lund didn 1 t know who vandalized his car (Tr. 477-478).

198.

Lund 1 s repairs cost were $524.53 (Tr. 319).

Lund received an attendance disc
appear at work on June 13 9 1981 (Tr. 320).
200.

ine letter for his failure to

Lund was apparently not docked a day without pay (Tr. 323).

A credibility issue arises whether the facts are as outlined above or
whether Lund burned up the car when he was jumping the battery as he
allegedly told the foreman (Tr. 713). I find this issue in Lund's favor
since he offered his insurance card to the foreman (Tr. 713). Further, the
hearsay statement of the automobile service manager is to the effect that
someone had been tampering under the automobile's dash (Tr. 320).
A resolution of the credibility issue here does not tesolve the
incident since the evidence utterly fails to connect Anamax with the
vandalism of Lund's automobile. Accordingly, any claim of discrimination
in connection with that allegation should be dismissed.
Lund also contends he was discriminated against because of the
tremendous amount of attention paid to the incident by his supervisors (Tr.
477-478). However, Lund offers no supporting detail other than the fact
that he was questioned by Logan about his absence (Tr. 479, 480). It is
uncontroverted that Logan gave Lund an "excused absence". Any inquiry was
at best enforcement of rules concerning absences. In short, Lund did not
establish a claim of discrimination by merely showing that Dayton Miller

29/

Paragraphs 30 and 31 of the amended petition.

280

questioned him twice and Ypulong with Miller (both foremen) questioned him
third time about the car burning incident (Tr. 322-324). I find Logan's
testimony credible which is to the effect that the next day when Lund came
to work he questioned Lund as he would any other employee (Tr. 712).

a

The final portion of the claim of discrimination in this incident
deals with the attendance discipline letter. I find a failure of proof in
this regard. At one point Lund stated he received a discipline letter for
failing to appear on June 13 (Tr. 320). However, as the Judge further
developed Lund's testimony he stated he wasn't issued such a letter, but he
was assessed a day's absence (Tr. 321). Lund's direct testimony is totally
conflicting and for this reason his proof
ls. Even if Lund had received
an attendance letter it would have been in furtherance of the Anamax
attendance policy, discussed in paragraph XX, supra, If a worker misses a
day an operator may legitimately assess him for the day he missed,

x.xv
LUND ALLEGES A THREAT BY DAYTON MILLER IN THAT HE
HAD TO BE SUBPOENAED TO fo~PEAR FOR A PRE-TRIAL HEARING
IN THE INSTANT CASE OR HIS ABSENCE WOULD BE COUNTED AGAINST
HIS ATTENDANCE RECORD, }!l_/
Witnesses:

Lund, Pijanowski

201. On July 2, 1981 Lund asked Dayton Miller that he be excused from
work to appear at a prehearing conference in the instant case on July 14s
1981 (Tr. 324, 325).
202. Nelson told Lund he wouldn't be given an excused absence unless
he was subpoenaed (Tr. 325, 480-481).
203. Whether an absence is excused or unexcused
a mattf'r within
the discretion of the hourly worker's supervisor (Tr. 326).
204. When the prehearing conference took place Lund was working the
graveyard shift which did not conflict with the prehearing schedule.
Accordingly, his attendance record at Anamax was not adversely affected
(Tr. 326).
The evidence 1s uncontroverted that during the 1977 labor negotiations
Anamax and the union discussed and agreed that an appearance pursuant to
subpoena at a hearing in a court of law for a municipality, a county, a
state, or a federal court would not be a chargeable absence. The
negotiators also discussed administrative hearings. MSHA was not mentioned
but NLRB, EEOC, Workman's Compensation, state unemployment, etc., were a
part of the union demand. The demand was not met and the net result ts
that appearances before an administrative hearing are a chargeable absence
(Tr. 505-507).
30/

Paragraph 32 of the amended petition.

281

The Act prohibits an operator .from discriminating against a miner
because he "has testified or is about to testify in any such proceedings
under the Act" 30 U.S.C. 815(c)(l). Anamax's policy is inherently
discriminatory against a miner whQ must appear in an MSHA proceeding during
a miner's day shift work hours because such an appearance has an adverse
affect on his employment record, namely an unexcused absence is charged.
This policy then could have a chilling effect·on a miner's willingness to
institute a proceeding under the Act. Lund's appearance before the Judge
was protected activity. However, the pre-hearing conference did not take
place during Lund's work shift and consequently, he was not required to
take time off .from his job in order to attend the conference. Anamax' s
policy was not enforced against Lund, and, therefore, notwithstanding the
validity of the policy under the Act, Lund suffered no discrimination
because of it.
XXVI
AN ANAMAX SAFETY OFFICIAL REFUSES LUND'S REQUEST
TO ISSUE A SAFETY LETTER TO SUPERVISOR LOGAN, 1.1._/
Witnesses:. Lund, Logan, Caylor, Johnson
205. On July 5, 1981 Lund's supervisor Hassell Logan climbed a
structure and welded a ladder in place as he stood on a cross member of the
structure (~r. 327, 680).
206. Lund's complaint to the safety department was that a supervisor
had climbed the tower without tying off with a safety belt and lanyard.
The climbing was done over Lund's head (Tr. 327, 593, 690).
207. The day following this incident Lund contacted John Caylor in the
Anamax safety department. Lund requested that a safety lette~ be issued to
Logan (Tr. 330).
208. Caylor told Lund, and he reiterated at trial, that Anamax has no
policy authorizing an hourly employee to issue a safety letter to a
supervisor (Tr. 330, 592, 593).
209. Caylor took Lund's safety complaint and investigated the
incident (Tr. 593).
210. Caylor found that Logan was 12 feet off the ground (outside
measuresment) and unsecured while he welded the ladder. On the inside of
the structure Logan was four to five feet off of the ground.

31/

Paragraph 33 of the amended petition.

282

211. A verbal warning was issued to Logan by the safety department
for this incident (Tr. 690).
It is not necessary to decide in this case whether Logan violated the
MSHA standard promulgated at 30 C.F.R. 55.15-5. The standard provides:
55.15-5 MandatorJ. Safety belts and lines
shaU be worn when men work whe·re there is
danger of falling; a second person shall
tend the lifeline when bins, tanks, or other
dangerous areas are entered.
The issue is whether Anamax discriminated against Lund. I conclude no
such discrimination occurred. Lund's theory is that the company policy (or
lack of it) denies him recourse while being required to work under a
supervisor in these circumstances. I reject Lund's theory. If an hourly
employee had authority to issue a safety letter the results in a mine could
well be chaotic. Under the Act, Lund had a right to complain about the
unsafe act to Logan. He didn't do so at the time (Tr. 683). Further~ he'
had the right to refuse to work under the circumstances. In addition~ he
had the right to complain to the safety department or to a joint safety and
health committee,
The issuance of a safety letter is an administrative matter resting in
the management discretion of Anamax. On its face the Anamax safety policy
appears viable. The uncontroverted evidence shows that Anamax has some
1500 to 1600 employees (Tr. 603). The safety department has three safety
inspectors in the field and three industrial hygenists (Tr. 602). The
safety department receives about 100 to 150 complaints over a 12 month
period (Tr. 601-602). A safety and health committee must resolve
complaints about once a week (Tr. 601).
A careful study of the record might lead one to the conclusion that
Lund did not want to issue a safety letter to Logan but merely wanted to
cause the safety department to issue such a letter and advise Lund of the
accomplished fact (Tr. 484, 485). I conclude, under the circumstances
here, that in·either event, a company policy that does not require the
issuance of safety letters to supervisory personnel with hourly employees
being advised of that fact does not form the basis of a discriminatory
complaint by an hourly worker. Lund's safety complaint was protected
activity, but no adverse action was taken against him in retaliation for
such protected activity.
XXVII

LOGAN TAKES LUND'S OPERATOR REPORT 32/
Witnesses:

Lund, Logan

205. An operator's report is filled out when a worker operates a
piece of equipment such as truck (Tr. 336-337).
32/

Paragraph 34 of the amended petition

283

206. The report should be in the operator's possession at all times
when he is around the equipment (Tr. 337).
207. Logan took Lund's report because he wanted the list.of materials
Lund had put on the back of the form (Tr. 685-686).
(Tr.

208. The materials were to be for the workers on the following shift
685-686).

209. Logan overrode Lund's protest and told him he'd see that the
report got into the proper hands (Ti. 686-687).
A minor credibility issue arises here. Lund "didn't recall" whether
there was anything written on the report but Logan says it had a list of
materials for the subsequent shift. I have resolved this credibility
determination in favor of Logan due to Lund's failure to recall.
However, neither version establishes any retalitory conduct by Logan. Lund
felt he had to have the report or he'd "be in trouble" (Tr. 340-341).
These events occurred the day after Logan climbed the tower, (in XXVI)s
but no retaliatory conduct is shown.
X~:VIII

LUND ASSERTS HE IS SENT HOME WHEN HE COMPLAINS ABOUT
FUME INHALATION. HE IS ALSO CHARGED FOR ONE DAY ABSENTEEISM
AND NOT PAID FOR THE REST OF THE DAY, HE CLAIMS THIS IS
CONTRARY TO ANAMAX POLICY. ]2/
Witnesses:

Lund, Miller, Ypulong, Nelson, Pijanowski

210. On July 6, 1981 Lund inhaled fumes while sodering with silver
(Tr. 341, 486).
211. The following morning he experienced profuse sweating and
vomiting (Tr. 341).

33/

Paragraph 35 of the amended complaint.

284

212.

The next day he experienced dizziness while enroute to work (Tr.

342).
213. Lund reported for work at 3 p .m. and be fore 4 p .m. he reported
to Dayton Miller that he was sick and dizzy (Tr. 343).
214. Miller told Lund he was responsible for him, and they didn't
want him driving a truck if he felt that way (Tr. 343, 717).
215. He was sent home on July 7 at approximately 4 p.m., after one
hour's work (Tr. 343).
216. Lund wasn't paid for the seven hours he didn't work on July 7,
and he was assessed a full day's absence (Tr. 345).
217. When a worker is sent home because of an industrial accident it
is Anamax 1 s policy to pay the worker's wages for the balance of that day
(Tr. 505).
218. Subsequent days, after an injury, are covered under workman 1 s
compensation (Tr. 505).
219. If a worker is injured and does not leave work that day but
returns the following day and then goes home because of the injury he
receives no pay for the second day other than for hours actual
worked on
the second day (Tr. 506).
The uncontroverted evidence indicates there is a reasonable basis for
the Anamax wage policy on the date of an injury and on subsequent days.
The facts in this incident fail to show any discriminatory conduct against
Lund. Further, Lund offered no evidence to establish that he was treated
differently than any other worker under similar circumstances.
XXIX
LUND ASSERTS MILLER THREATENED HIM ABOUT HIS
ATTENDANCE AT THE PRE-TRIAL HEARING IN THE INSTANT
CASE ON JULY 13, 1981 AND THAT IT WOULD RESULT IN
ANOTHER THREE DAY SUSPENSION WITHOUT PAY. l!:!._/
Witnesses:

Lund, Miller

220. Lund was told that if he took off from the graveyard shift to
attend the pre-hearing in the instant case he would be assessed for one day
for being absent (Tr. 347).
221. Lund was warned that he could incur an additional three day
suspension (Tr. 348).

34/

Paragraph 36 of the amended petition.

285

222. Miller told Lund he'd be excused for the prehearing but wouldn't
be paid (Tr. 713~714).
223. Lund worked the graveyard shift and then came to the prehearing
(Facts, , 204 XXV, supra.
A credibility issue arises here. Lund says that with each
conversation he felt "intimidated and harassed" (Tr. 348). However,
Miller says he didn't threaten Lund, but when Lund brought in the subpoena
he checked his attendance record and he stated he had 13-1/2 days and if he
missed one more day he would get three days off without pay (Tr. 714).
Lund may have felt intimidated and harassed but no collateral facts
support his conclusion. A foreman may advise a worker of his attendance
record without that forming the basis of a discrimination complaint, The
uncontroverted evidence from Miller is that he treated Lund the same as any
worker (Tr. 714). As previously noted (XXV) the Anamax policy is
inherently discriminatory. However, Lund was not adversely affected by
that policy because he was working the graveyard shift and at the
completion of that shift he attended the pre-hearing conference. To
sustain Lund's position here would mean that an operator would be required
to give a worker time off to prepare his case. Neither the Act nor the
legislative history support such a proposition.
TRIAL SANCTIONS
During the trial Lund asserted that Anamax failed to comply with the
Corrnnission order authorizing him to take photographs. In addition, Lund
claimed that witnesses had been told not to appear at the hearing (Tr.
117). Lund's complaints were treated in the context of a request by him
for the Judge to impose sanctions on Anamax.
I conclude that Anamax did not interfere with the.Commission's order,
and I decline to impose sanctions. Lund offered in evidence and the Judge
received 25 photographs. Lund alleges that Anamax interfered and refused
his right to take photographs. (Tr. 358). Particularly, Lund says he did
not have an opportunity to photograph the weld truck involved in V; in
addition, he wanted to photograph the conveyors in XXI while the conveyors
were stopped. Finally, he wante.d a posed picture of a man cutting .and.
welding.
The photographs taken.by Lund fairly illustrate his testimony: a
different weld truck was photographed as well as different conveyor belts,
Lund did not state and I am unable to find why a posed picture of a worker
welding was necessary in his proof. I conclude that the Connnission
discovery order did not require Anamax either to shut down its production
or to furnish the exact vehicle for photographs.
During the trial Lund further stated that witnesses had been told not
to appear at the hearing. Ultimately the facts on this allegation boil
down to one witness, Rudy Ypulong, who was allegedly told not to appear.

286

This witness was an Anamax supervisor._ When Lund identified the witness
who had been aUegedly interfered with counsel for Anamax indicated Ypulong
would be called by respondent. No evidence supports Lund's allegations
that Anamax told any witnesses not to appear at the hearing.
Finding no basis for Lund 1 s .allegations, I refuse to impose any
sanctions against Anamax.
POST TRIAL MOTIONS
The tr.ial of the above case concluded on August 27, 1981 in Tucson,
Arizona.
On September 21, 1981 Lund filed a letter with the Judge. In its
relevant portions he inquired as to penalties for perjury before the
Commission. He claimed that a supervisor had lied on the stand and was
considering a recant. Further, Lund inquired as to how he should treat
false documentation before the Judge concerning the Anamax safety rule book
and the "real" burn permit. Further$ Lund asserted he had been
discharged by Anamax.
Anamax objected to Lund's communication, moved to strike it, and
further moved for an order to prohibit Lund from any further attempts to
supplement or confuse the record.
On September 29~ 1981 an order was entered treating Lund's letter as E
motion to reopen the record. In the order the Judge indicated he would
re'open the record if there was a material defect in the trial proceedings.
The order further stated that Lund's motion lacked a factual basis to
determine its validity and Lund was granted additional time to supplement
his motion.
When he supplemented his motion Lund offered seven items.
two items are a burn permit and an Anamax safety book.

The initial·

The burn permit was involved in factual discussion in XII (five
gallons of solvent under sideframes, half filled). The Judge understands
this evidence and the receipt of what Lund calls the "real 11 burn permit
does not affect the result in XII, supra. A burn permit as a cutting/
welding permit that addresses fire hazards.
Lund asserts the Anamax safety booklet received in evidence (R-2)
contains a different lockout procedure that the one in effect relating to
XIX (Lund almost loses hand) and XXI (intersecting belts). Facially there
does appear to be a minimal difference in the revised safety book
publications but in any event the results in XIX and XXI would not be
affected by the new evidence, even if true.
Items 3, 4, and S are MSHA citations and they are offered by Lund to
counter the testimony of Logan and Caylor. Item 3 contains two MSHA
citations relating to XIX supra. (Lund almost lost hand). The issuance of
MSHA citation would not affect the result in XIX. Item 4 also relates to

287

inadequate lockout procedures in XXI (intersecting belts).
citation would not affect the results in XXI.

An MSHA

Item 5 relates to XXVI, supra. (Anamax refuses to issue a safety
letter to Logan upon Lund's request). The MSHA citation would only support
the facts as already found in XXVI. Further, such evidence would be
repetitious.
Items 6 and 7 relate to Lund's termination by Anamax. This event
occurred after the testimony was concluded in this case. Since it was not
an issue raised in the trial I refust to consider it or to reopen the
record to receive evidence thereon.
On October 27, 1981 the Solicitor for the Department of Labor under
the Freedom of Information Act requested a copy of the transcript in this
case "in order to complete his invest
ion of a subsequent complaint of
discrimination filed by Mr. Lund."
Lund's supplemental motion to reopen the record did not identi
the
witness who perjured himself nor were further facts mentioned to support:
Lund 1 s allegations of perjury.
For the reasons stated I refuse to reopen the record on the basis of
Lund's supplemental motion.

CONTENTIONS IN POST TRIAL BRIEF
Lund's post trial brief raises various issues.
as they appear in his brief.

They will be treated

Lund's initial contentions are that he was engaged in a protected
activity, and he was the object of discrimination by the supervisors of
Anamax. I agree that many of Lund's activities were protected by the Act
but for the reasons indicated I find no retaliatory conduct by Anamax
against Lund. Since I did not find any discrimination I reject Lund's
position that he sustained financial loss.
Lund's further contention involves the credibility of the testimony of
various witnesses.
Lund attacks the testimony of Ypulong concerning his qualifications to
discuss the construction of the handrail involved in XXII. The ultimate
construction of the handrail has virtually nothing to do with the
determination and conclusions in that paragraph. Lund also complains about
Pijanowski's testimony concerning numerous "unwritten" Anamax policies. I
find such "unwritten" policies do not destroy the credibility of the Anarnax
case even when such "unwritten" policies are asserted as a defense. The
evidence on these issues is essentially uncontroverted. Many of the Anamax
policies are written.
Lund's attack on the burn permit was discussed, supra, in his motion
to reopen the record and the same ruling applies here.

288

I agree with Lund when he states in his brief that the burden of
responsibility for safety rests with the supervisors in each respective
department in which he works. The Act protects him while engaged in a
protected activity and further, as outlined in Robinette, supra, of the Act
protects his refusal to work.
~~--~Lund states that the supervisors had a motive for their discriminatory
conduct since Johnson played the taped testimony he gave to the safety
department. As previously stated I have found no retaliatory conduct
against Lund by Anamax's supervisors.
Lund also contends management treated him in a degrading and
humiliat
manner. Further, he never received this kind of treatment
until he made his original safety complaint or became involved with MSHA.
This contention has already been reviewed. In summary I have reached
contrary conclusions. Lund's claims
1 for the reasons previously
stated.
Lund's further argument relates to ~ XXVI (safety letter refused for
Logan). He claims Logan's reprimand was minimal and private but his
discipline was public. Lund's facts do not support his allegations. The
only discipline
ever received for safety was the letter outlined in ~
IX supra,
Lund 1 s further argument addresses the events of the telephone calls at
the hospital. These contentions have already been reviewed in ~i xv~ supra.
The same ruling pertains.
Lund attacks Logan's testimony regarding the lockout procedure ('ii XXI,
supra), (intersecting belts). As previously indicated no conflict exists
on the facts. The only conflict is whether Lund or Logan was correct in
the lockout procedures. Subsequent procedural changes by Anamax indicate
Lund was correct. This does not indicate that Logan lie<l.
A further argument relates to Lund's asserted intimidation about his
attendance at the pretrial hearing. These issues were discussed contrary
to Lund's view in • XXV, and XXIX, supra.
The further argument is that the personnel files Lund requested for
his case were incomplete, incorrect, and illegible. Lund did not prove
the first two allegations and the Judge gave him ample opportunity to
discuss with Anamax's counsel and to secure copies of any documents that he
thought were illegible. The two files sat on the court bench throughout
most of the hearing.
Lund's additional argument centers on the photographs.
discussed under "Trial Sanctions."

This issue was

A further argument focuses on the apparent reprinting of the Anamax
safety booklet. This was discussed under the "Motion to reopen the
record."

289

Lund also contends documentation he received in the case was not
timely surrendered, as ordered at the prehearing but An~max stalled until
an order issued, I reject this argument. Lund does not identify the
"documentation" nor does he claim to.be prejudiced by any delay if there
was any.
The further proposition Lund urges is that Anamax did not surrender
the cassette tapes. This was discussed and decided in , XVIII, supra. In
view of my prior discussion I conclude that the order to produce the
cassette was unprovidently issued and it is vacated. Lund was able to
testify at length as to the nature, scope, and context of his statements to
the Anamax safety department. No issue of fact arose in the case involving
the tapes. Lund therefore suffered no prejudice because of the
unavailability of the tapes.
Lund further argues that Anamax' s ·counsel, Steven Weatherspoon$ was a
major obstacle for him to deal with in the presentation of his case. He
complains of Weatherspoon's defiance of Cormnission orders, profane
language$ conduct he considers unethical, refusal to surrender evidence,
and false documentation, He also moves for disciplinary proceedings
against Anamax 1 s counsel.
Lund's arguments involving Anamax 9 s counsel have already been reviewed
in connection with the photographs at the mine, or in connection with his
motion to reopen the record, While the Commission may discipline
practitioners before it, 30 C.F.R, § 2700.80, there is no factual bas
to
support Lund's contentions. In all proceedings herein Steven Weatherspoon
conducted himself in accordance with the highest standards of ethical
conduct required of practitioners before this Commission. However, in view
of Lund's allegations the Judge reviewed his depositions on file with the
Commission. The depositions were taken on August 14, 1981 and August 21,
1981. Nothing in the depositions support Lund's contentions. For these
reasons I deny Lund's motion to discipline Counsel for Anamax.
SUMMARY
The record supports Lund's position that he had a reasonable belief
that various safety hazards existed at the Anamax mine (particularly in
paragraphs I, II, V, XII, XIII, XVI, XIX, XXI, XXVI). Furtherj the
Congress intended that miners would play an active part in the enforcement
of the Act. However, even in those situations "'11ere a safety hazard
existed the record fails to establish retaliation against Lund because of
his concerns about safety. Without retaliatory conduct on the part of
Anamax in response to Lund's protected activity no discrimination can occur
under the Act.
Based on the foregoing findings of fact and conclusions of law I
hereby enter the following:

290

ORDER
1.

The amended complaint of discrimination filed herein is dismissed.

2.

The motion to reopen the record is denied.

3. The motion to discipline Steven Weatherspoon, counsel for
respondent, is denied.

Law Judge
Distribution:
Donald Lund
4545 South Mission, #159
Tucson, Arizona 85714
Steven Weatherspoon, Esq.
Chandler, Tullar, Udall & Redhair
Arizona Bank Plaza, Suite 1700
33 N. Stone Avenue
Tucson, Arizona 85701

291

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of. CLYDE SMITH, ·JR. , :
JAMES R. CLEVENGER, MONROE
MULLINS, DAVID MAY, JERRY LEE
SMITH, JOHN R. TELFER, JR.,
JAMES THACKER, H. K. TILLEY,
JR., AND THOMAS W. WALKER,
Complainants:

FEB 5 1982

Complaint of Discharge, Discrimination,
or Interference
Docket No. KENT 81-17-D
No. 1 Mine

v.
MULLIN CREEK COAL COMPANY, INC.,:
Respondent
DECISION
Appearances:

Darryl A. Stewart~ Esq., Office of the Solicitor, U.S. Department of Labor, for Complainants;
Charles E. Lowe, Esq., Lowe & Lowe, Pikeville, Kentucky, for
Respondent.

Before:

Administrative Law Judge Steffey

Two hearing sessions were held in the above-entitled proceeding. The
first hearing was held on March .6 and 7, 1981, in Pikeville, Kentucky, and
pertained only to the merits of complainants' contention that they had been
discharged in violation of section 105(c)(l), 30 U.S.C. § 815(c)(l), of the
Federal Mine Safety and Health Act of 1977. A bench decision was mailed to
the parties on March 17, 1981. The bench decision found that all nine complainants had been discharged in violation of section 105(c)(l) of the Act
and paragraph (B) of the bench decision provided for reinstatement of the
four miners who had requested reinstatement and paragraph (C) of the bench
decision ordered respondent to make payments of back pay to all nine complainants. Paragraph (G) of the order accompanying the bench decision provided
for an additional hearing for the purpose of determining the facts required
to compute back pay. The second phase of the hearing in this proceeding was
held on November 17, 1981, in Prestonsburg, Kentucky, and a 17-page order
was issued on January 12, 1982, setting forth the methodology to be used in
computing back pay.
Counsel for the parties filed on February 1, 1982, two letters showing
that counsel for the parties agree to the correctness of the calculations for
back pay computed by complainants' counsel. The parties have not raised any
issues with respect to the methodology I used in directing the computation of
back pay. Therefore, I find that the calculations submitted by complainants'
counsel in his letter of January 22, 1982, should be used as the basis for
ordering payment of back pay and the letters of counsel showing agreement as
to the calculations are attached as an appendix to this decision,

292

WHEREFORE, it is ordered:
(A) The 16-page bench decision mailed to the parties on March 17, 1981,
is confirmed and hereby issued as the final decision on the merits of the
discrimination charges alleged in this proceeding.
(B) The final decision in this proceeding is comprised of: (1) the
16-page bench decision confirmed in paragraph (A) above, (2) the two-page
Order Granting Request for Extension of Time, (3) the 16-page Order Providing
for Computation of Back Pay, and (4) the six-page Appendix made up of letters
from the parties agreeing to the computations of back pay.
(C) Paragraph (B) of the bench decision is confirmed, to wit, the Complaint of Discharge, Discrimination, or Interference filed in this proceeding
on October 24, 1980, is granted for the reasons given in the bench decision
confirmed in paragraph (A) above.
(D) Paragraph (B) of the bench decision is rescinded as moot because
respondent has already reinstated all of the complainants who wished to be
reinstated.
(E) Paragraph (C) of the bench decision is rescinded as moot because
back pay has been computed and payment is awarded in paragraph (J) below.

Paragraph (D) of the bench decision is rescinded as moot because
respondent has already provided the basic data required for computing back pay"
(F)

Paragraph (E) of the bench decision is rescinded as moot because
the parties have already participated in the gathering of the necessary data
for computing back pay.
(G)

(H) Paragraph (F) of the bench decision is confirmed, to wit, the
employment records of all nine cowplainants shall be completely expunged of
all references to their unlawful discharge and matters relating thereto.
(I) Paragraph (G) of the bench decision is rescinded as moot because
counsel for the parties have already requested a reconvening of the hearing
for the purpose of determining back-pay data, the hearing has already been
held, and the amount of back pay due to each complainant has been computed.
(J) Respondent, within 30 days from the date of this decision, shall pay
each complainant the amount set forth after his name in the tabulation below 9
together with interest at 12 percent per annum.

(1)
(2)
(3)

(4)
(5)
(6)

Thomas V. Walker .. o • • • • • • • • • • • • • • °' • o • • • • $16,226.95
John R. Telfer, Jr. ••••••••••••e•o•••••• 15,979.90
Clyde Smith, Jr. •••••••o•••••••••••••o•• 10,478.15
26,410.30
James R. Clevenger••••••••••••••••&•••••
Jerry Lee Smith ........................ . 17,082.30
David May •••••. c. • • • • • • • • • o • • • • • • • • • • • • • • 13, 241. 65

293

(7)
{8)
{9)

H. K. Tilley, Jr. . .................... .
Monroe Mullins ...•.....................

James Thacker

19,224.95
4,484.70
1,830.00

~e-~z;g.

Richard C. Steffey~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 {Certified Mail)
Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc.D
Lowe & Lowe, P.O. Box 69, Pikeville, KY 41501 (Certified Mail)
MSHA, Special Invest~gations, U.S. Department of Labor 9 4015 Wilson
Boulevard, Arlington, VA 22203
Assistant Solicitor, U.S. Department of Labor 9 4015 Wilson BoulevardD
Arlington~ VA 22203

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

The 16-page bench decision reproduced below was
mailed to the parties on March 17~ 1981, and is confirmed
by paragraph (A) above as the final decision on the

merits of the discrimination charges raised in this
proceeding"

This hearing involves a Complaint of Discharge, Discrimination, or Interference filed on October 24, 1980, in Docket No. KENT 81-17-D by the Secretary
of Labor and the Mine Safety and Health Administration on behalf of nine coal
miners, namely, Clyde Jr. Smith, James R. Clevenger, Monroe Mullins, David May,
Jerry Lee Smith, John R. Telfer, Jr., James Thacker, H.K. Tilley Jr., and
Thomas v. Walker, pursuant to section 105(c)(2), 30 U.S.C. § 815(c)(2), of the
Federal Mine Safety and Health Act of 1977, alleging that complainants were
illegally discharged by Mullin Creek Coal Company, Inc., on or about April 10,
1980, because they had withdrawn from'Mullin Creek's No. 1 Mine and had refused
to produce coal from an area of the mine having allegedly unsafe and hazardous
roof condi t.ions.
The issues raised by the Complaint are whether respondent violated section lOS(c)(l) of the Act so as to entitle the complainants to the relief they
are seeking under section 105(c)(2) of the Act. My decision will be based on
the findings of fact which are set forth below:

295

Findings of Fact
1. The No. 1 Mine of Mullin Creek Coal Company, Inc., has two working
sections. On April 10, 1980, when most of the events resulting in the filing
of the Complaint in this proceeding occurred, a continuous-mining machine was
being used in one section and conventional mining procedures were being used
in the other section. The men using the conventional equipment were engaged
in secondary mining or the extracting of pillars. Two production shifts per
day were used in the pillar-recovery section. Respondent has stipulated that
it is subject to the provisions of the Act and to the regulations promulgated
thereunder.
2o Jerry Lee Smith was the operator of the roof-bolting machine on the
3-p.m.-to-11-p.m. shift and had worked at the No. 1 Mine for about 1 year
prior to April 10, 1980. He left the mine about 6 p.m. on April 10 because
he claimed that hazardous conditions made it unsafe for him to work. He
described the unsafe conditions as an absence of the proper number 'of breaker
posts, excessively wide bolting places, and lack of timbers for use as line
posts or roadway posts. He claimed that such wide cuts of coal had been taken
from the No. 2 and No. 3 pillars, that he had to install 32 bolts on 4-foot
centers instead of the 15 bolts which would have been required if exce
wide cuts had not been taken. Smith also refused to install bolts in the
No. 7 pillar after the coal was loaded because the roof just outby that pillar
had dropped down about 2 or 3 inches. Smith said that it was unsafe to pass
under that portion of bad roof in order to bolt the roof in the fresh cut
which had been loaded from the No. 7 pillar. Smith also claimed that eight
breaker posts were required to be set inby the end of
pillar but in
one entry in the entire line of pillars had breaker posts been set, and even
for that single entry, only six of the eight required posts had been installed.
Also, Smith said that an adequate amount of air was not reaching the working
face because of the complete absence of brattice curtains. Smith asks that
he be reinstated to his former position.

3. Monroe Mullins was the operator of the cutting machine in the pillarrecovery section on the 3-to-11-p.m. shift on April 10, 1980. He had worked
at the No. 1 Mine about 4 months prior to April 10. Mullins left the mine
about 6 p.m. on April 10 because he believed it was unsafe to work in the
mine. Mullins claimed that six breaker posts had been installed in only one
entry out of seven entries, and that in the single entry where breaker posts
had been set, only six had been set of the eight which were required. Mullins
asked the section foreman for additional timbers, but the section foreman told
him to run coal and no timbers were provided. Mullins also stated that proper
ventilation was lacking because no brattice curtains at all had been installed.
All seven pillars had been completely cut from one side to the other without
leaving wings on either side of the pillars. Mullins asks that he be reinstated to his former position as operator of the roof-bolting machine.
4. Thomas v. Walker now works for the A and S Coal Company and does not
ask to be reinstated to his former position at Mullin Creek's mine. On
April 10, 1980, Walker was the "shot firer 11 ·or the person who filled holes

296

with explosives and detonated them. Walker left the mine on April 10 at about
6 p.m. because he considered the mine to be unsafe. The conditions which he
described were that the entire ends of all seven pillars had been drilled and
undercut. No timbers had been installed by the previous day shift, but timbers
were brought in and set for him to shoot the coal down in the No. 7 pillar.
Walker had difficulty in shooting the other pillars because of their having
been drilled and undercut all the way across the pillars. The undercutting
had weakened the coal to be shot to such an extent, that the coal was settling
down to the floor of the mine and causing the holes which had been drilled for
insertion of explosives to be crushed and obliterated. Despite that problem,
Walker was able to shoot coal in the No. 6 pillar; he shot only half of the
No. 5 pillar; he shot all of the No. 4 pillar and half of No. 3. The coal had
fallen so badly in the No. 1 and No. 2 pillars, that he was unable to shoot
any part of them. The hazard which upset Walker the most was that the roof was
tending to override the working section and all coal fell so far into the area
where he was working that his powder and detonators were covered by falling
coal and it was necessary for him to dig them out of the coal so that he could
finish shooting the pillars where holes were still visibleo Walker was also
concerned about being asked to set timbers beside the loading machine while
it was still in operationo Walker additionally resented the fact that the
section foreman would not stop the loading machine long enough for the miners
to determine from sound whether the roof and timbers were making noises indicating an imminent roof fall. Walker was also concerned about the poor
ventilation that existed as a result of the complete absence of brattice
curtains on the sectiono
5. Ho Ko Tilley was working at the Noo l Mine on April 10, 1980c P£ is
unemployed at the present time and would like to be reinstated. On April 9,
Tilley had worked as an operator of a ram car, but when he went into the mine
on April 10, the mine foreman told him that his job was being changed from
that of operator of a ram car to that of helper for the operator of the roofbolting machine. He left the mine on April 10 at or about 6 p.m. because he
feared for his safety. 1he hazards he described were that all pillars had
been cut from one side to the other without leaving wings on each side. He
also was concerned about the c.omplete lack of any brattice curtains on the
section. Tilley was upset about having been transferred suddenly to the
position of helper for the operator of the roof-bolting machine without
having received any prior training to do that kind of work.
6. James Thacker was an operator of a ram car on April 10, 1980. He is
now working for Preece Coal Company and does not want to be reinstated to his
former position. Thacker left the mine on April 10 after working only a few
hours. The hazards he was upset and nervous about consisted of cracked roof 9
availability of only one or two timbers, and failure of ventilation. He saw
no brattice curtains at all on the section. Thacker said that failure to set
timbers prevents the miners from having a means of being warned by the cracking of timbers if the roof should begin to fall prematurely or suddenly.
7. Clyde Smith was working at Mullin Creek's mine on April 10, 1980. He
is now working for the McGinnes Coal Company and does not want to be reinstated. When Smith came to work at 3 p.m. on April 10, 1980, he was told that

his job had been changed from that of operator of the coal drill to that of a
general laborer. Smith went to the face area and spent the first part of the
shift installing six timbers between the No. 2 pillar and the No. 3 pillar.
Two other miners helped him set those six timbers which had to be cut with a
dull saw. Smith realized that no timbers were available to set in other
places where they were needed and requested the section foreman to get them.
David May, one of the men helping Smith set timbers, stated that he would see
the section foreman about obtaining additional timbers. Smith was concerned
about lack of ventilation which resulted from a complete absence of brattice
curtains. Smith asked the section foreman to get additional pillars and the
section foreman said he would worry about availability of timbers and refused
to stop production until timbers could be set. Smith considered conditions
in the mine to be so bad that he became upset and nervous and left the mine
after working only a few hours.
8. David May is now working for Dot Coal Company. He does not want to
be reinstated to his former position. May was working at Mullin Creek's No. l
Mine on April 10, 1980, as a beltman and general laborer. He went into the
mine about 3 p.m. and saw several unsafe conditions~ including cracked roof
pillars being cut all the way across the ends, and poor ventilation because
of the complete lack of brattice curtains. May asked the section foreman for
additional timbers and the section foreman promised to have some brought into
the mine. May waited at the power center for the timbers to be brought in~
but they did not arrive before the mine foreman came into the mine and called
all men together for a talk which was highly critical of their working habitso
May became upset after the foreman~s speech and left the mine a short time
afterward, believing that conditions in the mine were too unsafe for him to
continue working there.
9. John R. Telfer, Jr., now works for Wolf Creek Collieries and does not
want to be reinstated to his former position at Mullin Creek's mine. Telfer
was working on the 3-to-11-p.m. shift on April 10, 1980. He had been a helper
for the operator of the roof-bolting machine, but when he entered the mine to
work on April 10, he was given the job of being an operator of a ram car. He
believed conditions to be unsafe in the mine because the pillars had been cut
all the way across the ends and there was a complete lack of brattice curtains.
There were not enough timbers on the section and Telfer asked the section
foreman to get some timbers, but the section foreman declined to stop production to install timbers and told Telfer to haul coal. Telfer left about 6 p.m.
after deciding that conditions were too hazardous for him to continue working
on the section.
10. James R. Clevenger was working at Mullin Creek's mine on April 10,
1980, as a repairman. He is presently unemployed and would like to be reinstated to his former position. He left the mine on April 10 about 6 p.m.
after deciding that conditions were too hazardous for him to continue working. The conditions he described were that the pillars had been cut all the
way across, that complete lack of any brattice curtains failed to provide
proper ventilation, and that no roadway timbers had been set. He repaired a
cutting machine and a tractor for a ram car ·before he stopped working on
April 10, 1980.

298

11. All of the nine complainants named in the preceding paragraphs
stated that when they were leaving the mine property on April 10, the mine
foreman saw them on the surface of the mine and stated, as they passed the
mine office, that he would interpret their leaving before the shift had
expired as a voluntary resignation or act of quitting. All of the complainants stated that they disagreed with the mine foreman's position and some of
them told the mine foreman that they were not quitting and would report to
work the next day.
12. When complainants returned to work on Friday, April 11, 1980, the
day after they had declined to work in unsafe conditions, they first went by
the office to pick up their paychecks. The checks were accompanied by nquit"
slips which the men refused to accept. According to the testimony of respondent's bookkeeper and one of the former owners of the mine, Kenneth Stanley,
the quit slips were supplemented on Monday, April 14, 1980, with lay-off slipso
The lay-off slips allowed the complainants to draw unemployment compensation
after April 10, 1980, whereas the "quit" slips would not permit them to claim
unemployment compensation.
13. Stanley was at the mine office when complainants picked up their
checks on April 11, 1980, and he talked to them individually, or in a group,
in his office. He asked them to call him after he had investigated their
complaints. They did call back on Monday, April 14, 1980, and Stanley, or
his secretary, told them that they no longer had jobs at Mullin Creek's mineo
140 All of the complainants testified that they received certified
letters asking them to come back to work on May 1, 1980. All of them
returned to work after receiving the certified letters. None of the nine
complainants were reinstated to their former positions on a production shift.
Instead, they were assigned work related to laying track in the mine for the
purpose of opening a new section which would use a continuous-mining machine.
On May 9, 1980, after they had worked less than 2 weeks, all of the complainants received lay-off slips. According to the testimony of Earl Tolman and
Debbie Stanley, who worked in respondent's office, on May 9, 1980, the same
day that complainants were laid off, a total of 23 miners, including complainants, were laid off. On May 30, 1980, 11 additional miners were laid
off; on June 3, 1980, 10 miners were laid off; and on June 6, 1980, 3 miners
were laid off.
15. Two MSHA inspectors, named Hugh v. Smith and Danny Harmon, conducted
a spot inspection of respondent's No. 1 Mine on April 11, 1980, the day after
the complainants had left the mine in protest of unsafe conditions. Inspector
Smith wrote Citation No. 713379 at 4:15 p.m., under section 104(d)(l) of the
Act, alleging that a violation of 30 C.F.R. § 75.200 had occurred in the area
of the mine where retreat mining was in progress. The citation state's that
respondent's roof-control plan had been violated by the failure of respondent
to install roadway posts in the Nos. 1, 2, and 3 pillar blocks and by the
failure to use wooden cap blocks on the radius turn posts that had been
installed in the Nos. 1-6 pillar blocks. The citation also alleges that the
pillar blocks appeared to be taking weight because coal was sloughing from the

299

ribs and reducing the size of the pillar blocks. The other inspector, Danny
Hannon, issued Withdrawal Order No. 730125 at 5:45 p.m. on April 11, 1980,
alleging a violation of 30 C.F.R. § 75.301 because the minumum quantity of
9,000 cubic feet per minute of air was not reaching the last open crosscut to
carry away any hanuful dust and explosive gases which might have accumulated
in the mine. The order stated that there was insufficient air movement to
turn the blades of an anemometer. Inspector Harmon stated that no brattice
curtains at all had been installed on the section and that 10 brattice curtains had to be erected to direct an adequate volume of air to the last open
crosscut on the working section.
16. Kenneth Stanley was a co-owner of the No. 1 Mine on April 10, 1980,
when complainants left the mine after objecting to the hazardous conditions
which existed in the mine. Stanley sold his stock in June 1980 and, at the
time of the hearing held in March 1981, Stanley had no interest in Mullin
Creek Coal Company. On April 11, 1980, when complainants reported to the
mine office to pick up their checks, Stanley asked the miners to come into
his office to discuss the reason for their leaving the mine on April lOo He
talked to three or four of them individually and then all of them came into
his office at once. Stanley stated that the reason they gave for walking
out was that they were upset and nervous about the way the mine foreman had
talked to them on April 10. As indicated in Finding No. 13 above, Stanley
investigated their complaints and then advised all of them that they no longer
had jobs at Mullin Creek's mine"
170 Both Stanley and respondent 1 s bookkeeper testified that the miners
came to the mine dressed in casual clothes and that none of them wore hardhats or other clothing required for working underground. Both Stanley and
the bookkeeper saw the miners when they came for their checks around 11 a.m.
or noon and did not know whether the miners had brought their working clothes
with them for use around 3 p.m. when the second shift on which they worked
began.
18. Stanley stated that the mine foreman on the second shift, Elbert
Church, had reported to him that the complainants had left the mine before
their shift had ended, but Stanley could not recall whether Church had given
him a reason for complainants' leaving. Stanley stated that instructions had
been placed on the bulletin board and that all miners had been told that they
should report any unsafe conditions first to the section foreman, then to the
mine foreman, then to him, and that if the unsafe conditions were not eliminated by any of the management personnel at the mine, the unsafe conditions
should be reported to both the State and Federal inspectors.
19. Freddie Meade is a ram car operator who was hauling coal on the
second shift (3-to-11-p.m.) when the complainants left the mine. He said that
one of the complainants, Clyde Smith, tried to get him to leave at the time
the nine complainants left, but he declined to leave. Meade said that the
miners on the day shift were not setting timbers on their shift and that the
men on the second shift resented having to install timbers which should have
been set by the miners who worked on the day shift. Meade stated that the

300

required number of timbers had not been set on the second shift on April 10,
but he claimed that plenty of timbers could be found within three breaks of
the face and that the operators of the ram cars would bring timbers to the
working face if they were needed. Meade testified that there were plenty of
brattice curtains in the mine, but he did not like to see curtains hung near
the face because, in his opinion, they are a hazard to the loading of coal
because they obstruct vision. Meade agreed that conditions on the section
were unsafe on April 11 when the inspectors examined the mine.
20. Bobby Smith was the operator of the loading machine on April 10,
1980, when the nine complainants left the mine before their second shift had
ended. He agreed with the nine complainants that conditions in the mine were
bad on April 10 because the pillars had been cut all the way across, no
brattice curtains had been installed, and no roadway posts had been erectedo
Bobby Smith, however, said that no one complained about not having timbers,,
He also said that the reason the men left the mine on April 10 was that they
were upset because the mine foreman, Elbert Church, had changed some of their
positions around, such as Clyde Smith 7 s reassignment to setting timbers and
H. K. Tilley 7 s reassignment as helper for the operator of the roof-bol
machine. Bobby Smith said that the complainants were also upset because
were having to set timbers on their shift which should have been set on the
day shift. Bobby stated that in Church's speech to the men on the second
shift on April 10~ Elbert Church, the mine foreman, emphasized the fact that
he could not do anything about the way the day shift did its work, but that
he was responsible for the way they (the miners on the 3-11 porno shift) did
their work. Church also made it clear to the miners on the second shift that
they would have to increase production on their shift because the second
shift's production had declined considerably.
21. Bobby Smith also emphasized the fact that the miners on the second
shift were deliberately doing acts which interfered with production. He
mentioned such acts as deliberately stalling a ram car in a mud hole, throwing
a metal guard on the belt to stall it, and dumping coal on the feeder when
the beltline was already stalled. Smith claimed to have personal knowledge
only as to the stalling of the ram car.
22. Lawrence Kindrick is a certified mine foreman and is now working for
Moore and Moore Coal Company, but on April 10 he was employed by respondent and
was operating a coal drill on the 3-to-11 p.m. shift. He testified that the
mine foreman, Elbert Church, made a speech to the miners toward the first part
of the shift. The miners were upset about the things Church said and left the
mine, but Kindrick did not know when they left. He stated that he saw nothing
unsafe that night. Although he first.stated that he did not recall how the
section looked, he thereafter stated that the section was being ventilated,
that timbers had been set in each entry, and that there were plenty of timbers
available on the section.
23. Elbert Church was the mine foreman on the 3-to-11 p.m. shift on
April 10, 1980, when the complainants in this proceeding left the mine before
their shift was over. He has worked for respondent for the past 4 years. He

301

stated that production on the second shift had dropped to about half of the
amounts previously produced. He called the miners together on the night of
April 10 and told them that the section would be closed down if they did not
start producing more coal than they had been producing. He told them that
they were idle an excessive amount of the time and that if he found them
loafing when the section foreman had assigned them work to do, they would be
discharged on the spot. Church said that the miners on his shift had been
complaining because they had to set the timbers which the day shift should
have installed. He said that he told them the day shift was the day-shift
foreman's responsibility and that he would let the day-shift foreman worry
about that shift and that he would worry about his shift.
24. In Church's opinion, the complainants had left on April 10 because,
in his speech to them, he had threatened to fire them if they continued to
loaf when they should be working. Church agreed with the testimony of one of
the complainants, Clyde Smith, to the effect that Church had refused to grant
Smith's request for permission to talk to Church after Church had completed
making his speech on April 10. Church said the reason that he refused to
talk to Smith was that Smith had, on a previous occasion, talked to Church
for 45 minutes during a production shift. For that reason, Church believed
that anything Smith might have to say to him could be postponed to the end of
the shift. Church stated that he would not ask miners to work in unsafe conditions and claimed that he had had brattice curtains installed to within two
crosscuts of the working face. Church testified that he was on the surface
of the mine when complainants left early on April 10 and that he warned them
at the time they left that he would consider their leaving to be the same as
if they had been discharged.
Violations of Section 105(c)(l) of the Act Were Proven To Have Occurred
I believe that the 24 Findings of Fact set forth above summarize the basic
facts on which my decision should be based. The ultimate question raised by
the Complaint in this proceeding is whether violations of section 105(c)(l)
occurred. Section 105(c)(l) provides, in pertinent part, that:

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 * * * in any coal mine subject
to this Act because such miner * * * has filed or made a complaint under or related to this Act, including a complaint
notifying the operator or the operator's agent * * * at the
coal * * * mine of an alleged danger or safety or health violation in a coal * * * mine, * * * or because of the exercise by such miner * * * on behalf of himself or others of
any statutory right afforded by this Act.
The section foreman, Joe Beard, to whom complainants reported safety and
health violations, did not testify as a wit~ess to this proceeding. Several
of the complainants testified that they had complained to him about a lack of

302

timbers to set on the evening of April 10, that they had complained about the
unsafe roof conditions that existed on April 10, and that they had complained
about the lack of ventilation caused by the nonexistence of brattice curtains.
Respondent's witnesses did not purport to claim that they were in the presence
of the section foreman at all times on April 10 so as to be able to state that
no safety complaints were made to the section foreman.
Complainants' testimony to the effect that they complained about safety
clearly preponderates, especially in the absence of any testimony by the section foreman giving his version of the events which occurred on April 10.
The·Commission held in Local Union No. 1110, UMWA v. Consolidation Coal Co.,
2 FMSHRC 2812 (1980), that it is unrealistic to require that each of a group
of miners make his own individual complaint about safety if he knows that
other miners have already complained without receiving any improvement in
conditions.
There can be no doubt about the existence of unsafe conditions in the
mine on the 3-to-11 p.m. shift on April 10, 1980. Even respondent 1 s witnesses, with the exception of Lawrence Kindrick, testified that conditions
in the mine were unsafe on April 10, 1980. Kindrick's testimony is entitled
to almost no weight because he first testified that he did not recall what
conditions existed on April 10 and thereafter stated that timbers had been
set and that ventilation curtains had been installed.
The mine foreman stated that brattice curtains had been installed to
within two crosscuts of the working face. Even if that were true~ curtains
installed within two crosscuts of the working face will not provide the volume
of 9,000 cubic feet per minute of air at the last open crosscut which is
required by 30 C.F.R. § 75.301. Therefore, the mine foreman's testimony does
not controvert the complainants' contention that proper ventilation was not
being provided on April 10. Moreover, the mine foreman stated that he rejected
the complainants' objections to having to install timbers which should have
been set by the day shift on the ground that he was not responsible for the
failure of the day shift to comply with respondent's roof-control plan. The
mine foreman completely ignored the fact that the day shift's failure to
install timbers caused the miners on his shift to be exposed to unsafe roof
conditions until the miners on his shift could install the timbers which had
not been erected by the day shift. The mine foreman's excuse that the day
shift's foreman could worry about the day shift and that he would worry about
the night shift was a clear failure on his part to carry out his responsibility
to see that the working section was safe. Obviously, one of the reasons that
his second .shift's production had declined was that his men were having to do
the roof-support work which should have been perfonned by the crew of men who
worked on the day shift. It is not surprising that his men became upset
when he threatened to fire them for loafing and refused to listen to their
complaints.

303

Respondent's Claim that Miners Did Not Stop Working Because of Unsafe
Conditions
The primary defense which respondent makes to the complainants' contention that they refused to work on April 10 because of the un~afe conditions
in the mine, is that all of the miners who refused to work gave as their reason for refusing to work that they they were upset and nervous. Nearly all of the
complainants testified that they were nervous and upset when they refused to
work on April 10. That would be a norm.al reaction fqr men to have who were
exposed to unsafe roof conditions each day when they reported to work. That
would also be a normal reaction for men to have when their foreman blames
them for failure to produce large quantities of coal while simultaneously
expecting them to do the roof-control work which should have been performed
by the miners on the day shift.
Every one of the unsafe and unhealthful conditions cited by the compiainants who refused to work was corroborated by the testimony of respondent 1 s
own witnesses. The mine foreman conceded that one of the complainants had
been sent to obtain a supply of timbers and therefore was not present at the
time he made his speech threatening to fire the men if they did not increase
their production of coalo The fact that a man had been sent to obtain timbers
supports the complainants 1 contention that an adequate supply of timbers was
unavailable on the section at the time they were told to set timbers"
The complainants' contention that timbers were not being set by the
shift is also supported by the fact that when Inspector Smith examined the
mine on April 11, the day after the men refused to work because of unsafe
roof conditions, he cited respondent for an unwarrantable failure violation
of its roof-control plan in that roadway posts had not been set in the Noso
1, 2 and 3 pillar blocks, that cap blocks were not being used on the radius
turn posts that had been installed in the Nos. 1 to 6 pillar blocks. Additionally, the inspector noted that two of the pillar blocks had been dangered
off by respondent as being unsafe for extraction operations. The danger signs
had been erected on the next shift following the one on which the complainants
had refused to work. The inspector's finding of unsafe roof conditions on
April 11 is strong corroboration for the complainants' contention that the
roof was unsafe at the time. they refused to work.
As to the complainants' contention that an inadequate amount of air was
being provided at the working face, Inspector Harmon wrote an order of withdrawal under the unwarrantable failure provisions of the Act on the next day
after the men refused to work. The reason given for his writing the order
was that his anemometer would not even turn when he tried to determine
whether the required volume of 9,000 cubic feet of air per minute was being
provided at the last open crosscut. Inspector Harmon testified that no
brattice curtains whatsoever had been installed in the working section and
that it was necessary for the miners to erect 10 brattice curtains before
an adequate volume of air could be directed to the working face. The
inspector's finding on April 11 as to a complete lack of brattice curtains
is strong corroboration for the complainants' contention that the section
was not being ventilated properly on April 10 when they refused to work~

304

As I have indicated above, respondent's mine foreman conceded that curtains had been installed only up to two crosscuts from the working face. It
is not likely that the day shift would have come in and torn down the curtains on the morning of April 11 if they had actually existed on the evening
of April 10. Even assuming that the mine foreman's testimony is correct, the
lack of curtains for a distance of two crosscuts from the place where complainants were working would have failed to provide adequate ventilation at
the working face.
It is true that Stanley, one of respondent's co-owners, claims to have
interviewed the men on April 11 after they had walked out on April 10. He
claims that the men defended their refusal to work only on the grounds that
they were nervous and upset and that they did not complain about unsafe or
hazardous conditions on April 11. Stanley promised to investigate the cause
of their being upset and nervous, but the only investigation he made was to
ask the mine foreman what had happened. Stanley did not go underground on
either April 10 or April 11 to examine the working section. He had told the
complainants to call him on Monday after he had finished his investigationo
When the complainants did call, Stanley told them that he no longer had a
job for them.
The conditions described by the complainants on April 10 and the conditions described by the inspectors on April 11 would be expected to cause
miners to be upset and nervous. The fact that complainants may not have
articulated the reason for their being upset and nervous at the time they
refused to work is not a sufficient reason to dismiss the Complaint when
the evidence shows that working conditions in the mine were both unsafe and
unhealthful at the time they refused to work. Several of the complainants
testified that they were too nervous to eat their lunch and one man was so
upset that he vomited.
It should be noted that the mine foreman did not try to determine the
cause of their refusal to work.· The only action he took when he saw the
complainants leaving on April 10 was to tell them as they walked past his
office that he would consider them to have been discharged if they walked
out before the shift had been completed.
The Alleged Sabotage
Respondent claims that the miners were committing acts of sabotage in
the mine. The mine foreman testified that the miners were throwing objects
into the feeder and on the conveyor belt for the purpose of causing it to
become so choked with foreign materials that the equipment had to be stopped
while the clogging materials were extricated. The operator of the loading
machine claimed that he saw one of the complainants deliberately drive a '
ram car in a mud hole for the purpose of rendering it inoperative.
One of the complainants, James Clevenger, testified that he repaired a
wire in the control panel on the ram car. No one tried to controvert
Clevenger's claim that he repaired a wire in the ram car. Therefore, the

305

evidence is at least equivocal as to whether the ram car was deliberately
stuck in a mud hole or simply ceased to run because of the defective wire
at the time it became mired in mud.
Respondent does not take the position that it discharged complainants
because of the alleged acts of sabotage described above. Since Respondent
does not claim.that it discharged complainants because of the alleged acts
of sabotage, it is unclear to me just how respondent would have me use its
claim that complainants were deliberately trying to slow down production.
Respondent's Claim that Complainants Refused To Work Because of Peer Pressure
Respondent claims that complainants refused to work on April 10 because
several of the miners' jobs had been changed. The mine foreman changed H. K.
Tilley 1 s job from that of an operator of a ram car to that of a helper to the
operator of the roof-bolting machine and the mine foreman changed Clyde Smithvs
job from operator of the coal drill to that of setting timbers" Two of the
men (Freddie Meade and Bobby Smith) who remained in the mine and continued
working on April 10 testified that two of the complainants, Tilley and SmithD
respectively, tried to get them to leave the mine because Tilley and Smith
were upset over the changes in their jobs.
Each of the complainants testified that he had refused to work on April 10
because of unsafe and unhealthful conditions in the mineo If the evidence discussed above and the findings of fact set forth above had failed to show that
unsafe and unhealthful conditions existed in the mine on April 10 respondent c
claim that the men were persuaded to leave by Tilley and Smith who were dissatisfied with their job assignments would be more persuasive than it is.
Clyde Smith testified that the change in his job from operator of the coal
drill to that of setting timbers did not upset him because the change provided
him with an opportunity of making the mine safe by giving him time to set the
timbers which were required by the roof-control plan. Smith claimed, however»
that only six timbers were available on the section at the time he started
to set timbers on April 10. After he and two other miners had set the six
timbers available, he asked the section foreman to obtain a supply of additional timbers. The mine foreman testified that David May had been dispatched
to obtain timbers. The evidence, therefore, supports Smith's claim that he
could not set timbers because none were available after he had installed the
six which were present on the section when he reported for work.
The fact that all nine complainants left at the same time indicates that
they probably had a discussion among themselves about leaving before they
actually left the section. There is a lack of evidence, however, to show
that the primary reason the miners left was that four of them had had changes
in their job assignments. Assuming that Smith was upset over the change in
his job assignment, the evidence shows that he had additional reasons for
refusing to work and for trying to influence some of the other miners to
refuse to work. He testified that when he asked the section foreman for
additional timbers, the section foreman told him that he could not stop

306

production while timbers were set. Smith also testified that the section
foreman became very agitated when Smith suggested that a Federal inspector
be called to examine conditions on the section. Smith also said that the
mine foreman refused to listen to his complaints after the mine foreman had
made his speech exhorting the men to increase production. The mine foreman
himself corroborated that David May had been sent to obtain a supply of
timbers. Consequently, Smith had quite a few reasons to be upset about conditions in the mine on April 10 and it is quite likely that he included his
job reassignment as one of the reasons for suggesting that all of the men
ought to refuse to work in protest of the conditions which existed. Both of
respondent's witnesses who claimed that Tilley and Smith had tried to get
them to leave the section also testified that conditions on the section were
unsafe on April 10 when the nine complainants ref used to work and left the
section.
In view of the circumstances described above, I cannot conclude that the
Complaint in this proceeding should be dismissed just because one or two of
the complainants may have been active in persuading the other seven
ants to refuse to work in protest of the unsafe conditions under which
were asked to perform, especially in light of the mine foreman~s request
that they increase production at the same time that he declined to take
action to provide proper roof support and ventilation.
The Recall of Complainants on May 1 2 1980
One of the few facts in this proceeding which was undisputed is the fact
that all nine of the complainants were sent certified letters asking that
report for work on May 1, 1980. All of them did report for work in response
to the certified letters. None of them, however, were reinstated to the positions on a production section which they held prior to their discharge on
April 10. Both Stanley, the co-owner who testified at the hearing, and the
company's bookkeeper stated that the nine complainants were recalled for the
sole purpose of doing manual labor, such as laying railroad track, required
for opening a new section which would utilize a continuous-mining machine in
lieu of the conventional equipment which was being used in the section of the
mine where complainants were working on April 10. Stanley stated that he
knew when he recalled the nine complainants that they would be used in connection with opening the new section and that they would be laid off when
that limited work had been completed. As it turned out, the nine complainants did various types of manual labor at the mine and were then laid off on
May 9 after working less than 2 weeks.
The evidence shows that on May 9, when complainants were laid off,
14 other miners were laid off. Additional miners were laid off on other dates:
11 on May 30, 10 on June 3, and 3 on June 6. The reason for the general reduction in personnel was that the mine was converted to use of continuous-mining
machines which require fewer miners than operation of a mine using conventional
equipment. Respondent contends that even if violations of section lOS(c)(l)
are found to have occurred so as to warrant the reinstatement of some of the
miners, and payment of lost wages to all of them, that the only period for

307

which they should be permitted to earn back wages would extend from the time
of their discharge on April 10, 1980, to the time of their reinstatement on
May 1, 1980. The reason for respondent's position as to back pay is, of
course, based on its argument that the miners were laid off on May 9 as a
part of a general reduction in working force and not because of anything
which happened on April 10, 1980.
I find that respondent's position as to back pay must be rejected for
several reasons. There was not a true reinstatement of complainants to the
positions which they held at the time of their discharge. The co-owner who
testified at the hearing stated unequivocally that when complainants were
recalled on Hay 1, respondent's management knew that complainants would be
employed only for a very brief period of time for the purpose of laying track
to open the new sectiono Respondentvs witnesses did not explain how the
reduction in force was madeo All of complainants were discharged on May 9~
the day when the first group of miners were laid offo There is nothing in
the record to show that all nine complainants would have been laid off on
May 9 if they had not refused to work on April 10. The fact that complainants were recalled for a short-term job and then laid off
9 days later
as a general reduction in force supports a conclusion that the rehiring and
second discharge were part of a plan deliberately designed to prevent the
miners from recovering back pay in the event their Complaint in this proceeding should be grantedo
The Hiners 1 Right To Withdraw Because of Unsafe Conditions
The findings of fact set forth at the beginning of this decision show
that complainants had been exposed to unsafe conditions on April 10, 1980.
The Commission held in Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (1980),
that a miner has the right under the Act to refuse to work in hazardous conditions. The evidence shows that complainants had objected to the lack of roof
support and ventilation on April 10, 1980, prior to the time that they refused
to work. Therefore, respondent violated section 105(c)(l) of the Act with
respect to each of the nine complainants when respondent refused to allow
complainants to return to work on April 11 because of their refusal to work
in unsafe and unhealthful conditions on the afternoon and evening of April 10,
1980. The order accompanying this decision will hereinafter require respondent to reinstate to their former or equivalent positions all of the complainants who wish to be reinstated. Respondent will also be ordered to pay all
complainants the wages which they would have earned if they had not been
unlawfully discharged on April 10, 1980.
It was agreed at the hearing that evidence would not be taken with respect
to the jobs which some of the complainants have held between the time they
were discharged on April 10, 1980, and the time that they are paid back wages
under the order accompanying this decision. At the conclusion of the hearing
on the merits, I stated that I would provide a period of time for complainants
to calculate their back pay and that a supplemental hearing would thereafter
be scheduled at which respondent would be g~ven the opportunity to challenge
any of the facts underlying the calculations of back wages. No final decision

308

will be issued in this proceeding until the facts necessary for awarding back
pay can be obtained.
Civil Penalty
Counsel for complainants requested at the conclusion of the hearing that
I assess civil penalties for the violations of section lOS(c)(l) which I have
found to exist. My order issued January 13, 1981, providing for hearing in
this proceeding, consolidated the civil penalty issues with the issues raised
by the filing of the Complaint, but that order made it clear that I would defer
the assessment of civil penalties until such time as the Secretary of Labor
files a Proposal for Assessment of Civil Penalty pursuant to the provisions
of sections lOS(a) and llO(a) of the Act and sections 2700.25~ 2700026 0 and
2700.27 of the Commission's Rules of Procedure (29 C.F.R. §§ 2700.25, 2700.26
and 2700.27).
WHEREFORE, it is ordered:
(A) The Complaint of Discharge, Discrimination, or Interference filed
in this proceeding on October 24, 1980, is granted for the reasons hereinbefore given.
(B) Respondent shall reinstate Jerry Lee Smith, Monroe Mullins, Ho K.
Tilley, and James R. Clevenger to their former or equivalent positions at
respondent's Noa 1 Mine.
(C) Respondent shall pay all nine complainants the wages they would have
earned if they had not been unlawfully discharged on April 10, 1980. Back
pay may be reduced by the amount which any of the complainants earned from
working at other jobs between the date of their discharge on April 10 and the
time of their reinstatement with respect to the four miners named in paragraph
(B) above or to the time of repayment of back pay with respect to the remaining five complainants who do not wish to be reinstated.
(D) Respondent shall provide MSHA's investigators and complainants
with such information as they may need from respondent's payroll records in
computing the back pay.
(E) Complainants' counsel is responsible for assuring that the basic
facts required for computing back pay and offets thereto are gathered, compiled, and computed. The time for accomplishing the gathering of said
information and making the necessary calculations will expire on May 22)
1981, unless an extension of time is required and requested.
(F) The employment records of all nine complainants shall be completely
expunged of all references to their unlawful discharge and matters relating
thereto.
(G) Counsel for complainants and counsel for respondent shall confer
and agree upon a mutually convenient time for recovening of the hearing for

309

the purpose of pennitting respondent's counsel to develop any facts which may
be required pertaining to places where complainants have wo~ked between the
time they were discharged on April 10, 1980, and the time the hearing is
reconvened. The date agreed upon shall be reported to me and an order providing for reconvening of the hearing will be subsequently issued subject to
openings in my calender of hearings and the availability of a suitable hearing room. If the date requested by counsel conflicts with my calender or
the availability of a hearing room, a change in the date will not be made
without-giving counsel for both parties an opportunity to arrive at an
alternative date.

~ Cf, ~¥/6-;Y-

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

Darryl A. Stewart, Attorney, Office of the Solicitor~ U.S. Department of
Labor, Room 280, U.So Courthouse, 801 Broadway, Nashville, TN 37203
(Certified Mail)
Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc.~
Lowe, Lowe & Stamper, P.O. Box 69. Pikeville 0 KY 41501 (Certified Mail)

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310

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

May 18, 1981
Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of CLYDE JR. SMITH,

Docket Ho. KENT 81-17-D

CLEVENGER, MONROE
MULLINS, DAVID MAY, JERRY LEE
JAMES R.

No. 1 Mine

SMITH, JOHN R. TELFER, JR.,
JAMES

THACKER, H.K. TILLEY, JR.,

AND THOMAS V. WALKER,
Complainants
v.
1'IULLIN CREEK COAL COMP ANY·, INC. ,

Respondent

ORDER GRANTING REQUEST FOR EXTENSION OF TIME
Counsel for complainants filed on May 15, 1981, in the above-entitle('.
proceeding a letter requesting that the time for compiling
data
for complainants in this proceeding be extended from the date of May 22,
1981, to July 6, 1981. As grounds for granting the motion, complainants'
counsel states that the special investigator who was working on the case
has been attending a training program in Beckley, West
, for several
weeks and has been unable to devote any time toward the compilation of the
back wages involved.
In the order accompanying the bench decision mailed to the parties on
March 17, 1981, I provided in paragraph (E) that the time for compiling the
data required for computing the back pay due complainants under my bench
. decision would expire on May 22, 1981, unless an extension of time was found
to be required. Under the Commission's rules, 29 C.F.R. §§ 2700.8(b) and
2700.lO(b), respondent has a period of 15 days within which to file an answer
to complainants' motion for an extension of time. Inasmuch as the date of
May 22 will come before the 15-day period for filing a reply has expired, I
shall act upon the motion at this time. If respondent's counsel files an
answer in opposition to the granting of the extension of time, I shall modify
this order, if necessary, to consider any objections which may be raised by
respondent in opposition to the grant of the request for extension of time.
It was obvious at the hearing that complainants have not kept precise
records as to the dates of their employment or the amounts paid. I would
assume that the investigator will have to check with the employers of those
complainants who have held other jobs in order to determine the precise
amounts that they received from such employers. As to those complainants
who have not worked any place since their discharge by respondent, it does
not appear that much work would be necessary to determine the amount of
their back pay. The extension requested is approximately 6 weeks and it may
well take 6 weeks to interview all the complainant~ and obtain the required

311

facts. Therefore, I shall grant the extension at this time, pending receipt
from respondent's counsel of any facts which may warrant a reduction in the
time required for obtaining the necessary back-pay data.
The official file now contains the filings by respondent's counsel
seeking to obtain review of my bench decision. The provision in the order
accompanying my bench decision for reconvening of the hearing was granted in
response to the request for a further hearing made by respondent's counsel.
I should make it clear at this time that if respondent's counsel is able to
agree with complainants' counsel as to
amount of back pay due to each
of the complainants, I am willing to accept such a stipulation. A stipulation would avoid the necessity of holding a further hearing. If the amount
of back pay could be provided to me without the need for holding a further
hearing. I would be willing to insert the back-pay amounts for each complainant in my bench decision and issue it in final fonn within a very short time
after I have received the necessary information from the parties.

If the procedure set forth in the preceding paragraph could be followed 0
respondent could file its petition for discretionary review immediately upon
receipt of my final decision. I am suggesting the above-described procedure
for the partiesv consideration. If a further hearing is desired by the parties~
I shall be glad to hold it at a date which is agreeable with the parties so
long as such date does not conflict with my own calendar of hearings or the
availability of a hearing room.
WHEREFORE, for the reasons given above~ it is ordered:
The request for an extension of time to and including July 6, 1981,
within which to compile the back-pay data required by paragraph (E) of the
order accompanying my bench decision is granted and the time is extended
to July 6, 1931.

~ C. ~-:f;;-//f:. ...
Richard C. Steffey ~
Administrative Law Judge
(Phone: 703-756-6225)
Distribution:
Darryl A. Stewart, Attorney, Office of the Solicitor, U.S. Department
of Labor, Room 280, U.S. Courthouse, 801 Broadway, Nashville, TN
37203 (Certified Mail)
Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc.,
Lowe, Lowe & Stamper, P.O. Box 69, Pikeville, KY 41501 (Certified
Mail)

312

FEDERAL MU~:./ SAFETY AND HEALTH REVIEW' ':;;OM MISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JAN 12 1982
Complaint of Discharge,
Discrimination, or Interference

SECRETARY OF LABOR,
MINE s·AFETY AND HEAL TH
ADMINISTRATION (MSHA),
on behalf of CLYDE SMITH, JR.,
JAMES R. CLEVENGER, MONROE
MULLINS, DAVID MAY, JERRY LEE
SMITH, JOHN R. TELFER, JR.,
JAMES THACKER, H. K. TILLEY, JR.
AND THOMAS V, WALKER,
Complainants

Docket No. KENT 81-17-D
No. 1 Mine

v.
MULLIN CREEK COAL COMPANY, INC.,
Respondent
ORDER PROVIDING FOR COMPUTATION OF BACK PAY
Preliminary Considerations
1.

The Effect To Be Given to Delay in Providing Data

A hearing was held in the above-entitled proceeding on March 6 and
7, 1981. On March 17, 1981, I mailed to the parties a bench decision
finding that respondent had violated section 105(c)(l) of the Federal
Mine Safety and Health Act of 1977 and ordering respondent to reinstate
four of the nine complainants and reimburse the remaining five complainants for back pay which they would have earned if they had not been unlawfully discharged. Paragraph (E) of the bench decision provided that
counsel for complainants was responsible for gathering the required
information and computing the amount of back pay due to each of the nine
complainants. Paragraph (E) also provided that the time for computing
back pay would expire on May 22, 1981, unless an extension of time was
requested.
Counsel for complainants filed on May 15, 1981, a request for an
extension of time to and including July 6, 1981, within which to compile
the necessary information and compute the amount of back pay due t~ complainants. The sole reason given for the requested extension of time was
as follows:
We request an extension because the Mine Safety and Health
Administration Special Investigator working with us on the case
has been unable to devote any time toward the compilation of
the back wages involved, primarily due to a communication breakdown and due to his attendance for several weeks in a training
program held in Beckley, West Virginia.

313

I issued on May 18, 1981, an order granting the request for an
extension of time. I was well aware when I granted the extension of time
that respondent's exposure to payment of back pay and interest would be
increased by the grant of the extension. Therefore, in my order of May 18,
1981, I made the following observation:

* * * Under the Commission's rules, 29 C.F.R. §§ 2700.S(b) and
2700.lO(b), respondent has a period of 15 days within which to
file an answer to complainants' motion for an extension of time.
Inasmuch as the date of May 22 will come before the 15-day period
for filing a reply has expired, I shall act upon the motion at
this time. If respondent's counsel files an answer in opposition
to the granting of the extension of time, I shall modify this order,
if necessary, to consider any objections which may be raised by
respondent in opposition to the grant of the request for extension
of time.
Respondentvs counsel never did file any objection to the grant of the extension of time.
Paragraph (G) of my bench decision provided, among other things, as
follows:
(G) Counsel for complainants and counsel for respondent
shall confer and agree upon a mutually convenient time for reconvening of the hearing for the purpose of permitting respondent's
counsel to develop any facts which may be required pertaining to
places where complainants have worked between the time they were
discharged on April 10, 1980, and the time the hearing is
reconvened. * * *
The order extending the time for compiling and computing back pay also
stated that if the parties could agree on the facts pertaining to computation of back pay, no supplemental hearing would be required, Counsel
for complainants filed a letter on July 21, 1981, stating, in its entirety,
as follows:
In accordance with your request, be advised that the above
respondent's attorney and myself have agreed that the latter
part of October, 1981 or anytime in November, 1981 would be
an agreeable time to conduct the further hearing in the above
proceeding.
The above suggested hearing period was agreed upon in light of
respondent's request to obtain copies of complainants' 1980
Federal Income Tax Return and W-2 Forms for 1980 which are not
presently in respondent's possession.
Although I presently possess some of the documents respondent
has requested, the reamining copies must be obtained from the
IRS Center in Memphis, Tennessee. Be advised, however, that I

314

have already instituted the procedure whereby the complainants
can obtain the requested documents from the Internal Revenue
Service; however, the IRS has informed me that the process may
take up to 10 weeks.
Accordingly, if the above suggested hearing period is unacceptable, please so inform us so that the parties can undertake to
make other arrangements.
In a notice of reconvening of hearing issued August 10, 1981, I stated
that I had already scheduled hearings to be held in October and during the
first week of November. Therefore, I scheduled the hearing in this proceeding to be reconvened on November 17, 1981.
Up to the time the hearing was reconvened on November 17, 1981,
respondent's counsel had voiced no objections to the length of time which
had passed between the issuance of my bench decision on March 17, 1981,
and the reconvening of the hearing on November 17, 1981. Shortly after
the hearing had begun on November 17, however, counsel for respondent
stated that he had complied with the orders in my bench decision by furnishing complainants' counsel with the rates of pay which the complainants
had been earning at the time of their discharge, but that complainants'
counsel had still not provided respondent with the dates and places where
the complainants had worked and that he did not think respondent should
have to pay for the delay which had resulted from the failure of complainants v counsel to provide the necessary information (Tr. 967-968),
Counsel for complainants stated that he had tried to obtain the
necessary information, but had been unable to do so because the complainants had failed to respond to the letters he had sent to them requesting
information. Counsel for complainants concluded his explanation for the
length of time which had been spent in trying to get information as
follows (Tr. 971-972):

* * * I've indicated that this portion of the proceeding is an
individual effort; it's not a group effort. They can't rely on
information provided by one miner to support their claim for back
wages; they have to bring it forward themselves. I've even sent
them forms that requested for the IRS where all they had to do was
fill out the information and mail it in and IRS would send it back
to them. I haven't gotten that from several of the men. Now,
Your Honor, I'd like to say for the record I can't come down here
and sit with them every day. I can't travel with them to where
they're going. I have to put some responsibility on these men and
I just haven't got it for each one of them.
I ruled at the hearing that each of the nine complainants would testify and
that his back pay would be allowed, based on whether he had cooperated in
providing information in a prompt manner (Tr. 973-974).

315

Now that I have reviewed the transcript and have reconsidered the
matter of delay, it is obvious that complainants' counsel could have provided respondent's counsel with complete information from the miners who
responded promptly to his requests for information. If that had been done,
it might have been unnecessary to have had all of the miners reappear to
give testimony about facts which may have been in the possession of complainants' counsel for several months prior to November 17 when the hearing
was reconvened.
It is clear that the failure of some miners to provide information
caused an inordinate delay between the rendering of the decision on the
merits and the calculation of back pay. A large part of the delay resulted simply from the fact that nine complainants are involved. They
live in various parts of the country. Complainant Walker, for example,
had to drive 400 miles one way just to
at the hearing (Tr, 974)"
They have a wide range of ability and understanding of what was required
of them.
Respondent 1 s counsel requested that my rulings with respect to back pay
take into consideration the complainants~ inordinate
in
the
information required for computation of back pay. I would like to grant
respondent's request and place a cut-off date beyond which respondent would
not be liable for payment of back pay, but there are various equities to
consider. The most unjustified delay occurred innnediately after the
issuance of my bench decision on March 17, 1981. As indicated above" my
bench decision provided that all data be compiled and that back-pay computations be supplied to me by May 22, 1981. Yet· nothing whatsoever was done
during that 2-month period. Counsel for complainant explained that the
2-month delay had occurred because of a "communications breakdown" and the
attendance by MSHA's special investigator at a training program conducted
in Beckley, West Virginia. Respondent's counsel can hardly be held responsible for that 2-month delay, but neither can the nine complainants be held
responsible because they were not asked to supply any information at all
during that 2-month period. I would like to hold that respondent is not
liable for payment of back pay during that period, but, if r'were to do so~
I would be penalizing the complainants for possible shortcomings of their
counsel and MSHA's special investigator during that period.
Respondent's counsel did not specifically object to the initial 2month delay. His objection as to the delay was directed to the period of
time after June 10, 1981, when he supplied to complainants' counsel the
rates of pay which complainants were earning prior to their discharge.
Counsel for respondent also objected to the failure of complainants' counsel
to provide him with income tax returns and other data when complainants'
counsel sent respondent's counsel a letter dated October 28, 1981 (Tr. 968;
972). Complainants' counsel explained that he had obtained income tax
returns and other data from some of the complainants and that he thought
they had been sent to respondent's counsel, but that his secretary inadvertently failed to enclose them with the letter of October 28 (Tr. 969).

316

Respondent's counsel, of course, could have called complainants' counsel
prior to the hearing to advise him that the enclosures referred to in the
letter of October 28 had not been included with the letter. Additionally,
neither counsel apparently ever undertook to discuss each complainant 1 s
back pay on an individual basis so as to make an attempt to reach a specific
figure with respect to each complainant.
The legislative history pertaining to section 105(c) of the Act makes
it clear that Congress wanted the miners to be reimbursed for all costs
incurred by the miners as a result of any act of discrimination. Page 37
of Senate Report No. 95-181, 95th Cong., 1st Sess., May 16, 1977, states as
follows:
It is the Committee's intention that the
propose,
and that the Commission
, all relief that is necessary to
make the complaining party whole and to remove the deleterious
effects of the discriminatory conduct including, but not limited
to reinstatement with full
rights,
with
interest, and recompense for any special damages sustained as a
result of the discrimination. The specified relief is only illustrative. Thus, for
, where appropriate, the Commission
should issue broad cease and desist orders and include requirements
for the posting of notices by the operator.
In view of the legislative history quoted above, I believe that the ruling
I made at the hearing is the
one which can be made with respect to
reducing respondent's exposure to payment of back pay, that is, that the
complainants are entitled to receive back pay for any
after their
discharge when they did not have jobs paying at least as much as they would
have received had they not been discharged, the only exceptions being in
those instances when complainants caused undue delay by failing to respond
to requests for information made
their counsel and MSHA's special
investigator (Tr. 972).
2.

The Effect To Be Given to. Complainantsv Decline of Reinstatement

Counsel for respondent also pointed out at the hearing (Tr. 1167)
held on November 17, 1981, that five complainants had testified during the
initial hearing held on March 6, 1981, that they did not want to be reinstated at respondent 1 s mine. Respondent's counsel argued that respondent
should not have to make payments of back wages to any complainant who
declined reinstatement on March 6, 1981. As to that argument, it is clear
that my bench decision contemplated that the miners declining reinstatement would be entitled to back pay up to the time that checks for back pay
were actually written. Paragraph (C) of my bench decision ordered respondent to provide back-pay for the miners who declined reinstatement for the
period running from their first discharge on April 10, 1980, to "* * * the
time of repayment of back pay". The bench decision was issued on March 17,
1981. If I had had the necessary data regarding back pay, I could have
issued a final decision on March 17, 1981,.and that decision would have
required that respondent provide back pay for all complainants declining

317

reinstatement through the date on which the checks for back pay were
written. Since I still did not have such information on the date the hearing was reconvened on November 17, 1981, the payment of back pay for the
miners who declined reinstatement would still be running if respondent had
not, on or about September 14, 1981, offered to reinstate all nine complainants. The running of back-pay obligations ceased as of September 14,
1981, because all those complainants who declined the actual offer of back
pay have no right to be paid for any period beyond the date when they
either accepted the offer and commenced working again for respondent, or
declined the opportunity to be placed on respondent's payroll again.
Interest on the payment of back pay will, of course, continue to run until
the day the payments are actually made.
3.

Stipulation for Period Between First Discharge and Second Discharge

Finding Nos. 11 through 14 in my bench decision explain that all nine
complainants in this proceeding were first discharged on April 10, 1980,
when they refused to work because of unsafe conditions. All nine complainants were given an opportunity to return to work at respondentvs mine on or
about May 1, 1980. All nine of the complainants returned to respondent 1 s
mine and worked until they were discharged again on May 10, 1980. Consequently, complainants are entitled to back pay for the 14-day period from
April 10, 1980, to May 1, 1980. One complainant did not return until after
May 1 and is entitled to pay for about 16 days. Counsel for the parties
submitted as Exhibit 4 in this proceeding a stipulation providing for the
exact amount of back pay each complainant is entitled to receive for the
period from April 10 to May 1, 1980. That stipulation will be used to
dispose of all questions pertaining to the calculation of back pay between
complainants' first discharge and their rehiring on or about May 1, 1980,
with a possible exception in the case of Complainant James Thacker, as
hereinafter explained.
4.

Exclusion of Back Pay for Period from April 9, 1981, to June 8, 1981

Although respondent's No. 1 Mine is not considered to be a "unibn"
mine, respondent's mine was unable to produce coal from April 9, 1981, to
June 8, 1981, because of the general strike called by the United Mine
Workers of America during that time. Since complainants would not have
been able to work during the strike even if they had not been discharged,
they are not entitled to back pay or interest on back pay for the period
extending from April 9, 1981, to June 8, 1981 (Tr. 1054; 1165).
Method for Computing Back Pay for Each Complainant
1.

Thomas Walker

Thomas Walker was discharged by respondent on May 10, 1980. At the
time of his discharge, he was earning $73.20 per day. He began looking for
another job on June 6, 1980, when he applied for work at Greenwood Coal
Company and Tibbal Floor Company. He next sought work at Sterns Coal Company

318

on June 17, 1980 (Tr. 976). He asked for work at West Coal Company on
July 10, 1980. He updated his application at Greenwood Coal Company on
July 23, 1980, and returned to Sterns Coal Company and Tibbal Floor Company on August 6, 1980. He made two additional trips to.Greenwood Coal
Company on August 21, 1980, and August 27, 1980 (Tr. 977). He went on
September 9, 1980, to the coal washer of Greenwood Coal Company which
hires miners for Greenwood. On September 9, 1980, he also tried to get
work again at West Coal Company and on September 19, 1980, he went back to
Greenwood Coal Company. He returned to Greenwood's coal washer on
October 1, 1980. He applied for work at a tent factory in Sterns, Kentucky,
on October 16, 1980, and on October 17, 1980, he returned to Greenwood Coal
Company to ask for work. He applied for a maintenance job at McNairy
County Manufacturing Company on November 14, 1980. He returned to the tent
factory and Tibbal Floor Company on December 10, 1980, to ask for work
(Tr. 979). When he returned to Greenwood Coal Company on December 19, 1980,
he was promised a job. He applied for work at A & S Coal Company on
January 3, 1981. He updated his application at A & S Coal Company on
January 16, 1981, and the foreman at A & S Coal Company told him to report
for work on February 2, 1981 (Tr. 979). The evidence shows that Walker
made a conscientious effort to secure alternative employment after his
discharge by respondent on May 10, 1980.
Walker was paid $72.00 per shift when he began working for A & S Coal
Company. Walker was still working for A & S when he testified in this proceeding on November 17, 1981, and he was still being paid $72.00 per shift
(Tr. 980). As compared with Walker's rate of pay at A & S, his rate of pay
at respondent's mine was $73.20. If Walker had continued working for respondent, his rate of pay would have increased by $5.60 to $78.80 on
September 1, 1980 (Tr. 1165). Since Walker is entitled to be paid at the
rate he would have earned if he had not been discharged on May 10, 1980,
Walker is entitled to be paid at the rate of $73.20 from May 10, 1980, to
September 1, 1980, and at the rate of $78.80 from September 1, 1980, to
February 2, 1981, when he began to work for A & S (Tr. 979). Additionally,
Walker is entitled to be paid the difference of $6.80 between his A & S
wages and the wages he would have been paid by respondent up to the time
he was offered reinstatement on September 14, 1981, exclusive of payment of
differential during the strike, that is, from April 9, 1981, to June 8,
1981.
2.

John Robert Telfer

John. Robert Telfer was discharged by respondent on May 10, 1980.
Immediately after his discharge, he started trying to find work. Between
May 10, 1980, and October 31, 1980, he made unsuccessful trips about three
times each month to ask for work at Pikco Coal Company, Maxann Coal Company,
V & M Coal Company, and Five S Coal Company. Telfer's father-in-law was a
foreman at Wolf Creek Collieries and on October 31, 1980, his father-in-law
obtained a job for him at the No. 4 Mine of Wolf Creek Collieries (Tr. 996997). His rate of pay at Wolf Creek's mine was $12.25 per hour, or $98.00
per shift, as compared with $79.20 per sh±ft which respondent was paying
him at the time of his discharge (Tr. 997).

319

At the time of the hearing held on March 6, 1981, in this proceeding,
Telfer testified that he did not want to be reinstated at respondent's
mine because on March 6 he was working at Wolf Creek for wages of $98
per day as compared with ·respondent's payment of $79. 20 per day (Tr. 998).
Although respondent's mine was much closer to Telfer's home than Wolf
Creek's No. 4 Mine was, Telfer rode to and from work with his father-inlaw without charge. As a foreman for Wolf Creek, his father-in-law was
ceimbursed by Wolf Creek for the gas used in traveling to and from work
(Tr. 1007).
Wolf Creek's No. 4 Mine was divided into an "upper" and a "lower"
mine. Management decided to close the upper mine. The closing of the
upper mine made it necessary for Wolf Creek to lay off miners at the lower
mine so as to provide jobs for employees with considerable seniority who
lost their jobs when the upper mine was closed. Telfer had only been
working for Wolf Creek for a few months when the decision to close the
upper mine was made. Telfer's lack of seniority made it necessary for
Wolf Creek to lay him off on July 11, 1981 (Tr. 1008; 1019-1020). Telfer
therefore, did not have any job on September 28, 1981~ when respondent
offered to reinstate him at its No. 1 Mine. Consequently, Telfer accepted
respondent's offer of reinstatement and Telfer is now working for respondent even though he had stated at the hearing held on March 6 that he
did not want to be reinstated at respondent's mine.
I stated at the hearing that the unique circumstances described
above might qualify Telfer to back pay for the period between the time
he lost his position with Wolf Creek on July 11 and the time he was reinstated by respondent on September 29. Respondent's counsel argued that
respondent's back-pay obligation ought to be terminated on March 6, 1981,
for any miner who testified on that day that he did not want to be reinstated. Respondent argued that that was especially the appropriate procedure in this proceeding because it was not respondent's fault that it
has taken the complainants frpm March 17, 1981, when my bench decision
was mailed to the parties, to November 17, 1981, for the hearing to be
rescheduled at which complainants introduced the facts required for computation of back pay.
Counsel for complainants argued that Telfer should be paid for the
time between his loss of the job at Wolf Creek and the time he was reinstated by respondent because Telfer was among those miners who had from
the beginning supplied him with information for computation of back pay.
Therefore, Telfer was not.responsible for the delay in providing information pertaining to calculation of back pay (Tr. 1010).
As I indicated in the first part of this decision, complainants are
entitled to back pay up to the time they were offered reinstatement which,
in Telfer's case, was September 29, 1981 (Tr. 1007). Consequently,
Telfer is entitled· to back pay from May 10, 1980, to October 31, 1980,
when he began working for Wolf Creek at a rate of $98.00 per day. Telfer

320

is also entitled to back pay from July 11, 1981, when he was laid off by
Wolf Creek to September 29, 1981, when he was reinstated by r~spondent.
The rate of back pay is $79.20 per day from May 10, 1980, to September 1,
1980, and $84.80 ($79.20 + pay increase of $5.60) per day for all times
after September 1, 1980.
3.

Clyde Smith, Jr.

Clyde Smith, Jr., was discharged by respondent on May 10, 1980 (Tr.
1023). Between May 10, 1980, and November 3, 1980, he applied for work at
Tab Coal Company, Triple J Coal Company, Loftis Coal Company, and Doug
Chapman. He went to those places several times and all of them advised
him that they were not hiring any miners at that time. Finally, Smith
obtained a job with Robert Coal Company on November 3, 1980, and he has
been employed by Robert Coal Company since that time, although at the time
of the hearing, he was not working because of a back injury (Tr. 1025;
1030-1032).
Counsel for complainants stated that Smith had not only been prompt
about providing him with information about Smith s own efforts to find
work, but had also been helpful in assisting him in obtaining information
from the other complainants (Tr. 1023). Consequently, no reductions in
back pay would be appropriate in Smith's case because he has in no way
contributed to the
in providing the facts needed for computing back
pay.
Smith was paid at the rate of $73.20 per day when he worked for
respondent. Robert Coal Company paid Smith from $76.20 to $79.20 per day
(Tr. 1024). Therefore, Smith is not entitled to receive any differential
between the rate he was paid by respondent and the rate he was paid by
Robert Coal Company, but he is entitled to back pay for the period from
May 10, 1980, when he was discharged, to November 3, 1980, when he began
working for Robert Coal Company. The rate for that period is $73.20 per
day from May 10, 1980, to September 1, 1980, and $78.80 ($73.20 + pay
increase of $5.60) per day from September 1, 1980, to November 3, 1980.
4.

Monroe Mullins

Monroe Mullins was discharged by respondent on May 10, 1980. At the
time of his discharge, respondent was paying Mullins $79.20 per day
(Tr. 1035). Mullins asked for work at Loftis Coal Company and Teresa
Coal Company. He only looked for work at those two places because they
are located in Kentucky and Mullins is from Virginia. Mullins wanted to
find work in Virginia and moved back to Virginia about July 5, 1980.
Mullins was given a job in Virginia with Dyna-Carb Coal Company on July 10,
1980, at a pay rate of $75.00 per day (Tr. 1035-1036). Mullins worked for
Dyna-Carb up to about November 25, 1980 (Tr. 1037). Mullins was able to
obtain a job working for Tab Coal Company. Mullins continued to work for
Tab Coal Company up to March 6, 1981, when the first hearing in this case
was held. He testified on March 6 that he would like to be reinstated to

321

his job at respondent's mine because on March 6 he did not have a job that
paid as much as respondent was paying him when he was discharged (Tr. 1051).
Although Mullins could have continued to work for Tab Coal up to the
beginning of the UMWA strike, Mullins elected to terminate his job with Tab
Coal on Monday, March 9, 1980, because he knew that the UMWA strike was set
to begin toward the end of March and Mullins had already decided that h~
wanted to move back to Virginia. Mullins next found a job on June 20, 1981,
when he began to work for Dotson Coal Company (Tr. 1043). He transferred to
Smiley Coal Company when Smiley offered him $5 more per day than Dotson was
paying him. Mullins worked for Smiley until that company went out of business.
Thereafter Mullins obtained a job with T.J.P.E. Coal Company at a rate of
$80.00 per day and Mullins was still working for T.J.P.E. Coal Company when
respondent offered to reinstate him on or about September 14, 1981. Mullins
declined respondent's offer of a job because he liked working for T.J.P.E.
more than he liked working for respondent (Tr. 1045). Mullins testified
that he lost no working time between his jobs at Dotson, Smiley, and T.J.P.E.
(Tr. 1043).
Mullins did not have a job for a short period of time between the time
that he left Dyna-Garb and his obtaining work with Tab Coal Company on
January 1, 1981. At the hearing held on November 17, 1981, Mullins did not
know when he stopped working for Dyna-Carb. I asked Mullins to obtain that
information and submit it to me after the hearing; but respondentvs counsel
objected to my giving Mullins any additional time to obtain that information
since he had already been given a period of 8 months between the two hearings
held in this proceeding within which to obtain all dates and places where he
had worked (Tr. 1057). Mullins' own counsel testified that Mullins had been
sent a letter a long time prior to the hearing requesting him to obtain his
dates and places of employment (Tr. 1046). In the first part of this order,
I ruled that respondent would not be required to reimburse complainants for
back pay when their testimony shows that they had contributed to undue delay
by failing to provide information in a timely manner. In keeping with that
ruling, respondent will not be required to provide back pay for the time
lost by Mullins between the termination of his job with Dyna-Garb and the
commencement of his job with Tab Coal Company. Also, since Mullins voluntarily stopped working for Tab Coal Company on March 9, 1981, before the
strike began, he will not be given back pay for the period from March 9,
1981, to April 9, 1981, when respondent's mine was closed by the strike.
Inasmuch as Mullins' voluntary act of quitting his job at Tab Coal Company
also prevented him from having a job after the strike ended on June 8, 1981,
respondent will not be required to provide Mullins with back pay for the
period from June 8, 1981, when respondent's mine was reopened after the
strike, to June 20, 1981, when Mullins began to work for Dotson Coal Company (Tr. 1050). Of course, no complainant will receive back pay for the
period from April 9, 1981, to June 8, 1981, because respondent's mine was
closed for that period on account of the strike (Tr. 1054).
Mullins was being paid $79.20 per day by respondent at the time of his
discharge on May 10, 1980. Mullins was pafd only $75.00 per day when he
worked for Dyna-Carb, but Mullins did not know when he stopped working for

322

Dyna-Carb. Mullins also claimed that he began working for Smiley Coal Company because it offered to pay him $5 more per day than the $75.00 per day
which Dotson was paying him (Tr. 1040). Later Mullins testified that
Smiley only paid him $75.00 per day (Tr. 1047). Additionally, Mullins
first testified that his job with Dotson Coal Company lasted for 3 months
after he began working for Dotson on June 20, 1981 (Tr. 1040). That would
mean that Mullins worked for Dotson until September 20, 1981. Mullins also
testified that he started working for Smiley after leaving Dotson and that
Smiley went out of business about the last of July (Tr. 1040). It would
have been impossible for Mullins to have worked for Dotson until
tember
and then to have worked for a company which went out of business toward the
end of July. In view of Mullins' inability to give the dates when his
employment with Dyna-Carb ended and his employment with Smiley began and
ended, respondent will not be required to pay Mullins the differential of
$4.20 between his rate of pay of $79.20 received from respondent and the
pay of $75.00 per
paid by both Dyna-Carb and Dotson because it is impossible to determine on the basis of Mullins' testimony when he ceased to be
paid $75.00 and when he began to be paid $80.00 per day. The foregoing
ruling is consistent with my prior holding that respondent should not be
required to reimburse complainants when
are unable to provide the
names of the companies for which they worked, the dates they
to work
and stopped working, and their rates of pay even though they had been given
a period of 8 months within which to prepare such information.
Based on the rulings made above, respondent is required to provide
Mullins with back pay at the rate of $79.20 per day for the
from
his discharge on May 10, 1980, to July 10, 1980, when Mullins
working
for Dyna-Carb Coal Company.
5.

James R. Clevenger

James R. Clevenger was discharged by respondent on May 10, 1980, and
at the time of his discharge, respondent was paying him $79.20 per day
(Tr. 1061-1062). Clevenger started drawing unemployment compensation a
short time after his discharge and continued to draw it for about 16 months
(Tr. 1070; 1077). Clevenger testified that he tried to obtain work at all
places which were within a reasonable distance of his home in Hatfield,
Kentucky (Tr. 1073). He applied for work at Big Hill Coal Corporation on
July 21, 1980, and on August 4, 1980, he asked Loftis Coal Company for work.
He went to Barbar Kay Coal Company to seek a job on August 19, 1980, and
August 27, 1980. He asked Robert Coal Company for a job on September 8,
1980. He sought work with Preece Coal Company on October 17, 1980, and on
July 24, 1980, he tried to get a job in the auto body shop of Hubbard Motor
Company. He tried to find work at J & H Coal Company on November 10, 1980,
and with Big Hill Coal Corporation on December 1, 1980. About April 1981,
he tried to get a job driving a truck for Roy Francis (Tr • .1063-1065).
Clevenger did not try to find work very of ten between April 1981 and
September 14, 1981, when he accepted respondent's offer to reinstate him
at respondent's mine (Tr. 1064). Clevenger said that he did not have the
gas to drive around looking for work in 1981, but that other people were

323

looking for a job for him and would have advised him of any openings if
they had occurred (Tr. 1064; 1072). Clevenger said that although he was
an electrician, he was not a certified electrician and since most mines
were only interested in hiring certified electricians, it was difficult
for him to find work (Tr. 1070).
Clevenger testified that he believed he had tried very hard to find
work and that he would rather have had a job than to have been drawing
unemployment compensation because he could earn the amount of an unemployment check by working only 2 days at a coal mine (Tr. 1075). There is
no doubt but that Clevenger had an economic incentive to earn money
because he is separated from his wife and is supposed to provide $250
per month for the support of two children (Tr. 1078). During 1980, he
only sent his children about $600 and he apparently accomplished that
primarily by selling his car, The only transportation he had for getting
to and from work is a 1947 model truck. He had to borrow $100 from his
brothers in order to replace the engine in the truck before he could
drive it to and from work (Tr. 1080-1081).
I find that Clevenger made a reasonable effort to obtain work after
his discharge on May 10, 1980. There is nothing in the record to show
that he is responsible in any way for the delay which occurred between
the first and second hearings in this proceeding. Therefore, respondent
should pay Clevenger back pay from the date of his discharge on May 10,
1980, to the date of his reinstatement on September 14, 1981, at the
rate of $79.20 per day for the period from May 10, 1980, to September ,
1980, and at the rate of $84.80 ($79.20 +pay increase of $5.60) per day
for the period from September 1, 1980, to September 14, 1981, exclusive
of the period from April 9, 1981, to June 8, 1981, when respondent's
mine was closed on account of the strike (Tr. 1054; 1165).
6.

Jerry Lee Smith

Jerry Lee Smith was discharged by respondent on May 10, 1980, and
respondent was paying Smith $79.20 per day at the time of his discharge
(Tr. 1083-1084). Smith first obtained a job with Big Hill Coal Corporation
on September 24, 1980, but he was laid off from that job only 3 days
later. His salary for those three days was greater than the amount he
was receiving when he was working for respondent (Exh. 20; Tr. 1091).
Smith next obtained a job with Robert Coal Company on October 12, 1980, and
Smith worked for Robert Coal until March 14, 1981, when he told management
that he no longer wished to work for them because the mine released
methane (Tr. 1093; 1096). Smith did not obtain any other employment
between March 14, 1981, and September 14, 1981, when he accepted respondent's
offer of reinstatement. Smith testified that he did seek work during
the months of May, June, and July with Loftis Coal Company, Preece Coal
Company, Triple J Coal Company, and Thacker Energy (Tr. 1088-1089).
Smith brought notes from at least three individuals stating that he had
been to the aforementioned companies' places of business to ask for work
(Exhs. 22, 23, and 24).

324

Smith's testimony shows that he is entitled to receive back pay for
the periods of unemployment which occurred after his discharge. The fact
that he voluntarily stopped working for Robert Coal Company because he was
afraid to work in a mine known to release methane could -possibly be considered as a reason for disallowing back pay, but I believe that he should
be paid for the period between his decision to stop working in a gassy mine
because he did try to find work in nongassy mines in the interim between
his leaving Robert Coal Company and his reinstatement at respondent's mine.
Under the Act, an unlawfully discharged miner has a right to be made
"whole" to the extent possible. Smith was working in respondent's nongassy mine up to the time of his discharge on May 10, 1980. He should not
be denied back pay because he chose to stop working in a mine which was
more hazardous than respondent's mine. Therefore, I find that Smith should
be provided back pay for the period between his departure from Robert Coal
Company to the time of his reinstatement at respondent's mine.
Consistent with the facts given above and the ruling made above,
Jerry Lee Smith should be awarded back pay at the rate of $79.20 per day
from May 10, 1980, to September 1, 1980. He should be awarded back pay at
the rate of $84.80 ($79.20 +pay increase of $5.60) per day from
September 1, 1980, to September 24, 1980, when he began working for Big
Hill Coal Corporation. He only worked through September 26, 1980, for Big
Hill before he was laid off. He should, therefore, be awarded back pay at·
the rate of $84.80 per day from September 29, 1980, to October 12, 1980
when he began working for Robert Coal Company. Smith stopped working for
Robert Coal Company on March 14, 1981. Consequently, he should be awarded
back pay at the rate of $84.80 per day from March 16, 1981, to September 14,
1981, exclusive of the period from April 9, 1981, to June 8, 1981, when the
mine was closed because of the strike. Smith is not entitled to be paid
any differential between the rate of pay he received at respondent's mine
and the rate he was paid by his other employers because all other employers
either paid him the same wages he received from respondent, or more than he
was receiving when he worked at respondent's mine (Tr. 1086).
7.

David May

David May was discharged by respondent on May 10, 1980, and at that
time he was being paid $68.56 per day by respondent (Tr. 1111; 1113). He
tried to obtain work in May 1980 with Tab Coal Company. He asked for work
with V & M Coal Company in October 1980 (Tr. 1112). He asked for work
with Robert Coal Company in October 1980 (Tr. 1112). He also tried to get
a job with V & M Coal Company. Although he was unsure about the date of
his filing of an application for work with V & M Coal Company, he introduced
as Exhibit 27 a note signed by Lorie Chafin stating that he had "put in an
application here approximately 3 weeks ago" (Tr. 1119). May was finally
able to get a job with Dot Coal Energy on January 9, 1981, and May was
still working for Dot Energy on November 17, 1981, when he testified in
this proceeding. May declined respondent's offer of reinstatement in
September of 1981 because Dot Energy has paid him wages at a higher rate
than he was paid by respondent (Tr. 1114-1115).

325

Based on the evidence summarized above, I find that David May is
entitled to back pay at the rate of $68.56 from May 10, 1980, to September 1, 1980, and to back pay at the rate of $74.16 ($68.56 + pay increase of $5.60) from September 1, 1980, to January 9, 1981, when he began
to work for Dot Coal Energy.
8.

H. K. Tilley, Jr.

H. K. Tilley, Jr., was discharged by respondent on May 10, 1980
(Tr. 1129) at which time respondent was paying him $73.20 per day (Tr. 1137).
Tilley tried to obtain a job with Northern Coal Company on May 28, 1980 (Exh.
29; Tr. 1133). He asked for work at Stemco on June 14, 1980 (Exh. 30;
Tr. 1134). He inquired about work with Cooks Trucking in June 1980 (Tr.
1138). He sought work with LMB River Coal Company on July 15, 1980 (Exh.
31; Tr. 1135). He tried to get a job with T & B Tire Sales on August 20.
1980 (Tr. 1134). He also asked for a job at Ratliff Trucking, Inc., on
November 12, 1980 (Exh. 33; Tr. 1135). Tilley introduced as Exhibits 28
through 33 various notes stating that he had made inquiries about obtaining
work at the places mentioned above; additionally, Tilley testified that he
made about six trips to each of the aforementioned places in an effort to
find work (Tr. 1132).
Tilley did not obtain a job until June 11, 1981, when he began to
work for LMB River Coal Company. Even though Tilley was working for LMB
River Coal Company when respondent offered to reinstate him at respondent's
mine, Tilley accepted respondent 1 s offer and began working again for respondent on September 14, 1981 (Tr. 1159). Tilley returned to work at
respondent's mine because LMB River Coal was considering closing its mine
and because LMB River Coal's mine was "low" coal which had caused Tilley
to injure his wrist (Tr. 1139). When Tilley began working for LMB River
Coal, he was paid wages at the rate of $80.00 per day; therefore, he is
not entitled to be paid any differential between the amount he earned at
respondent's mine and the amount he was paid by LMB River Coal (Tr. 1138).
Tilley injured his wrist again shortly after he returned to work for respondent and, at the time of the hearing on November 17, 1981, he had been
off from work because of his injured wrist and because his teeth were
abscessed and were giving him a great deal of trouble (Tr. 1157-1158).
Respondent's counsel cross-examined Tilley at some length, as he did
several of the witnesses, about their injuries and lack of motivation in
obtaining jobs sooner than they did (Tr. 1141-1160). I find that Tilley's
testimony is sufficiently credible to show that he made a reasonable and
satisfactory effort to find work after he was discharged by respondent.
The description which he provided of the type of injury he suffered and
the kinds of treatment he has been given support a finding that he did not
feign injuries just to be off from work (Tr. 1156-1157). The fact that he
was out of work for well over a year with no income other than unemployment
compensation would explain why he was unable to pay a dentist to stop the
deterioration of his teeth (Tr. 1157-1158). During the period of his unemployment, he lived with his mother-in-law part of the time. It was
necessary for him to sell his trailer for $1,000 (Tr. 1136). None of the
aforesaid difficulties would be a reason to hold that Tilley should be
denied reimbursement for the pay he lost as a result of his discharge.

326

Based on the facts summarized above, Tilley should be awarded back
pay at the rate of $73.20 per day from May 10, 1980, to September 1, 1980,
and should be awarded back pay at the rate of $78.80 ($73.20 + pay increase of $5.60) per day from September 1, 1980, to June 11, 1981, when he
obtained a job with LMB River Coal Company, exclusive of the period from
April 9, 1981, to June 8, 1981, when respondent's mine was closed because
of the strike (Tr. 1054; 1165). As stated above, no differential need be
paid because his wages with LMB River Coal were higher than the amount he
would have received had he continued working for respondent, even if one
takes into account respondent's pay increase of September 1, 1980.
9.

James Thacker

Counsel for complainants stated at the hearing that James Thacker
had attended a meeting on Monday, November 16, 1981, the day prior to the
day of reconvening the hearing in this proceeding, and that Thacker had
stated on Monday that he could not be away from work any longer than Monday.
Thacker was, therefore, not present to testify in support of his request
for payment of back wages (Tr. 1160). Complainants 9 counsel also explained
that Thacker had obtained work after the discharge on May 10, 1980, more
quickly than any of the other complainants. Thacker, in fact, worked for
Teresa Coal Company between the time he was first discharged on April 10,
1980, and the date of May 1, 1980, when all of complainants were offered
jobs after the first discharge (Tr. 1163). Complainantsv counsel further
stated that a calculation had been made which showed that Thacker was
entitled to 25 days of back pay (Tr. 1162-1163).
Based on the facts provided by complainants' counsel, Thacker would
be entitled to back pay at the rate of $73.20 (Tr. 1163) for the period
from May 10, 1980, to June 9, 1980, when Thacker began to work for Triple
J Coal Company (Tr. 1161). There were 20 working days between May 10,
1980, and June 9, 1980. Therefore, the remaining 5 working days for which
Thacker is entitled to receive back pay occurred between the first discharge on April 10, 1980, and the second discharge on May 10, 1980. As
I have previously explained in this order, the parties entered into a
stipulation as to the amount of back pay to which each complainant is
entitled for the period from April 10, 1980, to May 10, 1980 (Exh. 4).
Under that stipulation, Thacker is said to be entitled to back pay for a
period of 14-3/4 days, instead of the 5 days specified by complainants'
counsel. The stipulation must have been negotiated before counse~ for the
parties were aware of the exact facts with respect to Thacker. Therefore,
the parties are at liberty to amend the number of hours for which Thacker
is entitled to be paid between April 10 and May 10, 1980, or they may
deduct days from the 20 days between May 10 and June 9, 1980, in determining the amount of back pay to which Thacker is entitled. In no event
should respondent pay Thacker for more than 25 days of back pay because
some of the other complainants have had their back pay reduced for failure
to produce the dates on which they began to work, or ceased to work, for
other employers. Since Thacker did not appear at the hearing in support
of his claim for back pay, he must be held to be entitled only to the 25

327

days of back pay which was given in the record by his counsel in his
absence (Tr. 1160-1163).
Award of Interest
Section 105(c)(2) of the Act provides that any miner who has been
discharged in violation of section 105(c)(l) is entitled to reinstatement
"* * * to his former position with back pay and interest". The Act does
not specify the rate of interest which should be paid. In my decision
issued in Local Union 1374, District 28, UMWA v. Beatrice Pocahontas Company,
Docket No. VA 80-167-C, issued August 27, 1981, 3 FMSHRC 2004, I ordered
miners to be compensated with interest at a rate of 12 percent per annum.
I based the 12-percent rate on the fact that the Internal Revenue Service
was paying that rate or requiring taxpayers to pay that rate in connection
with overpayment or underpayment of taxes. The miners in this proceeding
were discharged during a period when interest rates were as high as they
have ever been. They would no doubt have had to pay at least 12 percent
interest if they had tried to borrow money during the period of their
unemployment. Therefore, I believe that the back pay which is required to
be awarded in this proceeding should be made at a rate of 12 percent
interest.
The parties may defer computing interest until after my final decision
awarding back pay is issued because interest will continue to run until the
date of payment. The parties may~ therefore, prefer to make the interest
calculations only once, that is, on the date of payment.
WHEREFORE, tor the reasons given above, it is ordered:
(A) Counsel for respondent and counsel for complainants shall confer
for the purpose of cooperating in computing the amount of back pay which
is due to each of the nine complainants, following the procedures which I
have hereinbefore specified for each of the complainants.
(B) Counsel for respondent and counsel for complainants shall supply
me with the amounts due each complainant on or before February 8, 1982.
(C) The amounts due each complainant for the period from April 10,
1980, to May 1, 1980, are those stipulated to by the parties in Exhibit 4,
except for a possible adjustment which counsel may wish to make in awarding
Complainant James Thacker back pay for a period of 25 days.

~a.

rlb.JA

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

328

Distribution:
Darryl A. Stewart, Attorney, Office of the Solicitor, U. S. Department of Labor, Rm. 280, U. S. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Charles E. Lowe, Esq., Attorney for Mullin Creek Coal Company, Inc.,
Lowe, Lowe & Stamper, P. O. Box 69, Pikeville, KY 41501 (Certified
Mail)

329

LOWE & LOWE
ATTOFINEYS AT l.AW
SECONO STREET

PIKEVILLE. KENTUCKY 41501
CHARLES E. LOWE

TELEPHONE 1606)

C+-tA~LES

43?~72'13 & .d32·525.:l
!'>ES. 4:37-7615 & 437-6120

E. t.OWE, _ti::=!.

OFFICE

January 26, 1982

Darryl ;_. Stewart
Office of the Solicitor
280 U. S. Courthouse
801 Broadway
Nashville~ Tennessee 37203
Mr.

RE:

Secretary of Labor, on
behalf of Clyde Jr. Smithv
et al
VSo

J'Vrullin Creek Coal Company~ Inc"
Docket No. KENT 81-17-D

Dear Sir:
The company's bookkeeper has just called me and stated
that your figures in the above captioned matter appears
to be correct, including vacation pay and according to
the ruling of the Administrative Law Judge.
I am enclosing a copy of your calculations with a copy

of this letter to the Judge for compliance with the
Order to have this to him before February 8, 1982.
I remain.

FEDERAL MmE SAFETY AUD
FEB 1 1982

BEAtTH REVIEW COMMISSIOtf
CEL/ar
cc:

Hon. Richard c. Steffey
Administrative Law Judge
Federal Mine Safety and Health Review Commission
2 Skyline, 10th Floor
5203 Leesburg Pike
.
Falls Church, Virginia 22041

330

oOl BROAm1AY

NASHVILLE, TENNESSEE
615-251-5818

37203

SOL/DAS/DCB
January 22, 1982

fEDERAl Mm£ SAJETY Arm
Mr. Charles E. Lowe
Attorney at Law
Post Off ice Box 69
Pikeville, Kentucky
Re~

FEB 1 1982

BEA~TH REVIEW COMMISSION

41501

Secretarv of Laborv on behalf of
Clyde Jr. Smith, et al v. Mullin Creek

Coal Company, Inc.
Docket No. KENT 81-17-D
Dear Mr. Lowe:
In accordance with Judge Steffey 1 s January 12u 1982 Order: please
find stated below our computations of the gross back wages,
exclusive of interest, due to each of the nine complainants
involved in the proceeding stated above.
(1)

Thomas V. Walker

Due 15 days'
Due 21 days'
Due 22 days'
Due 21 days'

pay for May, 1980 at $73.20 per day =
pay for June, 1980 at $73.20 per day =
pay for July, 1980 at $73.20 per day =
pay for August, 1980 at $73.20 per day =

Due 22 days•
Due 23 days'
Due 19 days'
Due 22 days'
Due 21 days'

pay for
pay for
pay for
pay for
pay for

Due
Due
Due
Due
Due
Due
Due
Due

$ 1,098.00
1,537.20
1,610.40
1,537.20

September, 1980 at $78.80 per day =
October, 1980 at $78.80 per day =
November, 1980 at $78.80 per day =
December, 1980 at $78.80 per day =
January, 1981 at $78.80 per day =

1,733.60
1,812.40
1,497.20
1,733.60

20 days' pay for February, 1981 at $6.80 per day =
22 days' pay for March, 1981 at $6.80 per day =
6 days' pay for April, 1981 at $6.80 per day =
0 day's pay for May, 1981 at $0 per day =
16 days' pay for June, 1981 at $6.80 per day =
23 days' pay for July, 1981 at $6.80 per day =
21 days' pay for August, 1981 at $6.80 per day =
9 days' pay for September, 1981 at $6.80 per day =

136.00
149.60

1,654.80

4p .. ao

0

108.80
156.40
142.80
61.20

Subtotal = $15,010.00
Agreed stipulated amount for period April 10, 1980
through May 3, 1980
1,216.95
Total = $16,226.95

331

Page 2

(2)

John R. Telfer

Due 15 days'
Due 21 days'
Due 22 days'
Due 21 days'

pay for May, 1980 at $79.20 per day =
pay for June, 1980
$79.20 per day =
pay for July, 1980 at $79.20 per day =
pay for August, 1980 at $79.20 per day =

$ 1,188.00

1,663.20
1,742.40
1,663.20

Due 22 days' pay for September, 1980 at $84~80 per day=
Due 22 daysi pay for October, 1980 at $84.80 per day =

1,865.60
1,865.60_

Due 15 days' pay for Julyv 1981 at $84.80 per
=
Due 21 days' pay for August, 1~81 at $84.80 per aay =
Due 21 days' pay for September, 1981 at $84.80
r day

=

1,272.00
lf780.80
1,780.80

Subtotal

=

Agreed stipulated amount for period April 10 8
through May l, 1980
(3)

80
1$158.30

Total

= $15,979.90

pay for May, 1980 at $73.20 per day =
pay
June, 1980 at $73.20 per day =
pay for July, 1980 at $73.20 per day =
pay for August, 1980 at $73.20 per day =

$ lu098o00
lv537o20

Clvde Smith, Jr.

Due 15 days'
Due 21 days'
Due 22 days 1
Due 21 days'

Due 22 days' pay for September, 1980 at $78.80 per day=
Due 23 days' pay for October, 1980 at $78.80 per day=
Due 1 day's pay for November, 1980 at $78.80· per day =

1,610.40
1,537.20
1,733.60
1,812.40
78.80

subtotal = $ 9,407.60
Agreed stipulated amount for period April 10, 1980
1,070.55
through May 1, 1980
Total = $10,478.15
(4)

James R. Clevenqer

Due 15 days'
Due 21 days'
Due 22 days'
Due 21 days'

pay for
pay for
pay for
pay for

May, 1980 at $79.20 per day =
June, 1980 at $79.20 per day =
July, 1980 at $79.20 per day =
August, 1980 at $79.20 per day =

Due 22 days' pay for September, 1980 at $84.80 per day=
Due 23 days' pay for October, 1980 at $84.80 per day=
Due 19 days' pay for November, 1980 at $84.80 per day=
Due 22 days' pay for December, 1980 at $84.80 per day=
Due 21 days' pay for. January, 1981 at $84.80 per day =
Due 20 days' pay for February, 1981 a~ $84.80 per day =
Due 22 days' pay for March, 1981 at $84.80 per day =
Due 6 days' pay for April, 1981 at $84.80 per day =
Due 0 day's pay for May, 1981 at $0 per day =

332

$ 1,188.00

1,663.20
1,742.40
1,663.20
1,865.60
1,950.40
1,611.20
1,865.60
1,780.80
1,696.00
1,865.60
508.80
0

Pc:ge 3
James R. Clevenger - continued
Due 16 days' pay for
Due 23 days' pay for
Due 21 days 1 pay for
Due 9 days' pay for

June, 1981 at $84.80 per day =
July, 1981 at $84.80 p~r day =
August-, 1981 at $84. 80 per day =
September, 1981 at $84.80 per day=

1,356.80
1,950.40
1,780.80
763.20

Subtotal = $25,252.00
Agreed stipulated amount for period April 10, 1980
through May 1, 1980
Total

(5)

=

Jerrv L. Smith

Due 15 daysi pay for Mayu 1980 at $79.20 per day =

$ lql88.00
1,663.20
lu742.40
1,663.20

Due 21 daysG pay for June, 1980 at $79.20 per day =
Due 22 days' pay for Julyu 1980 at $79.20 per day =
Due 21 days' pay for August, 1980 at $79.20 per day =
Due 19 days 1 pay
Due 8 days 1 pay
Due 12 days' pay
Due 6 days 1 pay
Due 0 day's pay
Due 16 days' pay
Due 23 days' pay
Due 21 days' pay
Due 9 days' pay

for
for
for
for
for
for
for
for
for

Septernberu 1980 at $84.80 per day=
October, 1980 at $84.80 per day=
Marchu 1981 at $84.80 per day =
April, 1981 at $84.80 per day =
May, 1981 at $0·per day =
June, 1981 at $84.80 per day =
July, 1981 at $84.80 per day =
August, 1981 at $84.80 per day =
September, 1981 at $84.80 per day=
Subtotal

1,611.20
678.40
1,017.60
508080
0
1,356.80
1,950.40
1,780.80
763.20

= $15,924.00

Agreed stipulated amount for period April 10, 1980
through May 1, 1980

1,158.30

Total=
(6)

lrl58.30
$26,410.30

$17,082.30

David May

Due 15 days' pay for May, 1980 at $68.56 per day =
Due 21 days' pay for June, 1980 at $68.56 per day =

$ 1,028.40
1,439.76
1,508.32
1,439.76

Due 22 days' pay for July, 1980 at $68.56 per day =
Due 21 days• pay for August, 1980 at $58.56 per day =

Due 22 days' pay for September, 1980 at $74.16 per day =
Due 23 days' pay for October, 1980 at $74.16 per day=
Due 19 days' pay for November, 1980 at $74.16 per day =

Due 22 days' pay for December, 1980 at $74.16 per day=
Due 6 days' pay for January, 1981 at $74.16 per day =

1,631.52
1,705.68
1,409.04•
1,631.52
444.96

Subtotal

= $12,238.96

Agreed stipulated amount for period April 10, 1980
through May 1, 1980
Total

= $13,241.65

333

1,002.69

F'eigs

4

(7)

H. K. Tilley, Jr.

May, 1980 at $73.20 per day =
June, 1980 at "$ 7 3 • 2 0 per day =
July, 1980 at $73.20 per day =
August, 1980 at $73.20 per day =

Due 15 days'
Due 21 days•
Due 22 days'
Due 21 days'

pay for
pay for
pay for
pay for

Due 22 days'
Due 23 days'
Due 19 days'
Due 22 days'
Due 21 days'
Due 20 days'
Due 22 days'
Due 6 days»
Due 0 day 1 s
Due 2 days'

pay for September, 1980 at $78.80 per day =
pay for October, 1980 at $78.80 per day =
pay for November, 1980 at $78.80 per day =
pay for December, 1980 at $78.80 per-oay =
pay for January, 1981 at $78.80 per day =
pay for February, 1981 at $78.80 per day =
pay for March, 1981 at $78.80 per day =
pay for April, 1981 at $78.80 per day =
pay for Mayu 1981 at $78.80 per day =
pay for Juneu 1981 at $78.80 per day =

$ 1,098.00

1,537.20
1,610.40
1,537.20
1,733.60
1,812.40
1,497.20
1,733.60
1;654.80
1 9 576.00
1?733.60
472.80
0

157.60

Subtotal = $18,154.40
Agreed stipulated amount for period April lOu 1980
through May 1, 1980
1£070.55
Total = $19v224o95
( 8)

Monroe Mullins

Due 15 days' pay for May, 1980 at $79.20 per day =
Due 21 days' pay for June, 1980 at $79.20 per day =
Due 6 days' pav for July, 1980 at $79.20 per day =
-

$ 1,188.00
1,663.20
475.20

J.

Subtotal = $ 3,326040
Agreed st~pulated amount for period April 10, 1980
through May 1, 1980
Total =
(9)

1,158.30

$ 4,484.70

James Thacker

Due 83 hours' pay for May 10, 1980 to June 9, 1980
at $9.15 per hour

=

Agreed stipulated amount for period April 10, 1980
through May 1, 1980
=
Total =

$

759.45

1,07_0.55
$1,830.00

If your computations are not the same as ours, please call me
here in Nashville at 615-251-5818 so that we may discuss our
differences prior to the required February 8, 1982 submission to
Judge Steffey.

334

Very truly yours,
RALPH D. YORK
Acting Associate Regional Solicitor

335

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

CONSOLIDATION COAL COMPANY,
Contestant
v.

1FEB 8 1982

Contest of Citation
Docket No. WEVA 81-222-R
Citation No. 805557; 12/30/80

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

Blacksville Noo 2 Mine

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

Civil Penalty Proceeding
Docket No, WEVA 81-361
A/O No, 46-01968-03076
Blacksville No. 2 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION AND ORDER
The captioned review-penalty proceeding is before me on reassignment
from Judge Cook who held a consolided hearing in McHenry, Maryland on
July 28, 1981.
There is no genuine dispute as to any of the material facts. 1/
The dispositive issue is whether as a matter of law 30 C.F.R. 70.20l(d)
:!:,/ mandates corrective action dust sampling on each production shift
during the time fixed for abatement.
1/ The operator's claim that inculpatory statements to Inspector Ryan
by the operator's safety superintendent were inadmissible hearsay is
without merit. FRE 80l(d)(2)(C), (D). Under the Federal Rules of
Evidence statements made to a declarant by an authorized agent of a
party acting within the scope of his employment are excluded from the
category of hearsay. As the Advisory Committee Note shows no guarantee
of trustworthiness is required in the case of such an admission, The
la.ck of merit in the objection was underscored when counsel for the
operator chose to elicit the same inculpatory information from the
operator's dust foreman, Mr. Reese (Tr. 67). This was later confirmed
in questioning by the trial judge (Tr. 81).
].:./

The standard provides:
"During the time for abatement fixed in a citation for violation of
[the respirable dust standards], the operator shall take corrective
action to lower the concentration of respirable dust to within the
permissible concentration and then sample each production shift until
five valid respirable dust samples are taken."

336

The operator contends that the referent of the demonstrative
pronoun "then" is any time during the time fixed for abatement. Where,
as in this case, the time fixed for abatement was some 32 days, the
operator's interpretation would permit several production shifts to be
run without sampling prior to the time fixed for abatement.
Counsel for MSHA claims the proper interpretation is the "very
first production shift" following the accomplishment of corrective
adjustments to the operator's dust control system. The operator
concedes it did not begin sampling until the second production shift
after corrective action was taken.
Both interpretations are at variance with the statutory directive
that underlies the improved standard. The standard issued in April 1980
is a paraphrase of section 104(f) of the Mine Safety Law, which is
identical with old section 104(i) of the Coal Act, 30 U.S.C. § 814(£), 1/
The statute provides that after a notice of violation of the respirable
dust standard issues "fixing a reasonable time for abatement of the
violation," the operator "[d]uring such time," shall "cause samples
, •• to be taken of the affected area during each production shift. u
Under the plain and unambiguous language of the statute it is clear that
ftduring the time fixed for abatement," here the 32 days, the operator
was obligated to take dust samples "during each production shift" and
not just on the production shifts that came after corrective action was
taken.
Since it would do violence to the Congressional intent and to
established canons of construction of remedial legislation to construe
the improved standard more narrowly than the statute, I find the phrase
"and then" as used in the improved standard means "during the time fixed
for abatement." 4/ For these reasons, I conclude the failure to sample
on the first production shift after corrective action was taken was a
violation of 30 C.F.R. 70.20l(d).
Because the operator failed to sample during only one production
shift after compliance was achieved the miners were not exposed to any

11 This provides:
"If, based upon samples taken, analyzed, and recorded pursuant to
section 202(a), • • • the applicable limit on the concentration of
respirable dust required to be maintained under this Act is exceeded and
thereby violated, the Secretary or hi.s authorized representative shall
issue a citation fixing a reasonable ·time for the abatement of the
violation. During such time, the operator of the mine shall cause
samples described in section 202(a) to be taken of the affected area
during each production shift • • • • "

!!../

Under section 10l{a)(9), 30 U.S.C. § 81l(a)(9), no improved standard
can reduce the protection afforded miners by a statutory standard.

337

significant health hazard. On the other hand, the operator is chargeable with knowledge that sampling was required on each production shift
during the period fixed for abatement. Any claimed ambiguity in the
improved standard is resolved by reference to the statutory standard in
effect since 1970. ·That ignorance of the law is no defense applies
whether the law be a statute or a duly promulgated and published
regulation. United States v. International Minerals & Chemical Corp.
402 U.S. 558, 563 (1971).

•

For these reasons, and after considering the other statutory
criteria, I conclude the amount of the penalty warranted for the violation found is $150.00.
Accordingly, it is ORDERED that the operator pay the penalty
assessed, $150.00, on or before Friday, February 26, 1982, and that
subject to payment the captioned matt/ be DISMISSED.
I

/'

/!

.
seph B. Kenne y
Administrative Law
Distribution:
Samuel Skeen, Jr., Esq., Consolidation Coal Company, 1800 Washington
Road, Pittsburgh, PA 15241 (Certified Mail)
David E. Street, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market St., Philadelphia, PA 19104 (Certified Mail)

338

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
SKYLINE TOWERS NO. 2, lOTH FLOOR
5205 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

CONSOLIDATION COAL COMPANY,
Contestant

FEB 9 J982

Contest of Citation and Order
Docket No. WEVA 82-11-R
Citation No. 858823; 9/10/81

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

Docket No. WEVA 82-12-R
Order No. 8588 23; 9/10/81
Blacksville No. 2 Mine
DECISIONS

Appearances:

Jerry F. Palmer and Juanita M. Littlejohn, Esquires,
Pittsburgh, Pennsylvania, for the Contestant; Howard
K. Agran, Attorney, U.S. Department of Labor, Philadelphia, Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings
J

These consolidated proceedings concern two contests filed by the
contestant on October 13, 1981, pursuant to sections 104(d) and 107(e)
of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et~·
challenging the propriety and legality of a section 104(a) citation and
a section 107(a) imminent danger withdrawal order issued by Federal
Mine Inspector Cecil M. Branhan on September 10, 1981, after inspection
of the subject mine.
Respondent filed timely answers in these contests asserting that
the citation and order were properly issued, and pursuant to notice served
on the parties, a hearing was held in Washington, Pennsylvania on January 12,
1982, and the parties appeared and participated fully therein.
Discussion
The section 107(a) - 104(a) citation-order issued by inspector Branham
on September 10, 1981, no. 858823, states the following alleged "condition
or practice":
In the G Bleeders Section (I.D. 016), 2.6 volume per
centum of methane was being liberated in the face of
the No. 5 entry (94 feet inby survey station 5698).

339

The current of air in this entry was not sufficient
to dilute, render harmless, or carry away this methane.
Tests were made 12 inches from the rib, 13 inches from
the roof, and 33 inches from the face and air samples
were taken.
Inspector Branham cited a violation of mandatory safety standard
30 CFR 75.301, and also made a finding that the alleged violation was
"significant and substantial. 11 He also found that the area affected by
his order was "the No. 5 entry of the G Bleeder section from survey station
5698 to the face (94 feet). 11
Stipulations
The parties stipulated to the following:
lo

The Blacksville No. 2 Mine is owned and operated by contestant, and is subject to the provisions of the Acto

2o

The presiding Administrative Law Judge has jurisdiction
to hear and decide these cases.

3.

MSHA Inspector Cecil M. Branham is a designated authorized
representative of the Secretary of Labor and properly served
the citation in question on a representative of the contestant
in accordance with sections 104 and 107 of the Act,

4.

A true and correct copy of the citation-order may be admitted
as part of the record in this case.

Testimony and evidence presented by the respondent MSHA.
MSHA Inspector Cecil M. Branham testified as to his background and
experience and confirmed that he issued the citation in question after conducting
a regular inspection at the mine on September 10, 1981. He identified a copy
of exhibit C-1 as a sketch of the five entries on the G bleeder area in
question and he testified as to what he found during his inspection. He
testified that he took several methane readings with his G-7 methanometer
near the continuous miner parked at the face of the No. 5 entry, as well
as at the face itself after additional roof support was installed at
the face. His readings ranged from 2.2 to 3.0, and he averaged it out to
2.6 and that is what he recorded on the face of the citation.
Inspector Branham testified that no mining was taking place at the
No. 5 face, the power was off, the continuous miner was not energized,
the fan was not running and no miners were working in the area. He made no
permissibility inspection, took no air readings at the face, but did
take an air reading outby the face and fan location shown on exhibit C-1
and recorded 23,000 cubic feet of air per minute at that location.

340

With regard to the citation asserting a violation of section 75.301,
Mr. Burnham stated that he cited this section because of the fact that
he believed the presence of the amounts of methane which he found indicated
to him that the air and ventilation in the area was not sufficient to
carry away, dilute, or render the methane harmless.
With regard to the imminent danger portion of the citation which he
issued in Docket WEVA 82-12,
·Mr. Burnham stated that he followed
the MSHA policy guidelines set forth in the inspector's manual under section
75.308 which states that the presence of methane in excess of 1.5 may support
an imminent danger withdrawal order. He also indicated that there were no
indications that mine management was aware of the presence of methane
at the face or was doing anything to correct the situation. He confirmed
that the methane condition was corrected within an hour or so by
adjustments made to the line curtain which had been installed along the
left side of the rib. The curtain was tightened up, slack was taken up,
and another plastic curtain was installed across the face near the miner
and this reduced the methane level to the allowable limits.
Mr. Burnham confirmed that the continuous mining machine would deenergize in the event dangerous levels of methane were encountered, but
he saw no indications that the face area had been dangered off. After
recording his methane readings he orally advised inspector escort
Delbert Eddy that the "section was on order". He remained in the area
while the abatement was in process and subsequently terminated the order
at 11:15 a.m. after the methane levels were reduced below the 1.0 level.
He believed that the adjustments made to the line curtain cured the problem.
Contestant's Testimony
Roy D. Stone, testified that he has been employed by the contestant
as a section foreman for the past ten years. He detailed his normal routine
concerning his inspection of the section prior to commencing mining
activities and stated that on September 10, 1981, he examined all five faces
in the G bleeder section and recorded his findings in the fire boss book.
He confirmed that he found methane is the number 5 entry face area and
stated that it amounted to .6 or .7 on the left side of the miner and a
little better than 1 or 1.5 on the right side although he could not take
a methane recording directly at the face because of lack of roof support, he
believed that it probably exceeded the levels which he detected by means
of his methane detector, and it probably reached a level of 2.5 or 3.0.
Mr. Stone stated that when he discovered the presence of methane he
proceeded to take corrective action by means of making adjustments to
the existing ventilation curtain. This was done by tightening up the
curtain which had been sagging from the roof because it was wet and
weighting down the bottom portion which had been "flying around."
Mr. Stone stated that when he detected the presence of methane in the
working place in question he proceeded to take corrective action and he
stated that he advised Mr. Eddy of this fact but did not directly discuss

341

it with inspector Burnham. A spad gun was used to tighten up the ventilation
curtain and additional curtain was hung to dissipate the methane. He
indicated that he was not aware that an innninent danger order had been
placed on the section at the time abatement efforts were going on and
maintained that he was in the process of attempting to adjust the ventilation
to get rid of the methane at the time that the corrective action was
initiated by inspector Burnham.
Findings and Conclusions
At the conclusion of the testimony of Mr. Stone, the parties advised
me that after further joint consideration of the matter a proposed
compromise was reached which would enable the contestant to withdraw
its contests on the basis of the following agreements and stipulation
freely entered by counsel for both sides:

l.

Contestant will withdraw its contest with respect
to that portion of citation 8588823 which alleges
a violation of 30 CFR 75.301, and contestant no
longer desires to contest the issuance of the section
104(a) citation which charges contestant with a
violation of mandatory safety standard 75.301.

2.

Respondent MSHA will vacate that portion of citation
8588823 which alleges that the condition or practice
described by Inspector Burnham constituted imminent
danger under section 107(a) of the Act. Inspector
Burnham will modify the citation to reflect that the
107(a) imminent danger order has been vacated and rescinded.

Respondent's counsel asserted that Inspector Branham is in agreement
with the aforementioned proposed disposition of these cases. After due
consideration of the agreed-upon settlement disposition of these cases,
including a review of the record and arguments presented by the parties, I
conclude and find that the proposed disposition is reasonable and warranted
and it is approved. Accordingly, IT IS ORDERED that:
1.

In docket WEVA 82-11-R, the section 104(a) citation
citing the contestant with a significant and substantial
violation of mandatory safety standard 30 CFR 75.301,
is AFFIRMED, and contestants motion to withdraw its contest
in this regard is granted.

2.

In docket WEVA 82-12-R, the section 107(a) imminent
danger order is rescinded and vacated and respondent will
modify the citation accordingly.

Judge

342

Distribution:
Howard K. Agran, Esq., U.S. Department of Labor, Office of the Solicitor,
3535 Market St., Philadelphia, PA 19104 (Certified Mail)
Jerry Palmer, Esq., Consolidation Coal Co., Consol Plaza, 1800 Washington
Rd., Pittsburgh, PA 15241 (Certified Mail)

343

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

FEB 101982
)
)
)
)
)
)
)
)
)
)
)

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

C F & I STEEL CORPORATION,
Respondent.

CIVIL PENALTY PROCEEDING
DOCKET NO. WEST ~~387
A/C No. 05-00296-03040

MINE: Allen

~~~~~~~~~~~~~~~~~~~-

DECISION AND ORDER
Appearances:
James H. Barkley, Esq., Office of the Solicitor
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Petitioner
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290
For the Respondent
Before: Judge Jon D. Boltz

STATEMENT OF THE CASE
Petitioner filed a petition for assessment of a civil penalty against
the respondent for alleged violation of 30 C.F.R. 75.1003-Z(e), promulgated
by authority of the Federal Mine Safety and Health Let of 1977. The cited
section states in pertinent part "Electrical contact shall be maintained
between the mine track and the frames of off-track mining equipment being
moved in-track •.. "
Respondent denies that there was a violation of the cited regulation.

344

Findings of Fact
1. On March 26, 1980 at respondent's Allen Coal Mine an MSHA
inspector observed a belt drive and motor weighing between 500 and 700
pounds which had been loaded onto a flatcar being pulled by an electric
trolley locomotive.
2. The trolley was powered by a direct current of 250 volts of
electricity which passed from the overhead trolley wire through the
locomotive and then down through the rail as a return conductor.
3. The flatcar was constructed of steel and the belt drive and motor
were mainly constructed of steel, The flatbed surface was 16 to 18
inches above the rails on which it rode, The top of the belt drive and
motor was approximately 6 to 8 inches below the trolley wire,
4, The flatcar had an amount of sand and dirt on it, and some of it
had been scrapped off in order to mount the belt drive and motor onto the
flatcar,
ISSUE
Was electrical contact being maintained between the mine track, the
flatcar, and the belt drive and motor while the locomotive was moving the
equipment?
DISCUSSION
The MSHA inspector testified that in the event contact is made between
the bare trolley wire and the metal casing of the belt drive assembly, the
equipment would become energized. In order to prevent a miner from receiving an electrical shock from an energized piece of equipment on a flat
-car there must be a solid connection of metal-on-metal so that a
continuous ground to the rail is provided.
The flatcar surface had some sand and dirt on it, some of which had
been scrapped off in order to mount the belt drive on the car. The
inspector testified that although the load consisted of metal sitting on
metal, a chain of that type is not acceptable as a continuous connection.
The load might be "sporadically altered" and with the sand and dirt present
on the flat bed rail car, there was no safe guard from electrical contact
to any person who might touch the belt drive when it might be energized,
The cited regulation states, however, that "electrical contact shall
be maintained", and the evidence does not show that this was not being
done. The inspector testified that he was assuming that with "ste,~1-on
steel between the belt drive and the flatcar, and steel-on-steel between
the flatcar and the rails" there was electrical contact. The inspec::or did
not use any means to determine whether there was electrical contact between
the flatcar and the belt drive and motor when the citation was issued. The
inspector stated that an ohmmeter could be used for that purpose.

345

The regulation states that electrical contact shall be maintained, but
it does not state how this is to be accomplished. Although there was
evidence that some sand on the flatcar surface might break the electricRl
contact, there was no evidence that contact was not being maintained at the
time the inspection took place.
The evidence presented leaves me in a position of having to speculate
as to whether the required electrical contact was or was not present at the
time the citation was issued; or, to speculate further, whether or not
electrical contact might be broken if the load became "sporadically
altered". The petitioner must show that electrical contact was not, in
fact, being maintained in order to present a prima facie case. Having
failed to do so, the citation should be vacated.
CONCLUSION OF LAW
·1. The undersigned administrative law judge has jurisdiction over the
parties and subject matter of these proceedings.
2. The petitioner has failed to present a prima facie case showing a
violation of 30 C.F.R. 75.1003-2(e) as alleged in Citation No. 388365.
ORDER
Citation No. 388365 and the civil penalty therefor

Distribution:
James H. Barkley, Esq.
Office of the.Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
Phillip D. Barber, Esq.
Welborn, Dufford, Cook & Brown
1100 United Bank Center
Denver, Colorado 80290

346

is

VACATED,

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

fEB 11 \982

Civil Penalty Proceeding

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

Docket No. YORK 80-101-M
A.c. No. 30-00006-05009

Petitioner
Vo

Ravena Quarry and Plant
ATLANTIC CEMENT COMPANY,

INCw~

Respondent
DECISION
Appearances~

Jithender Rao, Esqw, Office of the Solicitor 9 U.So Department
of Labor, New York, New York~ for Petitioner;
Richard K. Muser, Esq., Clifton, Budd, Burke & DeMaria~
New York, New York, for Respondent.

Before:

Judge Melick

This case is before me upon a petition for ass~~sment of civil penalty
under section llO(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et~-, the "Act," alleging violations of mandatory standards. The general issues are whether Atlantic Cement Company, Inc.
(Atlantic), has violated the regulations as alleged in the petition filed
herein, and, if so, the appropriate civil penalties to be assessed for the
violations. A full evidentiary hearing was held with respect to Citation
No. 206226. A proposal for settlement was submitted with respect to the
remaining citations and was amplified with testimony and docmnentary evidence.
Petitioner also requested to withdraw one citation (Citation No. 205400) for
insufficient evidence and that request was approved on the basis of an
adequate proffer by counsel. Petitioner also requested to withdraw its
determination that the violations in Citation Nos. 205397 and 205399 were
"significant and substantial" as defined in the Act and as interpreted in
Secretary of Labor v. Cement Division, National Gypsum Company, 3 FMSHRC 822
(1981). The Secretary proferred sufficient information from which it could
be determined that such withdrawal was appropriate and the request was
accordingly approved at hearing. The parties agreed in the proposal for
settlement to specific penalty amounts as to the remaining citations and
submitted evidence only concerning the disputed question of whether those
violations were "significant and substantial" under the National Gypsum
standard.

1

34 7

Contested Citation
Citation No. 206226 charges a violation of the mandatory standard at
30 C.F.R. § 56.11-12. That standard provides in relevant part that
"[O]penings above, below, or near travelways through which men or materials
may fall shall be protected by railings, barriers, or covers." The citation
herein specifically alleged in relevant part as follows:
• • • that the storage area for filters at the top of the
steel rack was not provided with a railing or barrier to keep
a person from falling over the edge to the concrete floor
approximately 9 feet below. The supervisor stated that a
person used this area approximately once per week to obtain
filters. This steel rack was located in the storage room.
The essential evidence is undisputed and the factual allegations set
forth in the citation are not contested. Atlantic contends only that those
facts do not support a violation of the cited standard. Alva Shearp an
employee of Atlantic for 19 years, admitted that filters and screens were
indeed stored on the cited platformo He emphasized however that most of
the filters were stored so they could be identified and removed while stand~
ing on a steel safety ladder without the necessity of climbing on to the
cited platform itself. Approximately once a week however~ it would be
necessary for someone to step onto the cited platform to obtain other types
of filters. In the 13 years Shear had worked at Atlantic no one had ever
fallen off the platformo
The issue here presented is whether this storage platform constituted a
"travelway" within the meaning of the cited standardo Inasmuch as i t is
admitted that at least occassionally work.men did in fact walk or travel on
this platform in order to locate and remove at least some of the filters, it
is clear that those portions of the platform over which the men must travel
are "travelways." I am bound by the plain meaning of that term. Since the
"opening" or drop-off along the edges of the platform were not protected by
"railings, barriers, or covers" it is apparent that the violation existed as
charged.
In determining whether the violation was "significant and substantial,"
I must consider whether the violation could be a major cause of a danger to
safety and health and whether there existed a reasonable likelihood that the
hazard contributed to would result in an injury or illness of a reasonably
serious nature. National Gypsum, supra. The evidence in this case shows
that miners could be working on the exposed steel platform some 9 feet above
a concrete floor as often as once a week. These miners were accordingly
exposed with some frequency to a serious hazard. There is little doubt that
if someone fell from that height to the concrete floor, he could suffer
serious if not fatal injuries. Accordingly, I find that the violation herein
was "significant and substantial." For similar reasons, I also find a high
degree of gravity. The hazard was also obvious but apparently no injuries
had ever resulted from the condition. I find accordingly that Atlantic is

348

chargeable with simple negligence in failing to have protected against it.
The condition here cited as with all the conditions listed in this case were
appropriately abated. The operator had received 31 assessed violations in
the previous 24-month period. The plant here at issue worked 700,000 man
hours per year. Under the circumstances I find that a penalty of $200 is
appropriate for this violation.
Partially Contested Citations
Respondent does not dispute that violations existed as charged in
Citation Nos. 207687, 207688, 207689, 206227, and 206228, but disputes the
"significant and substantial" findings made by the Secretary in connection
therewith. Accordingly, evidence was submitted at hearing with respect to
.that issue.
Citation No. 206227 This citation alleges a violation of the mandatory
standard at 30 C.F.R. § 56.9-22 charging that 11 a berm was not provided for
approximately 500 feet along the northeast side of the elevated roadway to
the waste dump water pump." The allegations in the citation are not contested. It is undisputed that the height of the roadway varied from 1 to
10 feet and that an ice-covered lake was situated adjacent to the bottom of
the slope. It is also undisputed that the roadway was infrequently used,
perhaps once a week, by an empty front-end loader having an axle height of
approximately 2 to 3 feet and by a pickup truck. At the time of the citation, there also existed on the roadway patches of ice, one as large as
8 feet by 12 feet in size. According to Ed Tompkins, a union representative
who accompanied the MSHA inspector, the road in question was used almost
exclusively by maintenance pickup trucks travelling at only 5 to 8 miles an
hour. A small berm of 6 to 12 inches and clumps of trees along the roadway
afforded some protection but the trees were spaced from 10 to 50 feet apart.
Within this framework of evidence, I find that indeed injuries would be
reasonably likely to occur from the absence of an adequate berm along the
cited roadway and that if the injuries were sustained they would be reasonably serious, and possibly fatal to the driver and passengers of a truck
or front-end loader falling down the unprotected sections of slope. Under
the circumstances, the admitted violation is "significant and substantial."
National Gypsum, supra.
Citation No. 206228 This citation charges a violation of the standard
at 30 C.F.R. § 56.12-30 and alleges that "the 480-volt exposed leg wires for
the waste dust water pump were not enclosed to keep a person from coming into
contact with them." The allegations in the citation and the factual representations by MSHA inspector Gary Kettlekamp are not in dispute. Kettlekamp
testified that the wires were exposed for several inches. A telephone was
located only 6 inches beneath the junction box thereby placing an individual
using the telephone in close proximity to the exposed wiring. There was a
"danger" sign on the door to the building in which the wires were exposed
and the .wire was not energized at the time of the citation. Kettlekamp
pointed out, however, that whenever the dust pump was in operation the wires
would be energized.

349

According to Union Representative Tompkins, only electricians were permitted to use this building. Its use was even further restricted to cases of
pump failure occurring usually no more than twice a month. It is undisputed
however, that contact with the exposed energized wiring could be fatal.
Within this framework of evidence, I conclude that there was indeed sufficient
opportunity for exposure to the hazard that injuries would have been reasonably likely to occur from the violative condition and that if an individual
would have contacted the exposed wiring, the injuries would have been reasonably serious and quite possibly fatal. The violation was therefore
"significant and substantial."
Citation No. 207687 This citation alleges a violation of the standard
at 30 C.F.R. § 56.14-1 charging that the "motor drive coupling (approximately
.4 inches in diameter) for the north shale feeder located on the addative floor
of the mill was not provided with a guardo 11 Again the allegations in the
citation are undisputed. Moreover, there is no dispute that the exposed
coupling at issue was located directly adjacent to a belt crossover and about
3 and 1/2 feet off the floor. The evidence shows that an individual would
have to fall to the east side and then extend his arm in order to come into
contact with the exposed coupling. The mill helper customarily used the
crossover only three times a day.
Within this framework of evidence, I do not find the violation to be
"significant and substantial." The possibility of injury was indeed quite
remote because of the infrequent use of the catwalk~ the distance from the
catwalk to the exposed coupling, and the combination of unusual circumstances
required for exposure to occur.
Citation No. 207688 This citation alleges a violation of the standard
at 30 C.F.R. § 56.14-6 charging that "the guard provided for the 12-inch
diameter Torus coupling on the slurry pump located in the mill building
slurry pumphouse was not in place while the machinery was in operation." The
allegations in this citation are not disputed. ,The slurry pump room was
14 feet by 25 feet in size. The exposed area of the coupling was approximately 12 inches square and was located about 3 feet from the ground. The
mill helper was the only employee even working in the vicinity of the exposed
part and his exposure was limited to a visual examination made some distance
from the exposed part only once or twice a shift. Under the circumstances,
I do not find that the violation was "significant and substantial." The
possibility of exposure of employees to the hazard was extremely limited.
Injuries were therefore highly unlikely.
Citation No. 207689 This citation alleges a violation of the mandatory
standard at 30 C.F.R. § 56.14-1 charging that "there was no guard provided
for either of the two operating sprocket drive motor couplings atop the, dust
bucket elevator." The allegations in the citation are not disputed. The
couplings were located about 10 inches from a ladder and an employee was
exposed only while greasing the dust bucket. Both couplings were smooth and
rotated at approximately 400 revolutions per minute. Even though exposure
to the hazard was limited to one person--an oiler who climed the ladder only

350

once a week--! find that the close proximity of the hazard to that worker
made the possib,ility of injury likely. Under the circumstances, I am convinced that injuries would have been reasonably likely to occur and that such
injury from clothing, tools or a limb contacting the moving couplings could
be reasonably serious. Accordingly, the violation is "significant and
substantial."
Amount of Penalty
In light of the above findings and the stipulations agreed to by the
parties and considering all the criteria under section llO(i) of the Actj
I find that the following penalties are appropriate:
Amount of Penalty
to be Paid

Citation No.
205397
205399
205400 (vacated)
207687
207688
206226
207689
206227
206228

$150
145
92
92
200
92
92
122

ORDER
Atlantic Cement Company, Inc., is ORDERED
within 30 days of the date of this decision.

civil penalties of $985

Distribution:
Jithender Rao, Esq., Office of the Sol1 itor, U.S. epartment of Labor,
1515 Broadway, Room 3555, New York, NY 10036 (Certified Mail)
Richard K. Muser, Esq., Clifton, Budd, Burke & DeMaria, 420 Lexington
Avenue, New York, NY 10170 (Certified Mail)

351

FEDERAL MINE SAFETY AND HEALTH REVIEW C'::>MMISSION
333 W_ COLfAX P.VU<UE, SUITE 400
DENVER, COLQR,\DO 8020-1

FEB f 21982
SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),
Petitioner,
v.

TEXAS INDUSTRIES, INCORPORATED,
Respondent.

)
)
)
)
)
)
)
)
)
)
)

CIVIL PENALTY PROCEEDING
DOCKET NO. CENT 79-60-M
A/C No. 41-01849-05002 F
MINE: Beckett Road Pit and
Plant No. S30

·---

Appearances:
Robert A. Fitz, Esq., ()ff ice of James E. White, Regional Solicitor,
United States Department of Labor, Dallas, Texas
For the Petitioner
W. Kyle Gooch, Esq., Smith, Smith, Dunlap and Canterbury,
Dallas, Texas
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent, Texas Industries, Inc., (TXI),
with a viola~ion of Title 30: Code of Federal Regulations, Section 56.
9-5,_!_/ a safety regulation adopted under the Federal Mine·Safety and
Health Act, 30 U.S.C. 801 ~seq. Respondent denies that a violation
occurred.
After notice to the parties a hearing on the merits was held rn
Dallas, Texas.

1/

The cited regulation provides as follows:
56.9-5 Mandatory. Operators shall be certain, by signal or other
means, that all persons are clear before starting or moving equipment.

352

ISSUES

The issues are whether TXI violated the regulation. Further, if
Violation OCCUrred, what penalty, if any, is appropriatP,
SUMMARY OF

THE

;:i

EV I DENCE

Donald Clary, in his 18th year, died on the seventh day of his
employment with Texas Industries, Inc.
On August 8, 1978, Clary and plant operator Bailey, the only employees
in the vicinity, were working at the log washer at the Beckett plant (Tr.
9, 40, 78, 79, 96, P2, P7, P9).
As material is dredged from the river it comes into the plant and 1s
split at a scalping screen into waste, sand, and rock fractions. A 36 inch
McLanahan log washer then removes the clays, silts, and debris. Twin
counter paddle shafts, geared to 29 r.p.m., rotate in the log roller. A
vertical box screen retains larger sized sol ids. The screen itself can
become clogged and this in turn causes a water overflow. The screen can be
cleaned by hammering on it on the down stream side of the log washer. The
cleaning procedure does not place a person in a hazardous position (P3,
P 5, P 11 , R5 , R7 , R8) .

On the day of the accident operator Bailey told Clary he wanted to
clean the screen (Tr. 25). After lunch, about 2:15 p.m., Bailey shut down
the machinery. He then show~d Clary how to clean the screen (Tr. 26).
Bailey then told Clary "I am going back [to the control room] to turn the
fedder belt and log washer back on" (Exhibit R9). As he left Railey saw
Clary beating on the screen as he stood on the catwalk (Tr. 36, R9).
The control room portion of this plant is a level ahove the log washer
(Tr. 11, 21, Rl, R3). It takes about half a minute, or 25 to 30 seconds,
for a worker to go from the catwalk to the control room switches at the
upper level (Tr. 22). At the point where the controls are located Railey
could not see Clary (Tr. 32, 69, P-7, P-9, Rl, R3,. R6).
Bailey turned on the machinery. He then walked over to where he could
see Clary. He saw him. His body was turning in the log washer. He
immediately turned off the power. There was no hope of life (R9).
Clary, feet first into the paddles, was three feet from where he had
been cleaning the screen (Tr. 88) . .
TI1ere was no reason for Clary to be above the tub or the catwalk (Tr.
87, 88, 96). Clary, when hammering on the screen, was standing on the
catwalk. There is no d.irect evidence of the height that the steel side of
the log washer extends above the catwalk but I estimate the distance at

353

approximately four feet. To reach the paddles where he
to scale that barrier (P2, R8).

w~is

found Clary had

An MSHA inspector indiuited it is routine in the industry to use "
start up signal with a time int~rval before activating machinery (Tr. 44).
TXl' s pol icy is to sound the ;:ilarm signal be fore the morning start up and
after a lockout. No lockout procedure occurred here (Tr. 51-52, 94).
DISCUSSION

The evidence here establishes that TXI violated the regulation. It's
under 30 C.F.R. 56.9-5 is to he certain that all persons are
clear before starting equipment. The means suggested by the standard are a
"signal or other means." No signal was given here and the alternative, a
broad umbrella, was neither effective nor could Bailey be "certain" that
Clary was clear. I recognize that the death of Clary in and of itself does
not, by its mere occurrence, prove a violation of the regulation. Lone
Star Industries, Inc. 3 FMSHRC 2526 (1981).

obligatio~

Plant operator Railey did not testify and his evidence is garnered
from his oral and written statements made to TXI ;:ind MSl{i\, The direct
evidence: "when he started beating the screen off, I told him I was going
back to turn the feeder belt and log wash hack on, I left him there
beating the screen ... 11 neating on a screen can often drown out a
speaker 1 s words. Did Clary ever acknowledge that he heard Bailey 1 s
statement? If he heard the statement what did it mean to him? Would
Bailey turn on the machinery 1 immediately' or after some interval. Or, as
this was only his ~eventh day on the job, would Clary anticipate a start up
alarm as at the start of the morning shift or after a lock out. Did
Clary think there had been a lock out of the e~uipment? ln fact, Clary had
to be taught .how to heat the screen to clear the clogged material. This
could well indicate the machinery had not been previously shut down during
Clary's prior six days. This would really leave Clary as an unknowing
pirticipant. In short, I cannot be certain that Bailey knew Clary was to
be clear of the equipment. Certainly is an exactitude demanded by the
regulation.
There is credible evidence in this case that the TXI warning horn,
which could be activated at the control panel, was "barely.audible," (Tr.
28). In its post trial brief TXI argues that an audible warning device is
not relevent because TXI relied on" other means." The "other means"
consisted of personal notification to be certain that Clary was clear
before the operator started the equipment. 1 agree the defense here does
not rely on a signal but relies on personal notification. However, such
notification must be as effective as an audible signal. For the reasons
previously stated I have found it was not.
No eye witnesses saw Clary die. TXl claims it is highly probable that
his death resulted after the log washer was started when Cl.ary took a short

354

cut across an I-Beam an<l fell into the log •.vaf;her on his t.1;iy to the control
station.
I, too, can specul.at":!.
It appears to me that Clary, essenti;illy
inexperienced on the job, reached among the log washr~r pa( 1 rlles to retri,:ve
a piece of wire screening (See Exhibit P-5). As l1e did t\1e machine stiJrted
and pulled him in. As he tried to extricate hi_mself his feet became entangled.
I recognize that it is uncontroverted that Clary received a safety
booklet when he started to work with TXI (RlO). He further received 24
hours of safety instructions and he was specifically tolrl not to go above
the catwalk (Tr. 96). However, the gravamen of this case centers on the
failure of the plant operator to comply with the regulation before starting
the machinery.
Any contributory negligence by Clary is not determinative
of whether TXI violated the regulcition.

For the above reasons l conclude that TXI

violat~d

30 C.F.R. 56.9-5.

CIVIL PENALTY
Section llO(i) of the Act [30 U.S.C. 820(i)J provides as follows:
The Commission shall have authority to assess all civil
penalties provided in this Act.
In assessing civil monetary
penalties, the Cormnission sh,:tll consider the op•~rator's history
of previous viol at ions, the Appropriateness of such penalty to
the size of the business of the operator charge<i, whether the
operator was .negligent,· the effect on the opercitnr's ahility
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.
ln connect ion with the stat11tory criteria 1 note that: TXI operates 122
plants in seven states. At the Beckett Road Pit and Plant it mines sand
and gravel from the river bottom by dragline (Tr. 49, 62, P-11).
All TX1
employees worked approximately 855,879 man hours in 1978. The emp
at the Beckett Road Pit and Plant worked 27,166 man hours.
(Stipulation)
TXl is accordingly a large operator.
TX.I has no prior adverse history but l find TXI was highly negligent
in that it did not use an alarm AS is the indtJstry practice but instead
re 1 ied on the more hazardous approach of "persona 1 not if ic at ion. 11 The~
gravity was apparent resulting in the death of worker Clary. After the
citation was issued TXl complied by installing :m m1di.ble alarm.
The alarm
could be heard above the operating equipment (Tr. 57).
'

()n balance, and considering the stat11te, lam unwilling to disturb the
proposed civil penalty of $3,000.

355

Based on the foregoing findings of fact and conclusions of law I enter
the following
ORDER
Citation 156111 and proposed civil penalty are affirmed.

Distribution:
Robert A. Fitz, Esq.
Office of the Solicitor
United States Department of Lahor
5
Griffin Square, Suite 501
Dallas, Texas 75202

W. Kyle Gooch, Esq.
Smith, Smith, Dunlap, Canterbury
4050 First National nank Building
Dallas, Texas 75202

356

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

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

Civil Penalty Proceeding
Docket No: LAKE 81-87•M
A.O. No: 21-00089-05002

v.

Hader Quarry and Mill

VALLEY LIMESTONE COMPANY,
Respondent
DECISION
Appearances:

Rafael Alvarez, Esq., Offic~ of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street,
Chicago, Illinois 60604, for Petitioner
Lloyd H. Johnson, Sr. 9 Valley Limestone Company,
Box 127, Zumbrota, Minnesota 55992 9 appeared pro se

By:

Charles C. Moore, Jr.,

Administrative Law Judge

The above-captioned civil penalty case was tried before Judge John
Cook on August 25, 1981 in Minneapolis, Minnesota. Judge Cook has since
transferred from the Federal Mine Safety and Health Review Commission
The parties were advised of
and the case has been assigned to me.
Judge Cook's transfer on January 19, 1982. They have not suggested any
rehearing or further evidentiary proceeding. I hold and by their actions,
that the parties have waived any right to now object to a decision based
on the record made before Judge Cook.
On August 29, 1978 Citation No: 289667 was issued to Valley Limestone
Company, a trade name used by Lloyd H. Johnston, alleging a violation of
36 CFR. 56.9-37. See Exhibit M5. The citation charges:
The Chevrolet 6400 series haul truck was left unattended
without setting the brakes at the grizzly dump site and at pit
while being loaded.
The standard in question requires that "mobile equipment shall not
be left unattended unless the brakes are set ~ •• " If the statements
set forth in the citation are true and if respondent is subject to the
coverage of the Federal Mine Safety and Health Act of 1977~ then a
violation has occurred.
Respondent quarrys limestone crushes some of it into gravel for use
as surfacing material and some into powdery limestone for use on farmlands.
It sells this limestone powder and gravel within the State of Minnesota
and only to customers near its quarry. Some of the limestone is used on

35'7

Mr. Johnson's wife's farms. Respondent moved that the case be dismissed
for lack of coverage and Judge Cook took the motion under advisement.
I had similar motions before me in Secretary of Labor vs. Capitol
Aggregates, Inc., Docket No: DENV 79-163-PM and DENV 79-240-PM. 2 FMSHRC
869, 870 (1980). That case involves a cement plant but insofar as
coverage of the Act is concerned it is quite similar to the instant
case. As to the motions to dismiss filed because of alleged lack of
coverage in Capitol Aggregates, Inc., I stated:
Both motions were denied pricipally on the rationale of Wickard vs.
Filburn, 317 U.S. 111 (1942). The case involved home grown wheat
which was used for the grower's own consumption and the court said
at page 91 "but if we assume that it is never marketed, it supplies
a need of the man who grew it which would otherwise be reflected by
purchases in the open market. Home grown wheat in this sense
competes with wheat in commerce." Subsequent cases have held that
Respondentvs activities need not be considered alone in order to
measure their effect on commerce but may be combined with others
engaged in similar activities.
Even activity that is purely intrastate in character may
be regulated by Congress, where the activity, combined with
like conduct by others similarly situated, affects commerce
among the States or with foreign nations. See Heart of Atlanta
Motel, Inc. v. U.S. 379 241, 255 (1964); WfCkard v. Filburn,
317 U.S.111, 127-128 (1942). [Fry v. U.S., 421 U.S. 542 at 547
(1974).J
For the reasons set forth above, I hold that Respondent's operation
is covered by the Mine Safety and Health Act.
When Inspector Tarro came to the quarry on August 29, 1978, he
observed two trucks and a front-end loader engaged in transporting the
limestone to the crusher. The driver would take a load of limestone to
the crusher in one truck, then he would return and leave that empty
truck to be loaded while he drove the other truck to the crusher. When
the inspector saw the dr~ver leave the truck subject to the citation
herein to be loaded, and get in the other truck and drive away, he saw
the first truck roll about 50 feet just before the loader dumped any
limestone in. When he questioned the front end loader operator and
examined the truck he found that there was no handbrake and that the
reason the truck had not been left in gear with the motor off, was that
it couldn't be started without being pushed. It was constantly left
running. While Respondent asserts that the truck did not roll 50 or 60
feet, maybe only a few feet, he does not deny that the truck was left
idling with no brakes set. The violation clearly occurred.

358

When the inspector returned two weeks later and found that the
hand-brake had not been repaired (there was not even a handle to set the
brakes) he issued a 104(b) order. His reasoning was that the violation
had not been abated and there was no reason for an extension of time.
While that order is not before me for review, the propriety of its
issuance has a bearing on the good faith effort to abate the violation.
If the charge had been made that the truck did not have adequate brakes,
the order would be clearly justified. Mere failure to use the equipment
would not constitute abatement. But the charge here was leaving the
truck unattended without setting the brakes and ordinarily when a yiolation
is caused by some affirmative act on the part of a miner, abatement is
accomplished by instructing all miners not to do whatever it was that
the offending miner did. Such an instruction would have been of no
value in the instant case because there were no brakes to be set. Good
faith compliance would have been to repair the brakes immediately and
instruct the driver never to leave the truck unattended without setting
the brakes. Respondent did not do that in this case. While Mr. Johnson
testified that he did not use the truck he was vague as to the time
after which he did not use it. He did not seem to be able to distinguish
between the original citation and the order that was issued two weeks
later. After one of those times he did not use the truck, but the truck
was in the quarry when the order was issued. Under the circumstances I
do not find good faith abatement even though I am not sure the order was
technically proper.
The gravity of this violation is very high. Even if there were no
mining laws, common sense would dictate that you do not leave a vehicle
idling without some means of preventing it from rolling, either blocking
it or braking it, or shutting off the engine and putting it in gear. At
this very mine, in 1973, a fatality was caused by a truck failing to
have an emergency brake, and it may have been this same truck. This
prior fatal accident does not go to the Respondent's history of violations
because the Act under which this proceeding was brought was not in
effect at that time but the evidence does show that Respondent was well
aware of the hazards involved in a failure to have emergency brakes.
If the brakes had been working on the truck and the truck driver
had failed to set them I would impute the negligence of the driver to
the operator in considering the amount of the penalty to be assessed.
Here, however, the truck driver did not have a brake to set and because
of the condition of the truck he could not stop the engine and leave it
parked in gear. I consider it gross negligence for Respondent to allow
this piece of equipment in this condition to be used in mine operations.
While Mr. Johnston complains that he was being harrassed by the
inspector, I think the inspector was being lenient in giving him two
weeks to abate a violation of this type. Another inspector might have
issued an innninent danger order and requ~red that the quarry be shut
down until the truck was either repaired or taken out of service.

359

There is no history of prior violations and the operation is not
large, but the g:oss negligence and the gravity involved in this violation
justify a substantial penalty. I realize that when a mine operator
challenges a citation in an administrative proceeding, and ends up being
assessed a penalty higher than that determined by the assessment officer,
be feels that he is being punished for having forced the government to
go to trial in the matter. That is a false impression, however. The
fact is that after examining the evidence in a case, the judge often has
much more information concerning the violation than was available to the
assessment officer at the assessment stage of the proceedings. The
evidence in the instant case and the circumstances surrounding the
violation convinces me that a $700 penalty would be appropriate.
Respondent is therefore ordered to pay to MSHA, within 30 days, a
civil penalty in the amount of $700.

Charles C. Moore, Jr.,
Administrative Law Judge

Entered~

Distribution: By Certified Mail
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department
of Labor, 230 South Dearborn Street, Chicago, Illinois 60604
Mr. Lloyd H. Johnson, Sr., Valley Limestone Company, Box 127
Zumbrota, Minnesota 55992

360

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

fEB 11 \982.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),

Civil Penalty Proceeding
Docket No. PENN 81-46

A.c. No. 36-06018-03030

Petitioner

v.
Emilie No. 4 Mine

KEYSTONE COAL MINING CORPORATION,
Respondent
DECISION
Appearances:

James P. Kilcoyne, Jr. 9 Esq.~ Office of the Solicitorp U.S.
Department of Labor~ for Petitioner;
Bartley R. Simeral, Esq., Keystone Coal Mining Corporation~
Indiana, Pennsylvania.

Before:

Judge Charles C. Moore, Jr.

Respondent is charged with five separate violations (citations) of
30 C.F.R. § 75.1103-4(a) which provides: "Automatic fire sensor and warning
device systems shall provide identification of fire within each belt flight
(each belt unit operated by a belt drive)." Respondent 9 s belt system consists of five flights designated as No. 1 Main, No. 1 North, No. 2 Conveyorj
No. 3 North, and No. 1 Right. No. 1 Main is the most outby belt flight and
the sensor on that flight is the one that Inspector Lawson and several other
inspectors first tested when they conducted a blitz inspection on
September 30, 1980. Inspector Lawson stayed in the lamphouse where the
alarm and monitor were located while the other inspectors went underground
to assist in the testing procedure. The remote locators are, in essence,
variable resistors located in each of the drive units of the five belt
flights. The remote indicators are connected with heat-sensing elements
along their respective belt flights and if a heat-sensing element is activated, it has the effect of shorting out the system just inby the resistors
of the remote indicator on that particular belt flight. When the remote
indicator is thus shorted out, a belt rings and an electronic readout in.the
lampshack on the surface shows a number that is supposed to indicate the'
particular flight where the fire is located. The indicator in the lampshack
does not read in ohms of resistance but is proportional thereto so that if
you double the resistance in the system you would double the number showing
on the read-out indicator.

361

When a remote lqcator is triggered, it has the effect of shutting
everything inby that locator out of the system and the only resistance on
the system is the total of the variable resistors located in the untrigger~9
remote locators outby the one that has been shorted. The locator system
works by totaling up these resistances. Each remote locator is affixed with
a testing key or switch which shorts out the wires inby the resistors, thus
having the same effect as if one of the heat sensors had shorted out the
wires.
The system was supposed to be adjusted so that if the test key on the
remote locator for No. 1 Main was turned, the indication in the lamphouse
should have been between 1 and 4.
When it was turned during Mr. Lawson's
test, it registered 18. The figures 18 does not correspond with any of the
designed readouts for the five belts. The readout for No. 2 conveyor should
be between 4 and 6, the readout for No. 3 North should be between 8 and 10~
the readout for No. 1 North should be between 10 and 12, and the readout for
No. 1 Right should be between 12 and 14. A reading of 18 indicates that
there is a fire but does not indicate where the fire is located.
Inspector Lawson wrote Citation No. 842716 for the erroneous readout
at No. 1 Main. He then tested No. 1 Right but the remote locator test key
was inoperable at that location. The remote locator was replaced and in
'its uncalibrated state gave a reading of 9.2. This reading would have
been impossible if the remote locator in No. 1 Main was still reading 18.
The resistances are additive and regardless of how this replaced remote
locator was calibrated~ the readout in the lamphouse would have to be more
than the resistance being created at No. 1 Maino The explanation is that
one of Respondent's technicians was at the No. 1 Main locator trying to
calibrate it for the correct reading of between 1 and 4 while the rest of
the tests were being made, or at least while some of them were being made
because some of the tests were made after No. 1 remote locator had been
properly calibrated. Citation No. 842717 was written because of the faulty
test key switch. The section cited, however, does not requre a test key
and the fact that a test key is not working does not keep the remote
locator from working. (TR lOO)_sl
The next test was made at No. 3 North and the indication there was 10.6
which would indicate a fire in No. 1 North rather than No. 3 North.
Citation No. 8428718 was written for this condition.
The next test was made on the No. 2 Conveyor remote locator and the
reading was 1.8 which would indicate a fire on the No. 1 Main belt. Citation
No. 842719 was written for this condition. Citation No. 842720 was written
because the indication on the remote locator in No. 1 North was 18.9 which,
as in the case with the original readout on the No. 1 Main remote locator,
would indicate a fire but would not indicate its location within the belt
system.
The first citation was issued at 8:30 a.m., the second at 8:45. the
third at 9 o'clock, the fourth at 9:15, and the fifth at 9:30. Inspector
'!:_/

The Inspector's opinion to the contrary is rejected.

362

Seibert testified that he was present when the test was made in the No. 1
Main remote locator and that immediately after the test one of Respondent's
employees started readjusting the resistance controls in an attempt to bring
the readout to its proper value. He stayed at that position until the proper
calibration had been made and then went to the No. 2 Conveyor where the
fourth citation was issued, No. 842719, at 9:15. There is a discrepancy in
the times because the citation for No. 1 Main was supposedly abated as soon
as it came into adjustment and that was not until 9:30. Inspector Seibert
could not have remained in No. 1 Main until 9:30 and have also been in No. 2
Conveyor at 9:15 even though the two remote locators for these flights are
fairly close. On Respondent's Exhibit No. 1, the arrows depict the positions
of the remote locators and the orange lines show the five flights of belts
involved in this case.
Respondent's Exhibit No. 5 is an MSHA policy statement which to me
indicates that the policy is to issue only one citation on this system if it
is out of adjustment. Both inspectors, however, interpreted the policy
statement as requiring a citation for each flight that was out of adjustmento
I see no need to rule on these contentions because I am convinced that once
the technician started readjusting the resistance on the remote indicator of
No. 1 Main, it invalidated all of the readings on the other remote locatorsa
It is a system of adding resistances and all of the remote locators inby
No. 1 Main were affected by the adjustment of the locator in No. 1 Main. It
is not clear to what extent the other locators were adjusted between the
time of the first citation at 8:30 and the time of the last at 9~30
But it
is clear~ for example, that the remote locator on Noo 1 Right~ i f tested
should indicate its own resistance plus the resistance of the remote locator
on No. 2 Conveyor and the remote locator on No. 1 Main. If there is a
recalibration of any remote locator outby the one being tested, it destroys
the validity of the test.
I therefore find that the citation issued for the No. 1 Main remote
locator, Citation No. 842716 was valid but that all of the others were
invalidated when the tests were improperly conducted. The four citations
indicated are thus vacated.
I find the violation at No. 1 Main did occur. The inspector testified
that the negligence was of a low order and there is no dispute as to the
other criteria involved. A penalty of $200 is assessed.
ORDER
It is therefore ORDERED that Respondent pay to MSHA, within 30 days,, a
civil penalty of $200.

~~;Jtt~f!..

Charles C. Moore, Jr.
Administrative Law Judge

363

Distribution:
David Bush, Esq., Office of the Solicitor, U.S. Department of Labor,
Room 14480 Gateway Building, 3535 Market Street, Philadelphia, PA
19104 (Certified Mail)
Bartley R. Simeral, Esq., Keystone Coal Mining Corporation,
655 Church Street, Indiana, PA 15701 (Certified Mail)

364

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 802(14

SECRETARY OF LABOR, MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA), on
behalf of KENNETH E. BUSH,

)
)

)
}

FEB 171982

COMPLAINT OP DISC~ARGE,
DISCRIMINATION, OR INTERFERENCE

)

Complainant,

)
)
)
)
)
)
)

v.
UNION CARBIDE CORPORATION,
Respondent.

DOCKET NO. WEST 81-115-0M
MD

80-152

DECISION AND ORDER
Appearances;
James H. Barkley, Esq.
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
For the Complainant
John W. Whittlesey, Esq.
Union Carbide Corporation
Law Department
27,0 Park Avenue
New York, New York 10017
For the Respondent
Before: Judge Jon D. Boltz

STATEMENT OF THE CASE
The Secretary, on behalf of Kenneth E. Bush, filed a complaint against
the respondent alleging that on or about July 25, 1980, respondent discharged Bush contrary to Section 105(c}( i)Jj of the F'eder;:il Mine Safety
and Health Act of 1977 (hereinafter the "Act") for exercising his· statutory
rights under the Act.

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

365

Respondent answered th11t Rush wris not "~ miner as d 1~fine<l in the Act,
and that respondent discharged complainant bRcause of insubordination,
refusal to carry out work a:Viignment, anr:I for making threatening and
derogatory remarks and gestures toward the plnnt superintrn<lent.
Additionally, respondent denies that there is jurisdiction of the Act 111
these proceedings.
At the commencement of the hearing, respondent moved to dismiss the
proceedings on the fol lowin?; grounds: ( 1) that procedural rule 41 ];_/
requires that prior to the issuance of a discrimination complaint the
Secretary must file a written determination of violations and that the
complaint must be filed within 30 days of that determination. Since no
such written determination wns served on the respondent, there was no
jurisdiction to issue the complaint; and (2) that MSHA hris no jurisdiction
over respondent's facility because it is not a "minf~ within the meaning of
the Act.
11

FINDINGS OF FACT
1. At all times relevent to these proceedings, respondent operated a
facility for processing vanadium. The facility is hereinafter referred to
as the "Rifle Plant".
2. Vanadium is contained in an ore that is mined or extracted from
the ground. After the vanadium ore is processed at another location,
respondent's Rifle Plant receives the vanadium in a concentrated liquid
solution shipped in by truck:
3. At the Rifle Plant the concentrated liquid solution is made into
several finished products, including modified vanadiwn oxide.
4. For several years prior to July 1980, sulfuric acid arrived at the
Rifle Plant by railroad tank car, and the acid was unload~~d from the railroad tank cars into storage tanks. In July, 1980, it he came necessary to
change the procedure so as to off load sulfuric acid from tank cars into
tank trucks and from tank trucks into storage tanks. It was also necessary
to load the acid from storage tanks into tank trucks.
5. After the railroad tank car arrives at the plant, the acid is
removed by means of compressed air piped into the trink c!lrs which forces

2/

Section 2700.41 When to file.

(a) The Secretary. A c~mplaint of discharge, discrimination or
interference shall be filed by the Secretary within 30 days after his
written determination that a violation has occurred.

366

the acid into the trucks. The pipe from the rail car e1npt ies ;icid into a
manhole on top of the tank truck.
6. As the compressed air forces the nci<l into the truck, there is a
blow back" when the tank car empties all the acid into the truck, and the
air is still being blown into the man hole on top of the truck. The "blow
back" causes acid to spray out of the manhole.
11

7. Complainant was a heavy duty auto mechanic employed for about five
years as such by respondent at the rifle plant. As part of complainant's
duties he was asked by a supervisor in July, 1980, to participate and learn
the procedure for unloading sulfuric acid.

8. The first sulfuric acid was loaded onto trucks on July 21, 1980.
The complainant complained to a supervisor that there was a lack of valves
in the procedure for unloading the acid, there were some leaks of acid, the
air pressure regulator was working improperly, and that there was possible
"blow back" of acid from the truck.
9. On July 22, 1980, there were two leaks of acid in the line to the
tank truck and both leaks were fixed. On the same date the acid "blow
back" problem was rectified by leaving an amount of acid in the railroad
tank car so that air pressure would not blow into the truck unless it was
forcing acid into the manhole. This would prevent t 11e acid from blowing
back on the workers,
10. On July 22, 1980, complainant was to participate in "breaking in"
or learning to unload the acid from trucks coming in, but he informed the
mine maintenance foreman that he was not going to do it, that it was unsafe
and it always had been, and, besides, it was not his job.
11. On July 23, 1980, an employee of the respondent had received an
"acid splash" while in the process of unloading acid.

12. On July 23, 1980, at the office of complainant's supervisor,
complainant was asked what the safety hazards were in regard to unloading
acid. Complainant mentioned several problems and complainant's supervisor
discussed each one as having been taken care of already. The supervisor
then asked complainant to unload acid, but complainant refused stating that
it was unsafe, and it was not his job. · Complainant .did not state as tb
what was now unsafe in regard to unloadi.ng the acid.
13. On July 24, 1980, complainant was again asked by his su~ervisor to
continue "breaking in 11 on the acid unloading work with another employee.
Complainant said he would go to the area and observe, hut that he would not
do anything further. The plant manager, who was standing nearby, then told
complainant that complainant was suspended for failure to <lo his job.

367

Complainant than said that ac i.d lo<"Jd ing was not his job, .1nd i.t was unsnfe.
The plant manag,er stated he would not discuss the safet·; m1tter with
complainant and ordered him to leave. Confronting the pla:1t manager as
complainant was leaving, complainant stated, "You mousey little bastard, I
ought to break your fucking nnse." After other comments were exchanged,
complainant left the property.
14. Complainant received a letter on July 25, 1980, instructing him
that his employment with respondent was terminated, because of insubordination, refusal to carry out work assignments, and for making
threatening and derogatory remarks and gestures toward the plant
superintendent.

ISSUES
1. Did the Commission lose jurisdiction of this case if the Secretary
failed to file a written determination that a violation occurred and <lid
not serve it on respondent within 30 days before the discrimination
complaint was filed?
2. Does the Act give the Commission jurisdiction over a plant that
does nothing more than process vanadium which is received at the plant in a
concentrated liquid solution form?
3. Did respondent viol.1te Section 105(c)(J) of the [\ct when
respondent terminated complai.'1ant's employment on July 25, 1980?

DISCUSSION
Respondent asserts that a condition precedent to the filing of a
discrimination complaint by the Secretary is that a written determination
that a violation occurred must be made by the Secretary. Rr;spondent
assumes that since no such written determinnt ion was served on the·
respondent, the condition precedent had not been followed nnd, therefore,
there was no jurisdiction to issue the complaint.
The respondent overlooks the fact that proceduri11 ruh~ 41 does not
.state that the written determination must be served on the respondent.
Indeed, the rule is silent as to what, if anything, is to he done with the
written determination.
ln any event, the requirement that the Secretary
file the complaint within 30 days of the written determination is for the
benefit of the miner on whose behalf the Secretary is to file a complaint.
This provision in the rule acts to insure that the Secretary take prompt
action in filing the complaint. Therefore, l find no r11erit in respondent's
argument.

368

Respondent also asserts that the Act do<:~s not provide for jurisdiction
over its Rifle Plant, because the operation cif the plant Eails to meet the
definitio·n of a "mine". Respondent argues th:it the fo('.ility is merely a
chemical processing plant and not a "coal or other mint:" :is ·defined in
Section 3(h}(l) of the Act.
Although the vanadium processed at the rifle plant arrives in a
concentrated liquid solution which is shipped in by truck, ii: is undisputed
that vanadium comes from ore which is mined or extracted from the ground.
It is also undisputed that vanadium is a mineral.
Sect ion 3(h)( 1) states
in pertinent part as follows:
"Coal or other mine" means • , • ( C) . • . fac i 1 it ies,
equipment, machines, tools, or other. property ...
used in .•. the work of preparing ... nther minerals
The definition is broad enough to include the operations of the Rifle
Plant. Vanadium is a mineral and the fac i J. it ies at the plant are used in
the work of preparing the mineral into several saleable products including
vanadium oxide. Accordingly, l find that the rifle plant is a "mine"
according to the definition contained in the Act, and thnt the Commission
has jurisdiction over the parties and subject matter of these proceedings.
The principles to be followed in deci<l
the remaining issues in this
case are tho~e set forth in two leading cases: Secretary of Labor, on
behalf of David Pasula v. Consolidation Coal
2 F~SHRC 2786 (1980)
retary o
y
a
stration (MSHA), ex
rel. Thomas Robinette v. United Castle Coal Company, 3 FMSHRC 803 (1981).
Thus, the fol lowing quest ions must be answered in order to determine
whether or not .the respondent violated section 105(c)( 1) of the Act when it
fired the complainant.
1.

Did complainant engaged in protected activity?

2.

If so, was the firing of the complainant motivated Ln any part by
the protected activity?

3.

If complainant was engaged in protected activity and respondent
fired complainant partially because of that protected activity,
was respondent also motivated to fire complainant because of any
unprotected activity of the complainant?

4.

Would respondent have fired complainant in any event because of
unprotected activity?

5.

In refusing to unloa<l acid, did complainant have a good faith
reasonable belief in a h117.ardous condition and, if so, was
complainant's hont~~;t perception .1 rensonable ont> ttn<ler the
circumstances of this c::rne?

369

The complainant did engage in protected activity n that he complained
that the new procedure for unloading acid was unsafe. Tile complaint was
made to com~lalnant's supervisor on several occasions, qnd including July
24i 1980, the day complainant was suspended. A safety complaint involving
a condition adjudged by the miner to be nnsafo constitutes conduct
protected by the Act.
Since complainant did en~age in protected activity, the next question
is whether the firing of complainant was motivated in part by the protected
activity. In order to answer this question, it is only necessary to restate the wording contained in the letter dated July 25, 1980, from
respondent directed to complRinant informing him that he was terminated
effective inuuediately for the "totality of your conduct on Thursday July
24, 1980, including insubordination, refusal to carry out work assignments
and for making threatening And derogatory remarks and gestllres toward me
[plant superintendent]."
The letter states that part of the reason for complainant's
termination was he refusal to carry out work assignments. Tile work
assignments in question was the assignment to continue "bre11king in" on the
work of unloading sulfuric acid. Complainm1t was referring to this
. assignment when he stated th.it the work wa'; unsafe And not his job. l
conclude that the firing of complainant was motivated in part by
compl11inAnt's protected activity.
Respondent was also motivated to fire complairrnnt because of complainant's unprotected activfty. Again, referring to respondentis letter
to complain.ant dated July 25, 1980, respondent cites insubordination, and
making threatening and derogatory remarks and jestures· tow1Jrcl the plant
superi~tendent as additional reasons for complainant's termination of
employment. These activities were not protected by the Act and according
to respondent's letter, they were part of the reason for complainant's
termination.
The evidence does not support a cnncl>.1sion that r<~srondent would hnve
fired complainant in any event because of unprotected nctivity. Respondent
argues that complainant would only have been suspended for refusing to
unload acid but was fired only for reasons unprotected by the Act, namely,
for his abusive treatment of .the plant superintendent. However, both
respondent's letter of July 25, 1980, and the testimony of the plant
superintendent contradict that assertion. The letter mentions complainant's refusal to carry nut work assignment as a Rround for
termination. The plant superintendent against ~iom complainant made the
abusive remarks testified that "we wi 11 not do anything in the heat of an
incident other than to suspend."
ln refusing to continue to "break in" on the 'llOrk of unloading the
acid on the basis that it was unsafe, complainant's percention was not a
reasonable one under the circumstances of this case. In i1~dition to
stating to his supervisors several times that the work was 11nsafe, complainant also stated that" it was not his iob to do it. Complainant 1 s job
classification was heavy dutv auto mechanic, and the evidence shows that it
clearly was his duty to work on unload in:; acid.

370

When safety complaints were made by complainant in n·gard to the 1ww
procedures for unloading acid, the evidence shows that those complaints had
been acted upon by the respondent. The problems including "blow back" of
acid while loa9ing the trucks, and the problem of acid le:1ks while dis
connecting lines had been rectified.
After the solution of all the complaints had been explained to
complainant in his supervisor's office on July 24, 1980, complainant was
again asked to break in on the work of unloading the acid. Complainant
again refused, stating that it was unsafe, but when he was asked in what
way it was unsafe, complainant offerred no explanation. Complainant also
stated, as he had before, that "besides, its not my job." The only conclusion I can come to is that complainant would not unload acid under any
circumstances. The evidence left no doubt that unloading ncid is a
dangerous job, but when all precautions have been taken, it does not mean
that an employee may safely refuse to do the work under the protect ion of
the Act.
Under the circumstances of this case complainant's refusal to work in
unloading acid cannot be considered reasonable.

CONCLUSION OF LAW
Complainant has failed to prove by preponderance of the evidence that
respondent violated section lOS(c)(l) of the Act whPn it discharged complainant on July 25, 1980.
ORDER

The complaint is dismissed.

, Jon D. Boltz
/ ·)
~Administrative La~Judge

Distribution:
James H. Barkley, Esq.
Office of the Solicitor
United States Department of L;ihor
1585 Federal Building
1961 Stout Street
Denver, Colorado 80294
John W. Whittlesey, Esq.
Union Carbide Corporation, Law Department
270 Park Avenue
New York, New York 10017

371

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

z 2 fEB 1962.
SECRETARY OF LABOR, MINE SAFETY AND )
)
HEALTH ADMINISTRATION (MSHA),

CIVIL PENALTY PROCEEDING

)

Petitioner,
v.
THE PITTSBURGH & MIDWAY COAL
COMPANY,
Respondent.

)
)
)
)
)
)
)

DOCKET NO. WEST 79-405
MSHA CASE NO. 05-00303-03005
MINE: Edna Strip

Appearances:
Katherine Vigil, Esq., Office of Henry C, Mahlman, Associate
Regional Solicitor, United States Department of Labor,
Denver, Colorado
For the Petitioner
Terrance M. Cullen, Esq.
Denver, Colorado
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges that respondent, The Pittsburgh and Midway
Coal Mining Co., (P & M), violated Title 30, Code of Federal Regulations
§ 77 .1110, JJ a regulation adopted under the authority of the Federal
Mine Safety and Health Act, 30 U.S.C. 801 ~seq.

1/

The cited standard provides as follows:

77. 1110 Examination and maintenance of firefighting equipment.
Firefighting equipment shall be continuously maintained in a usable and
operative condition. Fire extinguishers shall be examined at least once
every 6 months and the date of such examination shall be recorded on a
permanent tag attached to the extinguisher.

372

ISSUES
The issues. are whether P & M violated the regulation.
occurred, what penalty, if any, is -appropriate.

If a violation

STIPULATED FACTS
The parties waived a hearing and filed the following written
stipulation:
1. Respondent operates a surface coal mine at Oak Creek, Colorado,
called the Edna Strip Mine;
2. The operation of the Edna Strip Mine affects commerce and is thus
subject to the provisions of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq., (the "1977 Act").
3.
Morris.

That this proceeding is properly before the Honorable John J.

4. An authorized representative of the Secretary of Labor conducted
an inspection of the Edna Strip Mine on June 12, 1979, in order to
determine respondent's compliance with the 1977 Act and valid regulations
promulgated by the Secretary of Labor pursuant to the 1977 Act.
5. As part of that inspection, the authorized representative of the
Secretary discovered a damaged fire extinguisher on an explosives truck of
the respondent. This fire extinguisher was inoperative on the day of the
inspection because of a damaged release lever. As a result, the authorized representative of the Secretary of Labor issued Citation No. 791622 to
the respondent, which citation alleges that respondent's damaged fire
extinguisher constitutes a violation of 30 C.F.R. § 77.1110 by the
respondent. The respondent does not dispute the existence of an inoperative fire extinguisher on the explosives truck.
6. The authorized representative of the Secretary did not allege that
respondent had violated 30 C.F.R. § 77.1109 despite the presence of the
inoperative fire extinguisher on the respondent's explosives truck.
7. On Ju.ne 12, -1979, there were two operative type ABC fire extinguishers with a combined rated extinguishing capacity of 15 BC on the
cited vehicle, one 10 BC and one 5 BC. Thus, respondent states it was in
compliance with 30 C.F.R. § 77.1109(f) on the day Citation No. 791622 was
issued.
8. The damage to the inoperative fire exting1iisher for which Citation
No. 791622 was issued was not obvious during the daily inspections of the
cited vehicle. In addition, the permanent tag attached to the cited fire
extinguisher indicated that it had been completely examined by the
respondent ~ithin the six months preceding June 12, 1979.

373

DISCUSSION

The stipulated facts clearly support.the conclusion that P & M
violated 30 c:F.R. § 77.1110. The regulation provides that fire fighting
equipment sha.11 be usable and operative. A fire extinguisher on the
explosives truck on the day of this inspection was inoperative and
consequently unusable. The extinguisher had a broken release lever.
P &. M's defense evolves in thi~ fashion: Section 77.1110 states that
"firefight;ing equipment shall be continuously maintained .•. ". 30 C.F.R.
1109( f) 2/ relating to the quantity and location of fire fighting
equipment states that vehicles shall be equipped in accordance with the
National Fire Protection Association Handbook, 12th Edition 1962. The
parties and their post trial briefs agree that P & M was in compliance with
30 C.F.R. § 77.1109(f) on the day the citation was issued.

I am not persuaded by P & M's argument. Section 77.1110 in effect
states th~t [all] firefighting equipment shall be continuously maintained
in a usable and operative condition. Section 77.1109(£) establishes the
minimum quantity of such fire fighting equipment, If P & M places a
quantity in excess of the minimum such fire extinguishers must nevertheless
be usable and operative. This view necessarily conflicts with P & M's
contention that a violation cannot be based on the existence of an
inoperative fire extinguisher where the explosives truck also has operative
fire equipment meeting or exceeding the requirement of 30 C.F,R, § 77,1109(f),

I agree with ·P & M's view tha~ it need only meet the minimum requirements of two fire extinguisher required by 30 C.F.R. 77.1109(£); however,
having undertaken to provide more equipment, it must be usable and
operative.
P & M states the Secretary's view is unreasonable because under his
construction a fire extinguisher which is awaiting or being repaired could
be in violation of the regulation. I disagree. A fire extinguisher
awaiting repair seems hardly by ariy stretch of the imagination to be ''fire
fighting" equipment. In any event P & M has not presented those facts for
adjudication.

2/

The standard, 30 C.F.R. 1109(f), referred to by P & M reads as follows:
(f) Vehicles transporting explosives and blasting agents shall be
equipped with fire protect ion as recommended in Code 495, sect ion
20, National Fire Protection Association Handbook, 12th Edition,
1962.

374

P & M says .no dimunit ion of a miner 1 s protect ion could occur because
two operative fire extinguishers were present. Such a factual situation
would require the miner to guess which two of the three extinguishers were
operative. There are no doubt situations in a fire when a miner would not
have a wealth of time to make his choice. Further, P & M's argument leads
me to extend it. Consider the hazards if only two extinguishers out of a ·
total of, say six extinguishers, were operative. The law is clear that ·if
a conflict exists between an interpretation that promotes safety and an
interpretation that would serve another purpose at the possible compromise
of safety the first should be preferred U.M.W.A. v. Kleppe 562 F. 2d 1260,
1265 (D.C. Cir. 1977).
CIVIL PENALTY

P & M, in the alternative, argues that the $114 proposed civil penalty
is excessive. This view rests on the proposition that the fire
extinguisher damage was not obvious and that the extinguisher had been
examined within the six months preceding the date of the inspection, TI1is
issue goes to P & M's negligence which I consider higher than usual
inasmuch as this was an explosives truck.
P & M further notes it immediately complied and abated the violation
and it also reargues its view that no safety problem existed. Abatement is
a factor favorable to P & M..

Section llO(i) 30 U.S.C. 820(i) sets forth the criteria for assess
civil penalties and on the basis of the stipulated facts and the statute l
deem that the proposed civil penalty of $114 is appropriate.
Based on the foregoing facts and conclusions of law l enter the
following:

ORDER
Citation 791622 and the proposed civil penalty therefor are affirmed.

John J. Morris,
' Administrattv~ Law Judge
(/

375

Distriqution:
Katherine Vigil; Esq.·
Office of the Solicitor
United States Department of Labor
1585 Federal Building
1961 Stout Str~et
Denver, Colorado 80294
Terrance M. Cullen, Esq.
1720 South Bellaire Street
Denver, Colorado 80222
The Gulf Companies,
The Pittsburg and Midway Coal Mining Company
1720 South Bellaire Street
Denver, Colorado 80222

376

FEDERAL MINE 'SAFETY AND HEALTH REVIEW COMMISSION
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

)
)

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

I 2 FEB 1982
CIVIL PENALTY PROCEEDING

)

)
)
)
)
)

Petitioner,
v.

FMC CORPORATION,

DOCKET NO. WEST 81-80-M
MSHA CASE NO. 48-00152-05030
MINE:

FMC

)

Respondent.

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

FMC CORPORATION,
Contestant,
v,

)
)

CONTEST OF CITATION PROCEEDING

)
)

DOCKET NO, WEST 80-397-RM

)

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

Citation No. 337613

)

MINE:

FMC

)

Respondent.
DEC IS

)
)

AND ORDER

Appearances:
James R. Cato, Esq.
Office of the Solicitor
United ~tates Department of Labor
911 Walnut Street, Room 2106
Kansas City, Missouri 64016
Attorney for the Secretary
John A. Snow, Esq.
Vancott, Bagley, Cornwall & McCarthy
50 S. Main, Suite 1600
Salt Lake City, Utah 84144
Attorney for FMC Corporation
Before: Judge Jon D. Boltz

STATEMENT OF THE CASE
Pursuant to provisions of section lOS(d) of the Federal Mine Safety
and Health Act of 1977 (hereinafter the "Act"), FMC Corporation
(hereinafter "FMC") filed its Not ice of Contest of a cit at ion issued June
13, 1980 which 1 alleged a violation of 30 C.F.R. 57.6-107. The regulation
reads "Holes shall not be drilled where there is danger of intersecting a
charged or misfired hole." FMC-alleges that the citation is invalid and
void.

Subsequent to the filing of the Notice of Contest, the Secretary filed
a petition for assessment of a civil penalty for the violation alleged in
the same citation. An order was entered consolidating the above cases for
hearing. The parties agreed that I have jurisdiction over the parties and
subject matter of these proceedings.
FINDINGS OF FACT
1. FMC is a large operator, and the imposition of a proposed civil
penalty will not affect FMC's ability to continue in business.
2. FMC's history of previous violations is not extraordinary with
respect to other mines of s
lar size.
3. FMC demonstrated good faith in abating the alleged violation after
notification.
4. It is the procedure at FMC's undergr0und Trona Mine that the
standard pattern used for drilling and blasting is to commence work on the
right side of a room and then move to the left. Thus, the driller might
drill the right crosscut of a room, then left to the face, and then move to
the left side of the room and drill the left crosscut.
5. After the driller completes his work in a room, the blaster
(shot fire) follows and would prepare the right crosscut, the face, and
then the left crosscut, in that order, for blasting.
6, The blaster inserts the primer in the dri 11 holes and then the
holes are tamped with explosive agent. The wiring of the holes
then
completed in order to be ready for firing.
7. On June 10, 1980, Billy Smith, a blaster, was assigned to load and
blast in rooms 4 and 5 after they were drilled ort the same date. 1n room 4
only the face and left crosscut were to be drilled and blasted, but in room
5, the right crosscut, face and left crosscut were to he prepared for
blasting.
.
8. It took Smith approximately 20 to 30 minutes to prepare a face or
crosscut for blasting, and it took approximately 10 to 20 minutes for the
driller to drill a face or crosscut.
9. After the driller completed drilling the face and left crosscut of
room 4 he moved into room 5 and began drilling the right crosscut. On the
opposite side of the right crosscut of room 5 was the left crosscut of room

4.
10. Immediately following the drillers withdrawal from room 4, Smith
ent.ered the room and loaded the dri 11 holes at the face with primer, but
instead of completing the operation by inserting the explosives, tamping or
stermning the holes, and completing the wiring, he moved to the left crosscut of the same room and commenced loading it.

378

11. The driller was still drilling holes in the right crosscut of
room 5 when Smith began loading the explosives in the left crosscut of room
4. The drille.r and blaster were then working on the opposite sides of the
same wall.
12. While the driller was drilling the last hole in the right crosscut of room 5, the drill intersected a charged hole in the left crosscut of
room 4, resulting in an explosion which fatally injured Smith.
13. According to FMC drilling procedures, '' ... the drill operator
must make sure of the location to be drilled to insure that he will not
drill into places that are already tamped or being tamped with explosives."
ISSUES
Was there a violation of 30 C.F.R. 57.6-107 on June 10, 1980, and, if
so, what is the appropriate penalty?
DISCUSSION
Smith failed to follow FMC procedures in that he did not finish
preparing the face of room 4 for blasting before he moved on to the left
crosscut. Smith's supervisor told him a short time before the accident to
check in room 5 to make sure the driller was finished before he charged the
left crosscut of room 4. It was also the duty of the driller to ensure
that he would not drill into· places that were "already tamped or being
tamped with explosives." These acts or omissions caused the drill to
intersect the previously drilled and charged hole.
FMC argues that there was no violation of the cited regulation because
drilling was not occurring where there was a danger of intersecting a
charged hole, and that the only reason a charged hole was intersected was
due to the negligence of Smith .. In other words, the standard merely
prohibits an operator from drilling in an area where there is a reason to
know that there is a possibility or a danger of intersecting a charged
hole. Since there was no reason for FMC or the driller to know that Smith
would not be following the prescribed procedures, there was no reason to
believe that the driller would intersect a charged hole.
This argument overlooks the fact that the driller also did not comply
with FMC' s own drill operator requirements. According to one rule, the
drill operator must ensure that he will not drill into places that are
already tamped or being tamped with explosives. The drill operator failed
to do this.
There was danger of intersecting a charged hole because both the 'drill
operator and blaster were working in adjacent rooms. This condition alcne
created the danger, and, thus required that steps be taken to ensure that
the drill did not intersect a charged hole. The evidence shows that

379

neither the blaster nor the drill operator took the precautions required by
FMC or both miners would have known exactly where the other was working,
and the accident could have been avoided. Since there was danger of
intersecting a·charged holei the hole should not have been drilled,
according to the cited regulation. Thus, I find that there was a violation
of 30 C.F.R. 57.6-107, as alleged.
I find that the proximate cause of the violation was the failure of
the blaster and the drill operator to follow supervisors instructions and
FMC's specific work rules. However, the Act irnpos~s strict liability on
the mine operator in cases where employee misconduct has caused a violation
of a regulation. Citation Heldenfells Brothers, Inc., v. Marshall and
FMSHRC, 2 MSHC 1107 (5th Cir. 1981). Lack of negligence on the part of FMC
acts to mitigate the proposed civil penalty.

CONCLUSION OF LAW
The Secretary has proven by a preponderance of the evidence that FMC
violated 30 C.F.R. 57.6-107, as alleged in Citation 337613.
ORDER
Citation No. 337613 is affirmed, the Notice of Contest is dismissed~
and FMC is ordered to pay a civil penalty in the sum of $500.00 within 30
days of the date of this Decision,

,.

;

JOO

D.

~,

'

..

'· .1·71>:,
I_.~~'--·=~---'Bo tz, . > )
·
rAdrninistrative f:.a{., Judge
Distribution:
James R. Cato, Esq.
Office of the Solicitor
United States Department of Labor
911 Walnut Street, Room 2106
Kansas City~ Missouri 64106
John A. Snow, Esq.
Vancott, Bagley, Cornwall & McCarthy
50 S. Main Street, Suite 1600
Salt Lake City, Utah 84144

380

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

FEB 2 31982

Civil Penalty Proceeding

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

Docket No, KENT 81-140
A. C. No. 15-11161-03043D

v.
KENTUCKY CARBON CORPORATION,
Respondent

Calloway No. 1 Mine

DECISION APPROVING SETTLEMENT
The parties have reached a settlement of the violation involved in
the total sum of $1,000.00. MSHA's initial assessment therefor was
$5,000.00.
In their joint motion the parties indicate
"The parties, by counsel, after lengthy discussions of the criteria
set forth within section llO(i) of the Act and a review of the trial
record (Docket No. KENT 80-145-D) consisting of 653 pages, have agreed
that the pending matter should be settled for $1,000.
The following is a discussion of the section llO(i) criteria.
1. Negligence - The violation resulted from a low degree of ordinary
negligence. This conclusion is based upon the following considerations:
a. The failure of Gooslin, the discriminatee, to timely notify
Kentucky Carbon of his intentions to make a safety inspection on
the night of September 30, 1979.
b. Gooslin's unprotected activity, i.e., "On September 30, 1979,
complainant Bobby Gooslin engaged in the following activity which
does not constitute protected activity under section 105(c) of the
Act: After being refused the right to enter and inspect the mine by
Shift Foreman James Christian, Gooslin said, 'I'm going to show these
damn Hagers that they don't run this place.'" Secretary of La'!:,vr, on
behalf of Bobby Gooslin v. Kentucky Carbon Corporation, Docket No.
KENT 80-145-D (FMSHRC, March 18, 1981), page 24.
c. The comment made by Administrative Law Judge Laurenson in the
original Gooslin case at page 15: "The UMWA and Kentucky Carbon were
on a collision course. To put it kindly, MSHA was merely negligent.
While these events are not directly related to the issues at hand,
they set the stage for the events of September 30, 1979, which culminated in the work stoppage and the discharge of Bobby Gooslin." The
events referred to in the above quotation are:
1. Strained labor-management relations at the Calloway
No. 1 Mine.

381

2. A history of wildcat work stoppages.
3. Kentucky Carbon's written notification of its intent
to discharge any miner involved in any unauthorized work
stoppage.
4. The discharge and subsequent reinstatement of thirteen
miners who invoked their individual rights pursuant to the wage
agreement, by refusing to work in an area which they considered
unsafe.
5. A continuing dispute between UMWA and Kentucky Carbon
regarding the requirement of a twenty-four hour notice before
making a safety committee inspection.
6. The UMWA and Kentucky Carbon dispute involving MSHA in
dealing with the propriety of hauling supplies on mantrips.
2. Gravity - This violation could have a future effect upon miners
who desire to assert rights protected by section 105(c) of the Act. However, the parties believe that the gravity of this matter has been negated
by the decision in the discrimination proceeding heretofore mentioned.
3. Good Faith - Good faith in the traditional sense is not applicable to the matter at hand. The fact that Kentucky Carbon refused to
voluntarily reinstate Bobby Gooslin after the Mine Safety and Health Administration determined that Gooslinvs discharge was a violation of section 105(c) of the Act should not be considered as a lack of good faith;
after all, Kentucky Carbon was exercising its right to contest said MSHA
findings by means of civil litigation as prescribed within the Federal Mine
Safety and Health Act of 1977.
4. History - Kentucky Carbon Corporation was a respondent in three
prior 105(c) discrimination cases filed with the Federal Mine Safety and
Health Review Commis~ion. However, all three cases were settled without
an affirmative finding of a section 105(c) violation.
5.

Size - Kentucky Carbon Corporation is a large operator.

6. Ability to Remain in Business - The agreed penalty will not
affect Kentucky Carbon Corporation's ability to remain in business.
It is the parties' belief that approval of this settlement is in the
public inr~rest and will further the intent and purpose of the Federal
Mine Safet..1 and Health Act of 1977."

382

ORDER
Respondent, if it has not previously done so, is ordered to pay
$1,000.00 to the Secretary of Labor within 30 days from the date of this
decision.

#~~?#//~.;Michael A. Lasher, Jr·. , Judge

Distribution:
William F. Taylor, Esq~. Office of the Solicitor, U. S. Department
of Labor, 801 Broadway, Rm. 280, Nashville 9 TN 37203 (Certified
Mail)

W. Timathy Pohl, Esq., Kentucky Carbon Corp., 1300 One Valley Sq.,
Charleston, WV 25301 (Certified Mail)

383

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

FEB 2 31982
SECRETARY OF LABOR~
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)~

Civil Penalty Proceeding
Petitioner

Docket Noo LAKE 79-7-M
A/O Noo 47-02546-05001 R

Vo

Sherman Lime and Rock Quarry

SHERMAN LIME AND ROCK COMPANYs
Respondent
DECISION
Appearances

Miguel Jo Carmona~ Esqo~ Office of the Solicitor~
UoSo Department of Labor~ Chicago Illinois~ for
the Petitioner;
Thomas Eder, Partner, Sherman Lime and Rock Company~
Elk Mound, Wisconsin, for the Respondent.

Before:

Judge Cook

I.

Procedural Background

On May 4, 1979, the Secretary of Labor (Secretary) filed a petition for
assessment of civil penalty in the above-captioned case pursuant to section
llO(a) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
~~·(Supp. III 1979) (1977 Mine Act).
The petition charges Sherman Lime
and Rock Company (Respondent) with a violation of section 103(a) of the 1977
Mine Act as set forth in a citation issued pursuant to section 104(a) of the
1977 Mine Act.
The Respondent failed to file an answer and, on September 30, 1980,
Chief Administrative Law Judge James A. Broderick issued an order to show
cause requiring the Respondent to either file an answer within 15 days or
to show good reason, in writing, for its failure to do so. The Respondent
filed an answer on October 22, 1980. On November 19, 1980, an order was
issued by the undersigned Administrative Law Judge receiving the answer for
late filing.
Various notices of hearing were issued which ultimately scheduled the
matter for hearing on the merits on March 12, 1981, in Eau Claire, Wisconsin.
The hearing was held as scheduled with representatives of both parties present and participating. The Respondent delivered a closing argument and a
schedule was set for the filing of posthearing briefs and proposed findings
of fact and conclusions of law.

384

The briefing schedule was later revised due to difficulties experienced
by the Respondent. The Secretary and the Respondent filed posthearing briefs
on April 21, 1981, and August 3, 1981, respectively. The Secretary filed a
reply brief on August 19, 1981.

II.

IIIo

Violation Charged
Citation No.

Section

Date

287437

103(a)

May 11, 1978

Witnesses and Exhibits
Ao

Witnesses

Both the Secretary and the Respondent called Robert C. Goins~ a Federal
mine inspector~ and Thomas Eder~ a partner in the Respondent~ as witnesseso
Bo

Exhibits

1.

The Secretary introduced the following exhibits in evidence:

M-1 is a three-page document containing copies of Citation Noo 287437,
section 103(a)~ May 11~ 1978; and the May 12D 1978~ modification thereofo
M-2 is a~copy of the inspector~s statement pertaining to M-lo
M-3 is a certified copy of a court record in the case of Secretary
of Labor v. Thomas Eder, Pat Eder, and Mike Eder, t/d/b/a Sherman Lime and
Rock Company, Civil Action No. 78-C-273 (W.D. Wis.), certified by the Clerk
of the Unit.ed States District Court for the Western District of Wisconsin,
which contains copies of the complaint (filed June 22, 1978), the answer
(filed July 17, 1978), and the consent judgment (filed November 2~ 1978)0
2.

The Respondent introduced the following exhibits in evidence:

0-1 is a copy of an order issued on July 13, 1978, in the case of
Secretary of Labor v. Thomas Eder, Pat Eder, and Mike Eder, t/d/b/a Sherman
Lime and Rock Company, Civil Action No. 78-C-273 (W.D. Wis.), denying the
Plaintiff's motion for a preliminary injunction.
0-2 is a letter dated September 5, 1978, from Richard L. Wachowski,
Esq., to Mr. Thomas Eder.
0-3 is a letter dated September 8, 1978, from Richard L. Wachowski,
Esq., to Mr. Thomas Eder.
0-4 is a letter dated September 14, 1978, from Richard L· Wachowski,
Esq., to Mr. Thomas Eder.

385

IV.

Issues

Two basic issues are involved in this civil penalty proceeding: (1) did
a violation of section 103(a) of the 1977 Mine Act occur, and (2) what amount
should be assessed as a penalty if a violation is fvund to have occurred? In
determining the amount of civil penalty that should be assessed for a violation, the law requires that six factors be considered: (1) history of previous violations; (2) appropriateness of the penalty to the size of the
operator's business; (3) whether the operator was negligent; (4) effect of
the penalty on the operator's ability to continue in business; (5) gravity
of the violation; and (6) the operator's good faith in attempting rapid
abatement of the violation.
Vo

Opinion and Findings of Fact
A.

Stipulations

The parties entered into the following stipulations 1_/ on March 12 9
1981~

lo At all times relevant to this matter, Thomas, Patrick, and Michael
Eder traded and did business as Sherman Lime and Rock Company (Tr. 5).
2. At all times relevant to this matter~ the Respondent operated a
mine (quarry) located west of Menomonie 9 Dunn County~ Wisconsin (Tro 6)0
3. A citation for violation of section 103(a) of the 1977 Mine Act
was written by Inspector Robert C. Goins on May 11, 1978. The citation
was mailed to the Respondent on May 12, 1978, due to the Respondent's
refusal to accept personal service on May 11, 1978 (Tr. 6).
4.

The Respondent is a small, family-owned business (Tr, 11).

5. The Respondent's Sherman Lime and Rock Quarry produced approximately
2,000 tons in 1978 (Tr. 11-12).
B.

Occurrence of Violation

Federal mine inspectors Robert C. Goins and John L •.Davidson arrived at
the Respondent's Sherman Lime and Rock Quarry at approximately 7:50 a.m. on
May 11, 1978, to conduct a safety and health inspection pursuant to the provisions of the 1977 Mine Act (Exh. M-1). The inspectors identified themselves
and informed Patrick and Michael Eder as to the purpose of their visit (Exh.
M-1). The inspectors were told that the Respondent's operation was a familyowned and operated business, that there was nothing to inspect, and that if

1./

The parties also agreed that "[t]his shall be a partial stipulation of
some of the facts involving the actual case and shall not be construed as
precluding either party from presenting additional evidence to the Court"

(Tr. 5).

.

386

they were allowed onto the property to perform an inspection, then they could
return at any time to shut down the mine (Exh. M-1). Patrick and Michael
Eder denied the inspectors entry to the facility stating that they would not
be allowed onto the property for the purpose of conducting an inspection
(F.xh. M-1). The inspectors asked Patrick and Michael Eder if they would
accept a citation, and they responded in the negative. The inspectors left
the facility at approximately 8:25 a.m.
Later that day, Inspector Goins prepared Citation No. 287437 charging
the Respondent with a violation of section 103(a) of the 1977 Mine Act in
that "Robert c. Goins and John L. Davidson, MSHA mine inspectors, were
refused entry to the Sherman Lime and Rock Quarry at 0750. After letting
operators read memorandum from Thomas Shepich~ 4-27, the operators still
refused entry to the quarry* * *" (Exh. M-1). The citation was mailed to
the Respondent by certified mail on May 12, 1978, due to the Respondent 1 s
refusal to accept personal service on May 11, 1978 (Exh. M-l)o
Section 103(a) of the 1977 Mine Act provides, in part, that n[f]or the
purpose of making any inspection or investigation under this Act, the Secretary, * * *with respect to fulfilling his responsibilities under this Act,
or any authorized representative of the Secretary* * *, shall have a right
of entry to, upon, or through any coal or other mine."
The Respondent def ends against the charge of violation by maintaining
that it was under no legally enforceable duty on May 11 1978, to grant the
authorized representatives of the Secretary entry to, upon, or through the
Sherman Lime and Rock Quarry for the purpose of conducting a health and
safety inspection.
The material facts reveal that the Respondent is a small, family-owned
business which is organized as a partnership. The Sherman Lime and Rock
Quarry is located in Dunn County, Wisconsin, .and consists of a limestone
quarry and related milling operation used to produce agricultural lime. The
agricultural lime is sold to farmers in the immediate geographic area who use
it to neutralize soil acidity, and it appears that the Respondent delivers
the agricultural lime to its customers. However, the Respondent does not
sell any of its products outside the State of Wisconsin. The business is
seasonal, operating only during the fall and spring for a total of approximately 4 months p~r year. Additionally, it appears that the Respondent was
making deliveries and performing maintenance work on May 11, 1978, but that
no actual mining or milling activities were underway at the time of the
attempted inspection.
It appears that the partnership is composed solely of Patrick, Michael 9
and Thomas Eder. Mr. Thomas Eder testified that Patrick Eder, Michael
Eder~ and he are the only individuals who work at the facility • However,
he also testified that the Respondent occasionally enters into contracts
with powder companies who perform at least some of the drilling and blasting
operations necessary to extract the limestone from the earth. According to
Mr. Eder, the drilling and blasting operations are performed by one person
who appears to be either an employee of the powder company or an independent
owner-operator hired by the powder company.

387

As relates to the type of equipment used at the facility, Inspector Goins
testified that he saw a John Deere.450 front-end loader, a Ford single-axle end
dump truck, an Allis Chalmers patrol grader, and a Cedar Rapids plant. According to Inspector Goins, the Cedar Rapids plant consisted of a jaw crusher, a
hammermill and probably a small rollmill. Mr. Eder testified that a shovel,
a loader, a primary hammermill, trucks, and several Gardner Denver drill rigs
are used at the facility. Mr. Eder further testified that the Respondent has
used Ford, International, and Chevrolet trucks. Additionally, he testified
that most of the equipment is "purchased local or as close to local as
possible." It appears that all of the equipment was purchased in Wisconsino
The Respondent makes use of the telephone to communicate with its customers
and has made occasional use of newspapers to advertise its productso
Following the May 11, 1978, denial of entry, the Secretary filed a civil
action in the United States District Court for the Western District of
Wisconsin pursuant to section 108 of the 1977 Mine Act to obtain injunctive
relief. 2/ Secretary of Labor v. Thomas Eder, Pat Eder, and Mike Eder,
t/d/b/a Sherman Lime and Rock Company, Civil Action Nao 78-C-273 (Exho M-3)o
The Secretaryvs complaint, filed on June 22, 1978, alleged that at all relevant times mentioned therein, Thomas, Pat, and Mike Eder traded and did
business as Sherman Lime and Rock Company, and operated a mine subject to the
1977 Mine Act in or near Menomonie, Dunn County, Wisconsin, within the jurisdiction of the United States District Court for the Western District of
Wisconsin; that on May 11, 1978, pursuant to section 103 of the 1977 Mine Act~
authorized representatives of the Secretary went to the mine operated by the
Defendants to conduct a health and safety inspection of that mine; and that

?:./

Section 108(a)(l) of the 1977 Mine Act provides as follows:
"The Secretary may institute a civil action for relief, including a
permanent or temporary injunction, restraining order, or any other appropriate order in the district court of the United States for the district
in which a coal or other mine is located or in which the operator of such
mine has his principal office, whenever such operator or his agent"(A) violates or fails or refuses to comply with any order or decision
issued under this Act,
"(B) interferes with, hinders, or delays the Secretary or his authorized representative, or the Secretary of Health, Education, and Welfare or
his authorized representative, in carrying out the provisions of this Act,
"(C) refuses to admit such representatives to the coal or other mine,
"(D) refuses to permit the inspection of the coal or other mine, or
the investigation of an accident or occupational disease occurring in, or
connected with, such mine,
"(E) refuses to furnish any information or report requested by the'
Secretary or the Secretary of Health, Education, and Welfare in furtherance
of the provisions of this Act, or
"(F) refuses to permit access to, and copying of, such records as the
Secretary or the Secretary of Health, Education, and Welfare determines
necessary in carrying out the provisions of this Act."

388

on May 11, 1978, the ·Defendants failed and refused to permit the Secretary's
representatives to enter and inspect the mine. }./ The Secretary prayed that
the Defendants, their agents and employees and all persons in active concert
and participation with them be preliminarily and permanently enjoined:
(1) from refusing to admit authorized representatives of the Secretary to,
upon or through the Defendants' mine; (2) from refusing to permit the
inspection of the mine by authorized representatives of the Secretary;
(3) from interfering with, hindering, and delaying authorized representatives
of the Secretary in carrying out the provisions of the 1977 Mine Act; and
(4) for such other relief as the Court may deem just and proper.
The Defendants filed an answer on July 17, 1978, admitting all of the
above-stated factual allegations in the complaint with the exception of the
allegation that the Defendants' mine is subject to the 1977 Mine Acta That
allegation was specifically denied.
3/ The affidavit of Federal mine inspector Robert Co Goins was attached to
the complaint and incorporated therein by referenceo The affidavit states$
in part~ as follows:
"l. I am an authorized representative of the Secretary of Labor employed
by MSHA as a Metal and Nonmetal Mine Inspector and assigned to the Madison,
Wisconsin field office. In this capacity I conduct inspections and investigations of mines pursuant to Section 103 of the Federal Mine Safety and Health
Act of 19770 I have personal knowledge of the facts and circumstances contained hereino
"2. On May 11, 1978, accompanied by John Lo Davidson I went to the
Sherman Lime and Rock Company quarry located west of Menomonie, Dunn County~
Wisconsin. The mine is owned by Tom Eder and operated by him and his two
sons, Pat and Mike.
"3. We arrived at the quarry at 7:30 A.M. and met Pat .Eder at the gate.
He approached our car and asked what we wanted. We introduced ourselves and
informed him that we were on his property to conduct an inspection. Mr. Eder
asked, 'What is there to inspect?' At this point Mike Eder arrived and
joined in the conversation.
"4. Mike Eder stated that the company, being family owned and not having
any employees, was not within the coverage of the Act. We explained to
Mr. Eder that we believed that Public Law 95-164 applied to their mine.
"5. Mike Eder said, 'If I allow you in here now, you could come any
time and close us down. No one is coming in here to inspect us.' We asked
both brothers if they were denying us the right of entry. Both brothers
responded, 'Yes.'
u6. We explained to the Eders that we would be required to issue a
citation for their refusal of the statutory right of entry. The brothers
told us to issue the citation but that we would not be allowed on the property to inspect. They also would not accept the citation, and therefore had
to be mailed by certified mail to the company office.
"7.
We left the property at 8:25 A.M."

389

On November 2, 1978, a "consent judgment 11 was entered by United States
District Judge James E. Doyle, and approved and consented to b~ the parties
as evidenced by the signatures of their respective attorneys. The "consent
judgment" provides as follows:
This matter having come before the Court on the Complaint
filed in the captioned matter, and the parties having stipulated to the material allegations of the Complaint as evidenced by the signatures of their attorneys, and the Court
having considered the same; it is hereby ORDERED:
That Thomas Eder, Pat Eder, and Mike Eder, now doing
business as Sherman Lime and Rock Company, their agents and
employees, and all persons in active concert and participation with them be permanently enjoined as follows:
1. From refusing to admit authorized representatives of
the Secretary entry to, upon or through defendantsv mine;
2a From refusing to permit the inspection of the mine
by authorized representatives of the Secretary; and

3. From interfering with, hindering, and delaying the
Secretary of Labor or his authorized representatives in
carrying out the provisions of the Federal Mine Safety and
Health Act of 1977~ 30 u.s.c.A. 801-961 (1971 and Supp.
1978).
The Respondent appears to concede that its limestone quarry and related
milling operation falls within the definition of "coal or other mine" set
forth in section 3(h)(l) of the 1977 Mine Act. 4/ The Respondent argues
that the May 11, 1978, denial of entry was lawful because: (1) it is
not engaged in an activity in or affecting interstate commerce; (2) the 1977
Mine Act's coverage does not extend to small, family-owned and operated mines
4/

Section 3(h)(l) of the 1977 Mine Act provides as follows:
"'[C]oal or other mine' means (A) an area of land from which minerals
are extracted in nonliquid form or, if in liquid form, are extracted with
workers underground, (B) private ways and roads appurtenant to such area,
and (C) lands, excavations, underground passageways, shafts, slopes, tunnels
and workings, structures, facilities, equipment, machines, tools, or other
property including impoundments, retention dams, and tailings ponds, on the
surface or underground, used in, or to be used in, or resulting from, the
work of extracting such minerals from their natural deposts in nonliquid
form, or if in liquid form, with workers underground; or used in, or to be
used in, the milling of such minerals, or the work of preparing coal or
other minerals, and includes custom coal preparation facilities. In making
a determination of what constitutes mineral milling for purposes of this
Act, the Secretary shall give due consideration to the convenience of

390

in which the owners are the only miners; (3) nonconsensual safety and health
inspections conducted without a search warrant violate the right guaranteed
by the Fourth Amendment to the United States Constitution to be free from
unreasonable searches and seizures; and (4) active mining and milling operations were not underway at the time of the attempted inspection.
I conclude that the "consent judgment" entered by the United States
District Court for the Western District of Wisconsin on N~ember 2, 1978,
prevents the Respondent from raising these four defenses in the instant civil
penalty proceeding because, as a general rule, consent decrees in equity are
accorded res judicata effect. Safe Flight Instrument Corporation v. United
Control Corporation, 576 F.2d 1340 (9th Cir. 1978); Wallace Clark & Co., Inc.
v. Acheson Industries, Inc., 532 F.2d 846 (2nd Cir. 1976). Both the Federal
Court action which culminated in the entry of the nconsent judgment" and the
instant civil penalty proceeding arise from the same May 11, 1978, denial of
entry. The wording of the "consent judgment," on its face, reflects an
adjudication by the Court that the Respondent's mine and related milling
operation falls within the statutevs coverage and that the May 11, 1978,
denial of entry was unlawful. See Wallace Clark & Co., Inc. v. Acheson
Industries, Inc., supra (similarly worded consent decree characterized as an
adjudication).
The Respondent is clearly attempting to mount a collateral attack on the
District Court 1 s "consent judgment" in this proceeding.· "[A] collateral
attack is an attempt to avoid, defeat, or evade a judicial decree, or deny
its force and effect, in some incidental proceeding not provided by law for
the express purpose of attacking it." lB J. MOORE, FEDERAL PRACTICE~
, 0.407 at 934 (1980). The statute does not empower the Federal Mine Safety
and Health Review Connnission (Commission) to entertain a collateral attack
on a Federal District Court's section 108 injunction. Accordingly, the
Respondent's attempt to avoid, defeat, or evade the injunction, or to deny
the injunction's force and effect, in this proceeding must fail.
As an alternative basis for decision, I conclude that the four defenses
fail on the merits.
The Respondent maintains that it is not subject to the provisions of the
1977 Mine Act by arguing that its products do not enter commerce, nor do its
products or operations affect connnerce. 'Section 4 of the 1977 Mine Act provides that "[e]ach coal or other mine, the product of which enter commerce,
or the operations or products of which affect commerce, and each operator of
fn. 4 (continued)
administration resulting from the delegation to one Assistant Secretary
of all authority with respect to the health and safety of miners employed
at one physical establishment."
Operations such as the Respondent's have been held to fall within this
definition. Waukesha Lime and Stone Company, Inc., 3 FMSHRC 1702, 2 BNA
MSHC 1376,
CCR OSHD Par.
(1981).

391

such mine, and every miner in such mine shall be subject to the provisions of
this Act." In support of its position, the Respondent cites Morton v. Bloom,
373 F. Supp. 797 (W.D. Pa. 1973), and argues that none of its products cross
state lines.
The evidence shows that the Respondent's agricultural lime is sold wholly
within the State of Wisconsin to farmers who use it to neutralize soil acidity.
The Respondent delivers the agricultural lime to its customers, and has used
Ford, International, and Chevrolet trucks. The Respondent uses certain equipment, identified previously in this decision, in its operation; uses the telephone to contact its customers; and has made occasional uses of newspapers to
advertise its products. In view of the decisions in Marshall v. Anchorage
Plastering Company, No. 75-2747, 6 OSHC 1318 (9th Cir., filed February 2,
1978), and Marshall v. Bosack, 463 F. Supp. 800 (E.D. Pa. 1978)~ I conclude
that the Respondent's products or operations affect commerce within the meaning of section 4 of the 1977 Mine Act.
The Respondent 9 s reliance on Morton v. Bloom, supras is misplaced.
Bloom involved a one-man mine operation whose coal was sold "exclusively
within Pennsylvania.u 373 F. Supp. at 798. The Court held that this operation was not the type which Congress intended to cover when it enacted the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. § 801 ~~·
(1970). More significantly, the Court found itself unable to conclude "that
defendant 7 s one-man mine operation will substantially interfere with the
regulation of interstate commerce." 373 Fo Supp. at 7990 Even under the
standard set forth by the United States Supreme Court in Wickard v. Filburn 0
317 UoS. 111, 63 So Ct. 82, 87 L.Ed. 122 (1942), the Court determined that
the operation was "one of local character in which the implementation of
safety features required by the Act will not exert a substantial economic
effect on interstate commerce." 373 F. Supp. at 799.
A review of the Court's reasoning in Bloom indicates that it should not
be followed in the instant case. First, it appears that the Court failed to
properly consider all of the possible means by which the operation could have
affected commerce. The Court noted at one point in its opinion that the
"defendant does use some equipment in his mine which was manufactured outside
of Pennsylvania * * *," 373 F. Supp. at 798, but determined that this did not
bring the mine within the scope of the commerce clause since the purchase of
the equipment was "so limited that its use would be de minimis." 373 F. Supp.
at 798. This reasoning appears to run contrary to the United States Supreme
Court's determining in Mabee v. White Plains Publishing Co., 327 U.S. 178,
181, 66 S. Ct. 511, 90 L.Ed. 607 (1946), that the de minimis maxim should
not be applied to commerce clause cases absent a Congressional intent to make
a distinction on the basis of volume of business. The 1977 Mine Act does not
require the effect on commerce to be substantial before a mine can be held
to fall within the statute's coverage. See Marshall v. Bosack, supra.
Second, "[e]ven activity that is purely intrastate in character may be
regulated by Congress, where the activity, combined with like conduct by
others similarly situated, affects counnerce among the States or with foreign

392

nations." F)y v. United States, 421 U.S. 542, 547, 95 s. Ct. 1792, 44 L.Ed.
2d 363 (1975 • The Court in Bloom, does not appear to have considered the
effects which many small, owner-operated mine operations might collectively
have on commerce. The Court in Bosack considered these effects and determined that such operations or their products affect commerce.
The Respondent's second argument asserts that the 1977 Mine Act 1 s
coverage does not extend to small, family-owned and operated mines in which
the owners are the only miners. !!_/ This argument is without foundation
because owner-operated mines in which the owners are the only miners have
been held to be subject to the provisions of the 1977 Mine Act~ Marshall Vo
Sink, 614 F.2d 37, 38 n. 2 (4th Cir. 1980); Marshall v. Kraynak, 604 Fo2d
231 (3rd Cir. 1979); Marshall v. Kniseley Coal Company, 487 Fo Suppo 1376
(W.D. Pa. 1980); Marshall v. Donofrio, 465 F. Supp. 838 (E.D. Pao 1978);
Marshall v. Bosack, 463 F. Supp. 800 (E.D. Pa. 1978);
of the
Interior v. Shingara, 418 Fo Supp. 693 (M.D. Pa. 197
The Respondent's third argument asserts that nonconsensual safety anci
health inspections conducted without a search warrant violate the
guaranteed by the Fourth Amendment to the United States Constitution to be
free from unreasonable searches and seizures. This argument is rejectedn The
United States Supreme Court has held that warrantless safety and health
inspections authorized by section 103(a) of the 1977 Mine Act are constitutionally permissible and do not violate the Fourth Amendmento Donovan Vo
Dewey~ No. 80-901 (U.S. Supreme Court, filed June 17~ 198l)o See
9
Marshall Vo Sink, 614 F.2d 37 (4th Cir. 1980); Marshall Vo TheTeXoITne
Company~ 612 Fo2d 935 (5th Cir. 1980); Marshall Vo Nolichuckey Sand Company~
606 F.2d 693 (6th Cir. 1979); Marshall v. Stoudt's Ferry Preparation Company,
602 F.2d 589 (3rd Cir. 1979); Marshall v. Cedar Lake Sand & Gravel Company,
Inc., 480 F. Supp. 171 (E.D. Wis. 1979); Marshall v. Donofrio, 465 F. Supp.
838 (E.D. Pa. 1978), aff'd., 605 F.2d 1194 (3rd Cir. 1979).
Finally, the Respondent argues that the May 11, 1978~ denial of entry
was lawful because active mining and milling operations were no.t underway at
the time of the attempted inspection. This argument is without foundation
because it appears that the Respondent was performing maintenance work and
delivering agricultural lime to customers on May 11, 1978. In Marshall v.
Gilliam, 462 F. Supp. 133 (E.D. Mo. 1978), it was held that the cessation of
active mining operations in the pit area does not suspend the provisions of
the 1977 Mine Act when the mine operator continues to load and ship prev~ously
mined minerals from his stockpile. So long as the operator continues to
load and ship minerals from his stockpile, he may be inspected and regulated
under the 1977 Mine Act.
The Respondent also appears to argue that a civil penalty cannot be
imposed in this proceeding because a section 108(a)(l) injunction had not been
5/ Section 3(g) of the 1977 Mine Act defines the term "miner" as "any
individual working in a coal or other mine." Thomas, Patrick, and Michael
Eder each fall within this definition.

393

entered as of May 11, 1978. This argument is rejected. In Waukesha Lime and
Stone Company, Inc., 3 FMSHRC 17.02, 2 BNA MSHC 1376,
CCH OSHD par.
(1981), the Connnission hetd that a mine operator who denies an
authorized representative of the Secretary the right of entry for the purpose
of conducting an inspection connnits a violation of section 103(a) of the 1977
Mine Act for which a civil penalty must be assessed. The Commission expressly
rejected the argument that the Secretary's exclusive remedy is an injunction
·under section 108(a)(l), stating that the statute provides the Secretary with
dual remedies: "an administrative remedy under sections 104 and llO(a), and
a civil injunctive remedy under section 108(a)(l) .~· 3 FMSHRC at 1704.
In view of the foregoing, I conclude that the Respondent committed a
May 11, 1978, violation of section 103(a) of the 1977 Mine Act for which a
civil penalty must be assessed in this proceeding.
C.

Negligence of the Operator

Federal mine inspector Robert C. Goins attempted to conduct an inspection at the Respondent's Sherman Lime and Rock Quarry on October 6~ 1977,
pursuant to the provisions of the Federal Metal and Nonmetallic Mine Safety
Act of 1966, 30 u.s.c. § 721 et seq. (1966 Metal Act). 6/ The Respondent
refused to allow Inspector Goins~ conduct the inspection.
Mr. Thomas Eder testified that a "mutual agreement" existed amongst the
partners which predated May 11~ 1978, to refuse entry to Federal mine inspectors.
He further testified that he agreed with his sons' decision to refuse
entry to Inspectors Goins and Davidson.
In view of the foregoing, it is found that the May 11, 1978, denial of
entry was accompanied at least by ordinary negligence.
D.

Gravity of the Violation

A denial of entry is a serious violation of the 1977 Mine Act. One of
the principal purposes of inspections conducted pursuant to the provisions
of the 1977 Mine Act is to detect violations of the mandatory health and
safety standards and to determine whether imminent dangers exist, and to
order the abatement of any violations or imminent dangers found so as to
remove the associated hazards from the miners' work environment. Absent
entry to the mine, these salutary and Congressionally mandated objectives
cannot be achieved.
6/ The Federal Mine Safety and Health Amendments Act of 1977, Pub. L. No.
95-164, 91 STAT. §§ 1290-1322, amongst other things, enlarged the definition
of mine set forth in section 3(h) of the 1969 Coal Act to include those mines
previously covered by the 1966 Metal Act. s. Rep. No. 95-181, 95th Cong.,
1st Sess. (1977), reprinted in LEGISLATIVE HISTORY OF THE FEDERAL MINE SAFETY
AND HEALTH ACT OF 1977 at 647 (1978).

394

Additionally, Inspector Goins gave testimony which indicated that the
violation was serious, and his testimony on this point was not rebutted by
the Respondent. In fact, the Respondent appeared to concede during his closing
argument that "plenty" of safety factors needed correction.
In view of the foregoing, it is found that the violation was serious.
E.

Good Faith in Attempting Rapid Abatement

Mr. Thomas Eder testified that he is unwilling to comply with Judge
Doyle's November 2, 1978, order and allow Federal mine inspectors to
inspect his property. He testified that he would prohibit Federal mine
inspectors from conducting inspections, and indicated that he would
temporarily close the mine in order to avoid an inspectiono
F.

Size of the Operatorvs Business

The parties stipulated that the Respondent is a small, family-owned
business, and that the Sherman Lime and Rock Quarry produced approximately
2,000 tons in 19780
In view of the foregoing, it is found that the Respondent is small in
size.

G.

History of Previous Violations

The Secretary concedes that the Respondent has no history of previous
violations (Tr. 73).
R.

Effect of a Civil Penalty on the Operator's Ability to Remain
in Business

No evidence was presented to establish that the assessment of a civil
penalty in this proceeding will affect the operator's ability to remain in
business. ]_/ In Rall Coal Company, 1 IBMA 175, 79 I.D. 668, 1 BNA MSHC
1037, 1971-1973 CCR OSHD par. 15,380 (1972), the Commission's predecessor,
the Interior Board of Mine Operations Appeals, held that evidence relating
to whether a civil penalty will affect the operator's ability to remain in
business is within the operator's control, resulting in a rebuttable presumption that the operator's ability to continue in business will not be
affected by the assessment of a civil penalty.
7/ Business and tax records are the type of evidence necessary to establish
a claim of financial impairment. Hall Coal Company, 1 IBMA 175, 180, 79 I.D.
668, 1 BNA MSHC 1037, 1971-1973 CCH OSHD par. 15,380 (1972), see also, Davis
Coal Company, 2 FMSHRC 619, 1 BNA MSHC 2305, 1980 CCR OSHD par:-24,291 (1980)
(Lawson, c., dissenting).
·

395

Therefore, I find that a civil penalty otherwise properly assessed in
this proceeding will not impair the Respondent's ability to remain in
business.

VI.

Conclusions of Law

1. The Sherman Lime and Rock Company and its Sherman Lime and Rock
Quarry have been subject to the provisions of the 1977 Mine Act at all
times relevant to this proceeding.

2. Under the 1977 Mine Act, the Administrative Law judge has jurisdiction over the subject matter of, and the parties to, this proceeding.
3. Federal mine inspector Robert C. Goins was a duly authorized
representative of the Secretary of Labor at all times relevant to the
issuance of Citation Noe 287437.

4. The violation charged in Citation No. 287437 is found to have
occurred as alleged.
5. All of the conclusions of law set forth in Part V of this decision are reaffirmed and incorporated herein.

VII.

Proposed Findings of Fact and Conclusions of Law

The Respondent delivered a closing argwnent on March 12~ 1981. The
Secretary and the Respondent filed posthearing briefs on April 21, 198ls
and August 3, 1981, respectively. The Secretary filed a reply brief on
August 19, 1981. Such briefs and closing argument, insofar a they can
be considered to have contained proposed findings and conclusions, have
been considered fully, and except to the extent that such findings and
conclusions have been expressly or impliedly affirmed in this decision,
they are rejected on the ground that they are, in whole or in part,
contrary to the facts and law or because they are immaterial to the
decision in this case.

VIII.

Penalty Assessed

Upon consideration of the entire record in this case and the foregoing
findings of fact and conclusions of law, I find that the assessment of a
civil penalty is warranted as follows:
Citation No.

Date

Section

Penalty

287437

May 11, 1978

103(a)

$200

396

ORDER
The Respondent is ORDERED to pay a civil penalty in the amount of $200
within 30 days of the date of this decision.

John F. Cook
Administrative Law Judge
Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S. Department of
Labor, 230 South Dearborn Street, Chicago, IL 60604 (Certified Mail)
Thomas Eder, Partner, Sherman Lime and Rock Company~ Box 202, Elk Mound,
WI 54739 (Certified Mail)
Administrator for Metal and Nonmetal Mine Safety and Health~ U.S.
Department of Labor
Administrator for Coal Mine Safety and Health, U.S. Department of Labor
Standard Distribution

397

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

FEB 231982

FRANKLIN D JOHNSON,
Complainant
v.

COMPLAINT OF DISCHARGE,
DISCRIMINATION, OR
INTERFERENCE

EASTERN ASSOCIATED COAL CORP.,
Respondent

Docket No. WEVA 80-647-D
Keystone No. 2 Mine
DECISION

Appearances:

Thomas L. Butcher, Esq., Pineville, West Virginia$
for Complainant;
Sally S. Rock, Esq., Eastern Associated Coal Corporation, Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Melick

This case is before me upon the complaint of Franklin D. Johnson
under section 105(c)(3) of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. section 801 et seq., the "Act," alleging that Eastern
Associated Coal Corp. (Eastern) discharged him on March 20, 1980, in
violation of section 105(c)(l) of the Act. 1/ An evidentiary hearing
was held on Mr. Johnson's complaint in Beckley, West Virginia, on August
18 and 19, 1981. On January 18, 1982, the case was transferred to the
undersigned Judge and the parties agreed to submit the case to this
Judge for decision on the existing record.
Mr. Johnson can establish a prima facia violation of section
105(c)(l) of the Act if he proves by a preponderance of the evidence
that he has engaged in an activity protected by that section and that
the discharge of him was motivated in any part by that protected activity. Secretary of Labor ex rel David Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (1980), rev'd. on other grounds, Consolidation Coal Co. v.
Secretary, 663 F2d 1211 (3d Cir. 1981). Before his discharge, Johnson
was night shift foreman in the 3 right 3 west section of Eastern's
1/
Section 105(c)(l) of the Act provides in part as follows:
No
person shall discharge * * * or cause to be discharged * * * or otherwise interfere with the· exercise of the statutory rights ·of any miner
* * * in any coal * * * mine subject to this Act because such miner
* * * has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent
* * * at the coal * * * mine * * * or because of the exercise of such
miner * * * on behalf of himself or others of any statutory right
afforded by this Act."

398

Keystone No. 2 mine. He claims as protected activity alleged safety
complaints on or about March 15, 1980: (1) to Tyler Snow, the second
shift mine foreman and Johnson's immediate supervisor, expressing disapproval of orders by Snow to "cut 6 foot [roof] bolts into 4 foot bolts
and to put them up", and (2) to Snow and to general mine foreman Donzal
Morgan, complaining that the preceding day shift foreman, Don Moore, had
been leaving Johnson's workplace unsafe by "cutting places in the mine
too deep and too wide" and by leaving excessive coal accumulations.
Eastern denies that Johnson made any complaint to Snow about the shortening of roof bolts and maintains that although discussions during the
period March 10 to March 20, 1980, did, indeed, take place among Johnson, Snow, and Morgan, concerning the conditions and mining practices
where Johnson had been working, including the need for additional clean
up, rock dusting, and ventilation, these discussions did not constitute
"safety complaints" within the meaning of the Act.
Even assuming, arguendo, that the complaints were in fact made to
Tyler Snow and Donzal Morgan as alleged and even assuming, arguendo,
that those complains were protected activity under Section lOS(c)(l), I
do not find in this case any direct evidence, nor sufficient circumstantial evidence, to prove that the individual who made the decision to
discharge Johnson had any knowledge at that time of any such complaints.
I conclude therefore that Johnson's discharge could not have been motivated in any part by the alleged protected activity and that accordingly
there has been no violation of the Act. Pasula, supra.
I find that, ultimately, the decision to discharge Johnson was
independently made by the senior official of the Keystone No. 2 mine,
Mine Superintendent Wayne Jones. While there is no question that mine
foreman Donzal Morgan was the individual who informed Johnson of his
discharge, it is apparent from the credible evidence of record that
Morgan was essentially only carrying out the orders of the mine superintendent. According to Superintendent Jones, he told Morgan that
"Johnson has got to go * * * [i]f you don't do it, I will". It is
apparent that Jones made this decision spontaneously and independently
during a personal inspection of the mine on the morning of March 20th.
Jones and Eastern's safety inspector Dallas Peters were inspecting the
mine early that morning in anticipation of a government "blitz" inspection. According to Jones, the 3 right 3 west section, which had last
been worked by Johnson, was in "miserable" condition. It was "filthy
dirty" with excessive coal dust, loose coal accumulations, and insuf...:
ficient rock dusting. In particular, there was coal spillage up to the
bottom of the conveyor belt some 24 to 26 inches deep for a distance of
about 150 feet. In addition, Jones found seriously inadequate ventilation of the section in an area of well known methane problems. In
sum, Jones found the conditions left by Johnson so unsafe he concluded
there was an "imminent danger". The section was immediately closed
down, and it took more than a full shift of cleanup work to get it back

399

into production. Johnson does not deny that he left dangerous conditions in his section and that as foreman he was responsible for those
conditions. Indeed, he unequivocally admits that his section was neither adequately cleaned nor properly rock dusted and that he was accordingly in violation of company standards.
Superintendent Jones decided on the spot that Johnson would have to
go and recalled that he later directed Donzal Morgan to carry out that
decision. Morgan recalled discussing Johnson's status with Jones but
thought that he had made the decision to discharge Johnson by himself.
I find Morgan's testimony uncertain and equivocal in this regard and I
therefore find Jones' testimony the more persuasive. It is clear that
no other decision would in any event have been tolerated by Jones.
Since it is neither alleged nor proven that Jones had any knowledge of
Johnson's purported safety complaints to Snow and Morgan, I cannot find
that the discharge of Johnson by Jones was motivated in any part
such
complaints.
Even assuming, arguendo, that Donzal Morgan had participated in the
decision to discharge Johnson, it would have been untainted by any
improper motive. It is not alleged that Morgan had knowledge of the
complaints Johnson purportedly made to Snow about shortening roof bolts
and there is insufficient evidence, in any event, to support such a
claim. Johnson nevertheless initially maintained that he had complained
over a period of 3 months to both Snow and Morgan about the conditions
left in his section by the preceding day shift foreman,, Don Moore"
Under cross examination, Johnson did, however, retract and admit that he
had followed Moore on no more than five occasions within a period of
less than two weeks and actually complained only two or three times.
Johnson continues to maintain that on one of those occasions, he called
Snow to report that Moore had taken a 23 foot cut of coal in an entry -a deeper cut than normally allowed. Johnson allegedly reported that
Moore had failed to "timber it down to standard" so that it was unsafe
to work in the entry until his own crew had performed that task. On the
other occasions, he apparently called Snow because Moore had left the
section without adequate cleaning and rock dusting.
Neither Snow nor Morgan deny that they had from time to time
received such routine reports from Johnson, just as they had from other
foremen. It was the regular practice at the mine for the oncoming
section foreman to report such conditions to the shift foreman to
explain delays in beginning production and that is the context in which
Johnson's reports were taken. At no time did Johnson or his crew refuse
to work because of unsafe conditions. Inasmuch as it was the accepted
and routine practice at the mine for oncoming foremen to.make such calls
to their superiors in explaining their inability to begin immediate
production, that such calls were routinely made by other foremen without
any evidence of discrimination against them, and that the operator's
stated grounds for discharging Johnson have a legitimate and strong
factual basis in the record, I conclude that even if Morgan had participated in the decision to discharge Johnson, there is simply insufficient evidence to show that any such participation would have been
motivated in any part by the alleged protected activity.

400

Under the circumstances, Johnson has failed to sustain his burden
of proof under section lOS(c)(l) of the Act. Pasula, supra. The complaint herein is therefore denied· and the case ismissed.

Gary
Assistan7
Issued:
Distribution:

By certified mail.

Thomas L. Butcher, Esq., P.O. Box 995, Pineville, WV

24874

Sally S. Rock, Esq., ·Eastern Associated Coal Corporation, Koppers
Building~ Plttsburgh, PA
15219

401

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

FEB 261982

333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

v.

)
)
)
)
)
)

)

McDOWELL QUARRY COMPANY,
Respondent,

)
)
)

CIVIL PENALTY PROCEEDINGS
DOCKET NO. CENT 80-247-M
A/C No. 23-00759-05002 H
DOCKET NO. CENT 80-248-M
A/C No. 23-00759-05003
MINE:

Blinne Quarry

Appearances:
James R. Cato, Esq., Office of Tedrick A. Boush, Jr.,
Regional Solicitor, United States Department of Labor
Kansas City, Missouri
For the Petitiofier
William McDowell, appearing Pro Sei
For the Respondent
Before: Judge John J. Morris
DECISION
The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, (MSHA), charges respondent, McDowell Quarry Company, with
violating two regulations adopted under the Federal Mine Safety and Health
Act~ 30 U.S.C. 801 et
After notice to the parties a hearing on the merits was held in Rolla,
Missouri.
ISSUES
The issues are whether respondent violated the regulations.
violations occurred, what penalties, if any, are appropriate.

If any

CENT 80-247-M
In this case respondent is charged with violating Title 30, Code of
Federal Regulations, Section 56.9-3 . .!/

1/

The cited regulation provides as follows:

56.9-3 Mandatory.
adequate brakes.

Powered mobile equipment shall be provided with

402

SUMMARY OF THE EVIDENCK

On August 8, 1979, MSHA representative Willard .J. Graham inspected a
Terex loader at the McDowell QuRrry (Tr. 12-13). The loa(1ter was being
operated out of a pit. He checked the brakes by backing up the equipment
on a 10 foot inc1ine. The brakes would not hold the Terex (Tr. 24).
The inspector ordered the loader taken out of service because of the
hazards: an uneven roadway combined with a 10 percent grade. These
features could cause a situation of imminent danger to the workers at the
site (Tr. 23, 24, 26, 31-34).
It was the Terex operator's first day on the job (P2).
The MSHA
inspector credits the operator with stating that he hadn't "had any"
brakes. However, I believe McDowell's contrary version to the effect that
the Terex had brakes that morning. Initially, when confronted with the
operator's statement, McDowell immediately denied it. Further, I find his
direct testimony to be credible. He had run the loader himself that
morning and the brakes were adequate at that time (Tr, 29, 56-59),

Petitioner offered a flurry of evidence to the effect that William
McDowell, owner of the quarry, should have known the Terex brakes were
about to fail. I am not persuaded. MSHA inspector Howard Lucas testified
that Terex brakes can give 11 little warning" of a failur~ (Tr, 69), This
basically supports McDowell's view that brakes of this type can fail~ as
they did here, without any warning (Tr. 55) •
.In surmnary, the evidence supports the conclusion that the Terex mobile
equipment did not have adequate brakes as required by 30 C.F.R § 56.9-3.
The additional matters relating to William McDowell's personal knowledge of
the brakes failing does not avoid the violation but addresses the
negligence evaluation in assessing a civil penalty.
CIVIL PENALTY
Section llO(i) of the Act [30 u.s.c. 820(i)] provides as follows:
The Commission shall have authority to assess all civil penalt s
·provided in this Act. Iri assessing civil monetary penalties, the
Commission shall consider the operator's history of previous· viol at ions,
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.
Petitioner proposes a penalty by way of a special assessment in the
amount of $750. Petitioner's narrative findings rely to a large degree on
petitioner's perception of the negligence of managemtt!nt in failing
to isolate and correct this violation.
As previously indicated a maintenance and inspection program would not
have helped the quarry in learning of the defective brakes. I further

403

conclude the negligence of the quarry was not severe since the quarry owner
had operated the loader and found that the brakes were satisfactory on the
morning of the inspection.
Considering the statutory criteria, l deem th~t a civil penalty of
$75 is appropriate for this violation.
CENT 80-248-M

In this case respondent is charged with violating Title 30, Code of
Federal Regulations, Sect ion 56. 5-SOB Jj

2/ The cited regulation, including the permissible noise exposure 1n,
S6.5-50(a), provides; in part, as follows:
56.5-50 Mandatory. (a) No employee shall he per~itted an exposure
to noise in excess of that specified in the table belo~. Noise level
measurements shall be made using a sound level meter meeting specifications
for type 2 meters contained in American National Standards Institute (ANSI)
Standard Sl.4-1971. "General Purpose Sound Level Meters," approved April
27, 1971, which is hereby incorporated by reference and made a part hereof,
or by a dosimeter with similar accuracy, This puhlicat ion may be obtained
from· the American National Standards Institute, Inc., 1430 Broadway, New
York, New York 10018. or may be examined in any Metal and Nonmetal Mine
H~alth and Safety Distr
or Subdistrict Office of the Mine Safe
and
Heal th Administration.

PERMISSIBLE NOISE EXPOSURES
Duration per day
hours of exposure
8

Sound level dBA,
slow response
90

6

92

4
3
2
1 l/ 2
1
1/2
1/ 4 or less

95
97

100
102

105
110
115

No exposure shall exceed 115 dBA. Impact or impulsive noises shall not
exceed 140 dB, peak sound pressure level.
(b) When employees' exposure exceeds that listed in the above table,
feasible administrative or engineering controls shall be utilized. If such
controls fail to reduce exposure to within permissible levels, personal
protection equipment shall be provided and used to reduce sound levels to
within the levels of the table.

404

SUMMARY OF THR EVIDENCE

On July 20, 1979 MSHA representative Willard J. Graham sampled the
McDowell Quarry crusher operator for possible excessive noise exposure
(Tr. 70-71, 77).
The inspector used a dosimeter and a <lBA meter. The devices had been
properly calibrated and the inspector spent most of the day with the
crusher operator (Tr. 76, 79).
When the crusher was not crushing any rock the dBA meter showed a 90
to 94 level. When crushing rock the noise level ran 105 to 110 dRA. The
noise exposure was taken for 465 minutes and the exposure, according to the
dosimeter, was 300%. The operating manual interpolates 307% into 98 dBA
and 286% into 97.5 dBA (Tr. 81, 82).
The quarry abated this condition by build
a shack for the crusher
operator, Th
reduced the noise level a significant amount, to 39
percent (Tr. 83-86).
DISCUSSION

The uncontroverted evidence establishes a violation of 30 C.F.R.

56.5-50.
The quarry contends the proposed civil pena 1
of $40 is excessive
because the quarry was shut down for a time while the condition was 3hated,
I find that although the quarry abiated the conrlition I do not conclude that
the proposed penalty is excessive.
Based on the foregoing findings of fact and conclusions of law I enter
the fo 1 lowing
ORDER

CENT 80-247-M
affirmed.

1.

Citation 189161

2.

A civil penalty of $75 lS assessed.

lS

CENT 80-248-M

1.

Citation 189138

2.

The proposed civil penalty of $40

lS

affirmed.

/ .. · j._,..

lS

affirmed.

) l
' /
•,~ · ', {-,/ 71<.-~--.·John J. Morris
· A<lministrat i'.~e Law Judge
f'·A

i.,//>-1
.4·-?-·.
.' I
/·-1

',

405

//)-•

Distribution:
James R. Cato, Esq.
Office of the Solicitor
United States Department of Labor
911 Walnut Street, Room 2106
Kansas City, Missouri 64106
Mr. William McDowell
McDowell Quarry Company
Edgar Star Route
Box 368
Rolla, Missouri 65401

406

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

February 26, 1982
Civil Penalty Proceeding

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

Docket No. LAKE 80-387
A/O No. 33-00968-03059

v.
Nelms No. 2 Mine
YOUGHIOGHENY AND OHIO
COAL COMPANY,
·Respondent
DECISION
Appearances:

Marcella L. Thompson, Esq., Office of the
Solicitor, U.S. Department of Labor,
Cleveland, Ohio, for Petitioner, MSHA;
Robert C. Kata, Esq., Youghiogheny and
Ohio Coal Company, St. Clairsvi
, Ohio
for Respondent, Youghiogheny and Ohio
Coal Company.

Before:

Judge Merlin

This case is a petition for the assessment of a civil
penalty filed by the Government against Youghiogheny and
Ohio Coal Company for an alleged violation of 30 C.F.R.
75.200. A hearing was held on December 15, 1981.
.
.
At the hearing the parties agreed to the following
stipulations:
.

·,

(1) The subject mine constitutes a coal
mine, the products of which enter commerce or
the operations or products of which affect
commerce. Respondent operates and at all times
pertinent to the citation at issue, operated
the subject mine.
Respondent and every miner
employed in this mine, are subject to the
provisions of the 1977 Act.
(2) Jurisdiction of this case vests in
the Federal Mine Safety and Health Review
Commission.

407

(3)
During 1979 this mine produced
493,555 tons of coal. Respondent company
produced one million three hundred and
forty-five thousand, six hundred and
thirty-one tons of coal, during the year
1979.
(Based upon this factor, I found that
operator is large in size.)
(4) Any penalty assessed herein, will.
not affect respondent's ability to continue
in business.
(5) The inspector is, and at all times
pertinent hereto was an authorized representative
of the Secretary of Labor.
(6)
The operator's history of prior
violations is moderate.
(7)
The alleged violation was abated in
good faith.
(8) All witnesses who will testify are
accepted generally as experts in Mine Health
and Safety.
The subject citation dated May 27, 1980, charges a
violation of 30 C.F.R. 75.200 under the following circumstances:
The company's approved roof control plan
was not being complied with in No. 29 room of the
7 west off 2 south working section which the
continuous mining machine was operating. The mine
roof was broken from 2 to 10 inches in thickness
for a distance of 18 feet and 8 feet in width in
which roof mats were being used and the area had
not been center bolted or other supports installed
where subnormal roof conditions existed.
The citation was abated in fifteen minutes.
A modification to the citation was issued on June 3,
1980, as follows:
Citation No. 0783977 is being modified
to show that the company had installed 3 additional roof mats as additional support in the
area; however, the roof was still not adequately
supported in that the broken area was hanging down

408

and resting on the roof mats in the middle part of
that entry. This citation was terminated on 5-27-80.
The operator's roof control plan provides in pertinent
part:
The roof support specified is considered
the minimum required. Additi0~al bolts or
other support will be installed where
conditions require.
The cited roof is a rectangular area of the dimensions
set forth in the citation defined by a crack running all the
way around and hanging downo
Part of one side of this area
is adjacent to one where a roof fall previously occurred
(Tro 15, Op" Exho No" l)o Under the roof control plan roof
mats are required to be placed on five-foot centers (Tro
16)
In the affected area three extra mats were installed
so that the mats were on 2 1/2 foot centers (Tro 16)
The
inspector testified that when he originally issued the
citation he did not realize that additional roof mats had
been installed and that to take account of this, the modification was subsequently issued (Tro 24-25, 27-31) o At the
hearing however, the inspector adhered to the position that
the roof mats were not additional supports within the meaning
of the roof control plan and that therefore, the plan was
violated.
I believe the inspector is wrong in this respecto
The roof control plan quoted above, requires "additional
bolts or other support'' where conditions require.
The plan
does not specify what other support should be used and more
importantly, it does not rule out the use of roof mats. On
the contrary, the general direction that roof bolts or other
support are allowable indicates that mats are permissible.
If the plan is to prohibit or require use of certain types
of support under certain circumstances, the plan must say
so. Not only does the plan not have any such provision, but
the inspector and the operator's section foreman testified
that the plan requires center bolts where rooms are going to
be left standing over an extended period of time which was
not the situation here (Tr. 41, 55). The fact that the plan
explicitly mandates center bolts in certain cases demonstrates
that where, as here, nothing is said, the plan cannot be
interpreted to require such bolts~
0

o

The operator adopts a roof control plan and MSHA approves
it. An inspector cannot, after the fact, read into the plan
things which are not there and which the operator cannot be
expected to know. Accordingly, I conclude there was no
violation of the roof control plan.

409

Over and above the requirements of the roof control
plan there is a general duty placed upon the operator to
insure that the roof be adequately supported. On this
matter the evidence is in conflict. The inspector expressed
the view that because the mats did not have center bolts
they did not support the middle of the entry (Tr. 32, 35).
The inspector admitted that his determination that the mats
were inadequate was a judgement call but the basis for that
call is not apparent since he did not know how much weight
was involved in the roof area covered by the mats (Tr. 36-37,
38-39). The operator's section foreman was of the opinion
that the roof mats did sufficiently support the midd
of the
entry (Tr. 52-54). The section foreman had one of his men
test the roof and determined that only the immediate roof was
broken and he stated that since the roof was hanging near the
left side towards the adjacent fall area, not in the middle
the stress was on the left side not in the middle (Tr. 54,
56-58, 60).
I find the section foreman's evidence persuasive.
The section foreman 1 s evidence is not the only evidence
in favor of the operator. The most persuasive evidence of
record is that of a civil engineer who testified that
according to an MSHA report (Op. Exh. No. 3) the roof mats
could bear a 9,000 lb. load and that
the straps were on
foot centers the stress on the center of each strap
would be 5700 lbs. and that therefore, in his opinion the
strap would hold in the worst possible situation (Tr. 67).
The engineer also explained how he determined the weight was
5700 lbs. (Tr. 80). As already noted, the inspector did not
know what the weight was (Tr. 36-37). A safety factor of
1.5 to 2 is considered safe and the factor would be 1.6 on
five foot centers (Tr. 68). Because of the additional
straps, 2 1/2 foot centers were present here which would
increase the safety factor.
The civil engineer thought
safety mats installed by the operator were adequate to hold
this roof and that center bolts were not necessary (Tr. 78).
He stated straps were better than center bolts because as
long as the strap is pulled tight at the lip of the fall, it
would prevent material from falling off and thereby provide
an added measure of safety (Tr. 81). The Solicitor did not
cross-examine the engineer and did not produce any contrary
evidence in rebuttal.
I find the engineer's testimony
convincing and accept it.
Based upon the testimony of the operator's witnesses
I conclude the roof was adequately supported and that there
was no violation of the mandatory standard.

410

ORDER
In light of the foregoing, it is ORDERED that the
Citation be VACATED and that the petition for assessment of
civil penalty be DISMISSED.

\

\
Paul Merlin
Chief Administrative Law Judge

Distribution:

Certified Mail.

Marcella L. Thompson, Esq., Office of the Solicitor,
U.S. Department of Labor, 881 Federal Office Bldgo,
1240 E. Ninth St.v Cleveland, OH 44199
Robert C. Kota, Esq., Youghiogheny and Ohio Coal
Company, P. O. Box 1000, St. Clairsville, OH 43950

411

•v.s. GOVERNMENT PRINTING OFFICE I 1982 0-,61-638/4367