MARCH 1991
COMMISSION DECISIONS
03-01-91
03-07-91
03-08-91
03--12-91
03-20-91

Sec. of Labor on behalf of Clyde Cole v.
Canyon Country Enterprises
Jet Concrete, Inc.
Ricky Davis, employed by Wampler Bros. Coal
Stenson Begay v. Liggett Industries, Inc.
Donald Northcutt, Gene Myers, Ted Eberle v.
Ideal Basic Industries, Inc.

WEST 90-165-DM

Pg. 317

WEST 90-347-M
KENT 90-432
CENT 88-126-D
CENT 89-162-DM

Pg. 320
Pg. 323
Pg. 326
Pg. 327

SE
90-117-M
SE
90-126
SE
90-125
WEST 88-202-M
LAKE 91-2
KENT 89-242-R
WEST 90-72-M
CENT 90-38
CENT 91-26
KENT 89-13-D
LAKE 90-107-D
CENT 90-147-M

Pg.
Pg.
Pg.
Pg.

WEVA 90-160
WEVA 90-303
WEVA 90-307
PENN 90-249-DM

Pg. 432
Pg. 471
Pg. 473
Pg. 476

WEVA 90-166
KENT 91-78-D
KENT 89-147-D
KENT 90-442
PENN 90-258
SE
90-79-M
VA
90-51-D
WEVA 89-198

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

WEST 90-320
WEVA 90-171

Pg. 511

ADMINISTRATIVE LAW JUDGE DECISIONS
03-06-91
03-06-91
03-06-91
03-06-91
03-08-91
03-08-91
03-11-91
03-11-91
03-12-91
03-12-91
03-13-91
03-15-91
03-15-91
03-15-91
03-15-91
03-18-91
03-19-91
03-19-91
03-19-91
03-28-91
03-28-91
03-28-91
03-28-91
03-29-91

Mar-Land Industrial Contractor
Drummond Company, Inc.
Drummond Company, Inc.
Ideal Cement Company
Zeigler Coal Company
Gatliff Coal Company, Inc.
Transit Mixed Concrete Co.
The Pittsburg & Midway Coal Mining Co.
Texas Utilities Mining Company
David Thomas &
Isaacs v. Ampak Mining
Kenneth L. Chandler v. Zeigler Coal Co.
Carl Strating, Jinks Coleman, employed by
South Texas Aggregates
Mack Energy Company
Consolidation Coal Company
Consolidation Coal Company
Sec. Labor on behalf of William McDonald v.
Al Hamilton Contracting Co.
Bethel Fuels Incorporated
Lonnie Jones v. Deer Path Corporation
Arnold R. Sharp v.
Elk Creek Coal Co.
Fuel Company
Keystone Coal
Corporation
Caldwell Stone Company, Inc.
C. Turner v. New World Mining Inc.
Eastern Associated Coal Corporation

Pg.

Pg.
Pg.
Pg.
Pg.

Pg.
Pg.
Pg.

333
339
356
359
367
368
383
385
387
389
391
425

4 78
480
481
488
492
493
503
508

ADMINISTRATIVE LAW JUDGE ORDERS
03-19-91
03-19-91

Utah Power and Li
Company
Southern Ohio Coal Company

Pg. 521

MARCH 1991
Review was granted in the following cases during the month of March:
Secretary of Labor, MSHA v. Explosives Technologies International, Inc.,
Docket No. CENT 90-95-M. (Judge Broderick, January 24, 1991)
Secretary of Labor, MSHA v. Jet Concrete, Inc., Docket No. WEST 90-347-M.
(Chief
Merlin, Default Decision, February 14, 1991)
Secretary of Labor, MSHA v. Ricky Davis, employed by Wampler Brothers
Coal Co., Docket No. KENT 90-432. (Chief
Merlin, Default
Decision, February 13, 1991)
Charles T. Smith v. KEM Coal Company, Docket No. KENT 90-30-D.
Fauver, January 31, 1991)

(Judge

Ronny Boswell v. National Cement Company, Docket No. SE 90-112-M.
(Judge Maurer, February 7, 1991)
Secretary of Labor, MSHA v. Warren Steen Construction, etc., Docket
No. LAKE 89-68-M, LAKE 89-93-M. (Judge Broderick, February 19, 1991)
Review was denied in the

of March:

Secretary of Labor on behalf of Clyde Cole v. Canyon Country Enterprises,
Docket No. WEST 90-165-DM. (Judge Lasher, January 22, 1991)

COMMISSION DECISIONS

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

SECRETARY OF LABOR,
MINE SAFETY & HEALTH
ADMINISTRATION (MSHA)
On behalf of CLYDE

20006

March 1, 1991

c. COLE
Docket No. WEST 90-165-DM

v.
CANYON COUNTRY ENTERPRISES
d/b/a CURTIS SAND AND GRAVEL,
a corporation
ORDER
A petition for-discretionary review has been filed on behalf
of Complainant Clyde C. Cole seeking review of a decision issued by
Commission Administrative Law Judge Michael A. Lasher on January
22, 1991.
In that decision, the judge granted the Secretary of
Labor's motion to withdraw her complaint of discrimination filed on
Mr. Cole / s behalf under section 105 ( c) ( 2) of the Federal Mine
Saiety and Health Act of 1977, 30 u.s.c. § 8l5(c)(2), and the judge
dis~issed the section l05(c)(2) complaint with prejudice.
As grounds for his granting of the motion to withdraw and his
dismissal of the section l05(c)(2) complaint, the judge indicated
that upon completion of discovery in this matter, the Secretary
determined t~at no violation of section l05(c) of the Mine Act had
occurred.
The judge further declined a request by David P.
Koppelman, Esq., International Union of Operating Engineers, Local
12 9 AFL-CIO, attorney for Mr. Cole, to substitute Mr. Cole in lieu
of the Secretary as sole complainant. In so declining, the judge
stated, 11 such rights as Mr. Cole has would appear to be provided in
section l05(c)(3) of the [Mine] Act." The judge's disposition of
this matter is correct.
The statutory scheme devised by .Congress for addressing
minerst complaints of discrimination provides that when the
Secretary determines that no discriminatory violation has occurred,
the miner
may
still
pursue
his
individual
complaint
of
discrimination pursuant to section 105(c)(3) of the Act. 1 "The
Section 105(c)(3) provides, in part~
Secretary,
upon
investigation,
"If
the
determines
that
the
provisions
of
this
subsection
have
not
been violated,
the
complainant shall have the right, within 30
days
of
notice
of
the
Secretary's

317

presence of section 105(c)(3) within the statutory scheme
establishes the appropriate recourse Congress intended the miner to
have under the Mine Act", when the Secretary determines that a
complaint should not be filed or, as here, should be withdrawn.
Robert K. Roland v. Secretary of Labor, 7 FMSHRC 630, 635-636 (May
1985).
See also s. Rep. No. 181, 95th Cong. , 1st Sess. 36-37
(1977), reprinted in Senate Subcommittee on Labor, Committee on
Human Resources, Legislative History of the Federal Mine Safety and
Health Act of 1977, at 624-625 (1978).
The appropriate procedural route in this case is the one
indicated by the judge, i.e., the complainant's filing of a
complaint under section 105(c)(3).
Under the circumstances
presented here, we deem the filing of the petition for
discretionary review as suspending the 30-day time limit applicable
to the filing of individual complaints under section 105(c)(3).
Should complainant wish to pursue this matter, he may do so by
filing a section 105(c)(3) complaint within 30 days after receipt
of this order.
The record in the section l05(c)(2) case may be
noticed judicially in any such new proceeding.
Accordingly, unger the' circumstances,
discretionary review~is denied.

the

petition

Ri~ v. Backley,

t ML£~

Arle~L'e
Holen,)Commissioner

'. •. -'- '- -\., lLk ~<,,.,•

,

,

:,...J
~

I

~

~

'

~

'

'

L. Clair Nelson, Commissioner

determination, to file an action in his own
behalf
before
the
Commission,
charging
discrimination or interference in violation of
[section 105(c)(l)J."
30 u.s.c.

§

815(c)(3).

318

for

Distribution
David P. Koppelman, Esq.
I.U.O.E., Local No. 12
150 East Corson St.
P.O. Box 7109
Pasadena, California 91109
Scott H. Dunham, Esq.
O'Melveny & Myers
400 South Hope Street
Los Angeles, California

30071

Susanne Lewald, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, California 94105
Administrative Law-Judge Michael Lasher
Federal Mine Safety and Health Review Commission
280 Federal Bldg.
1244 Speer Blvd.
Denver, Colorado 80204

319

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

March 7, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEST 90-347-M

v.

JET CONCRETE, INC.
BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seg. (1988)("Mine Act"). On February
14, 1991, Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent Jet Concrete, Inc. ("Jet") in default for
failure to answer the Secretary of Labor's civil penalty proposal and the
judge's order to show cause. The judge assessed Jet a civil penalty of
$3,000, as proposed by the Secretary. For the reasons explained below, we
vacate the judge's default order and remand for further proceedings.
The judge's jurisdiction in this proceeding terminated when his default
order was issued on February 14, 1991. 29 C.F.R. § 2700.65(c). Under the
Mine Act and the Commission's procedural rules, once a judge's decision has
been issued, relief from the decision may be sought by filing with the
Commission a petition for discretionary review within 30 days of the decision.
30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). By letter to Judge Merlin,
filed February 25, 1991, Jet asserts that it filed its answer with Commission
Administrative Law Judge John Morris. Under the circumstances, we deem Jet's
February 25th letter to constitute a timely petition for review, requesting
relief from the judge's default order.
g_,_g_,_, Middle States Resources.
Inc., 10 FMSHRC 1130 (September 1988).
The record discloses that an inspector of the Department of Labor's Mine
Safety and Health Administration ("MSHA") issued Jet ten withdrawal orders
alleging violations of various safety regulations. Upon preliminary
notification by MSHA of the civil penalties proposed for these alleged
violations, Jet filed a "Blue Card" request for a hearing before this
independent Commission. On October 15, 1990, counsel for the Secretary filed
a proposal for civil penalty assessments. When no answer to the penalty
proposal was filed, Judge Merlin issued a show cause order on November 28,
1990, directing Jet to file an answer within 30 days or show good reason for
the failure to do so. Under the Commission's rules of procedure, the party

320

against whom a penalty is sought must file an answer with the Commission
within 30 days after service of the proposal for penalty. 29 C.F.R.
§ 2700.S(b) & .28.
In its February 25th letter Jet states that, in fact, it filed an answer
which was dated December 19, 1990, and addressed to Judge Morris. Jet submits
that this case was assigned to Judge Morris in an order dated November 1,
1990, and, thus, that it believed all correspondence was to be sent to Judge
Morris. However, the order of assignment to Judge Morris referred to by Jet
does not involve Docket No. WEST 90-347-M, the present proceeding, but rather
an unrelated proceeding involving Jet, Docket Nos. WEST 90-273-M and WEST 90274-M.
It appears that Jet, proceeding without benefit of counsel, may have
confused the roles of Judge Merlin and Judge Morris in this proceeding. It
also appears that Jet may have responded, or attempted to respond in a timely
manner, to Judge Merlin's show cause order. The Commission has generally
afforded a party relief from default where it appears that the party's actions
were due to inadvertence, mistake, or excusable neglect. See, ~. Amber
Coal Company, 11 FMSHRC 131, 132 (February 1989). In light of these
considerations, we conclude that the operator should have the opportunity to
present its position to~the judge, who shall determine whether ultimate relief
from default is warranted.
~.Hickory Coal Co., 12~FMSHRC 1201, 1202
(June 1990).

321

For the foregoing reasons, we grant Jet's petition for discretionary
review, vacate the judge's default order and civil penalty assessment, and
remand this matter to the judge for appropriate proceedings.
is reminded
to file documents connected with this proceeding with the judge and to serve
counsel for the Secretary with copies of any of its filings.
29 C.F.R.
§§ 2700.S(b), 2700.7.

·Richard V. Backley, Acting Chairman

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribut.ion
Duane S. Frehner
Jet Concrete Inc.
112 W. Brooks Avenue
North Las Vegas, Nevada

39030

Catherine R. Lazuran, Esq.
Office of the Solicitor
U.S. Department of Labor
71 Stevenson St., Suite 1110
San Francisco, CA 94105
Dennis D. Clark,
Office of the Solicitor
U.S. Department of Labor
~015 Wilson Blvd.
Arlingt.on, VA 22203
Chief Administrative Law Judge Paul ~~rlin
Federal :'.-line Safety & Health Review Commission
1730 K Street. ~.w .. Suite 600
Washington, D.C. 20006

322

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1730 K STREET NW, 6TH FLOOR
WASHINGTON, 0.C. 20006

March 8, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. KENT 90-432

RICKY DAVIS, Employed by
WAMPLER BROTHERS COAL CO., INC.

BEFORE:

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

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"). On February
13, 1991, Commission Chief Administrative Law Judge Paul Merlin issued an
Order of Default finding respondent Ricky Davis ("Davis"), employed by
Wampler Brothers Coal Co., Inc., in default for failure to answer the
Secretary of Labor's civil penalty proposal and the judge's order co show
cause. Davis had been cited under section llO(c) of the Mine Act, 30 U.S.C.
§ 820(c), for, allegedly, knowingly ordering a violation of 30 C.F.R.
§ 75.1701.
The judge assessed the civil penalty of $800 proposed by the
Secretary. For the reasons that follow, we vacate the default order and
remand this case for further proceedings.
On February 21, 1991, the Commission received correspondence from
Davis in which he states that he had received a "letter" informing him that
he had failed to respond to a "letter," and directing him to pay $800.
Davis asserts that he had mailed a response on December 17, 1990, to J.
Philip Smith, an attorney with the Department of Labor's Regional
Solicitor's Office in Arlington, Virginia. Mr. Smith has informed the
Commission's Docket Office that his files do not contain a response from
Davis.
The judge's jurisdiction in this proceeding terminated when his default
order was issued on February 13, 1991
29 C.F.R. § 2700.65(c). Under the
Mine Act and the Commission's procedural rules, once a judge's decision has
issued, relief from the decision may be sought by filing with the Commission
a petition for discretionary review within 30 days of the decision. 30
U.S.C. 823(d)(2); 29 G.F.R. § 2700.70(a). Here, Davis's letter, received by
the Commission on February 21, 1991, seeks relief from the judge's default
order. We will treat it as constituting a timely petition for discretionary
review. See,~. Middle States Resources. Inc., 10 FMSHRC 1130 (September
1988).

323

The record discloses that upon preliminary notification by MSHA of the
civil penalty proposed for his alleged violation, Davis filed a "Blue Card"
request for a hearing before this independent Commission. On October 5,
1990, counsel for the Secretary served Davis with the Secretary's penalty
proposal. When no answer to the penalty proposal was filed, the judge, on
November 28, 1990, issued a show cause order directing Davis to file an
answer within 30 days or show good cause for his failure to do so. As
noted, Davis alleges that he mailed a response on December 17, 1990, to
Smith in the Solicitor's office.
Under the Commission's rules of
procedure, the party against whom the penalty is sought must file an answer
with the Commission within 30 days after service of the penalty proposal.
29 C.F.R. § 2700.S(b) & .28.
It appears that Davis, proceeding without benefit of counsel, may have
confused the roles of the Commission and the Department of Labor in this
adjudicatory proceeding. It also appears that Davis may have timely
responded, or attempted to respond, to the judge's show cause order. In
accordance with the standards set forth in Fed. R. Civ. P. 60(b)(l), the
Commission will afford relief from default upon a showing of inadvertence,
mistake, or excusable neglect. See,~. Amber Coal Co., 11 FMSHRC 131,
132 (February 1989).
On the basis of the present record, we are unable to evaluate the
merits of Davis' position but we will permit Davis the opportunity to
present his position to the judge, who shall determine whether final relief
from the default order is warranted. See,~. Hickory Coal Co., 12 FMSHRC
1201, 1202 (June 1990).

324

Accordingly, we vacate the judge's default order and remand this
matter for further proceedings. Davis is reminded to file all documents and
correspondence with the Commission, and to serve the Regional Solicitor's
Office with copies of all such filings. 29 C.F.R. §§ 2700.S(b) & .7.

/"')

,;/

,,c;;C/0c:At,::r?~/lt?
Richard V. Backley, Acting Chairman

L. Clair Nelson, Commissioner

Distribution
Ricky Davis
General Delivery
Shelby Gap. Kentucky

41563

J. Philip Smith,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

325

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

20006

:·larch 12, 1991
STENSON BEGAY
Docket No. CENT 88-126-D

v.

LIGGETT INDUSTRIES, INC.

BEFORE:

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

BY THE COMMISSION:
This discrimination proceeding arising under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988), is on remand to the
Commission from an opinion of the United States Court of Appeals for the
Tenth Circuit affirming the decision of Commission Administrative Law Judge
Roy J. Maurer in this matter. Liggett Indus .. Inc. v. fMSHRC, ~- F.2d ~-'
No. 89-9546 (January 9, 1991), aff'g, 11 FMSHRC 887 (May 1989)(ALJ). (The
judge's decision became a final decision of the Commission through operation
of the statute. 30 U.S.C. § 823(d)(l).) In its decision, the Court
indicated that counsel for complainant Stenson Begay had requested the Court
to award him attorney fees for legal services rendered in the Court
proceedings and had argued to the Court that such fees are statutorily
mandated. Slip op. at 7. The Court stated, however, that this "matter
should first be considered by the AL.J." Id.
In accordance with the Court's order to the Commission, this matter is
remanded to Judge Maurer for further appropriate p~oceed~s consistent with
the Court's opinion.

,./- /

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~

Richard V. Backley, Acting Chairman
/

Joyce A Doyle

Commissioner

&.1 :lit~

Arlene Holeq, Commissioner

'--:i-JI '
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L. Clair Nelson, Commissioner

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326

0

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

March 20, 1991
DONALD NORTHCUTT, GENE M'tERS,
and TED EBERLE
Docket No. CENT 89-162-DM

v.

IDEAL BASIC INDUSTRIES, INC.
BEFORE: Backley, Acting Chairman; Doyle, Holen and Nelson, Commissioners

This discriminatJon proceeding under the Federal Mine Health and
Safety Act of 1977, 30 U.S.C. § 801 et seg. (1988)(the "Mine Act" or "Act")
is before the Commission on interlocutory review.
On January 31, 1991, the petition for interlocutory review filed on
behalf of Ideal Industries, Inc., ("Ideal") was granted. 1 In its
petition, Ideal seeks review of the December 7, 1990 Order of Commission
Administrative Law Judge John J. Morris. Specifically, Ideal urges that the
final disposition of the proceeding will materially advance upon immediate
review of the following issues: (1) Does a miner's claim that he was
discharged in retaliation for filing a workers' compensation claim state a
claim for which relief can be granted under section 105(c) of the Act, and
if so, (2) Is this claim barred under the doctrine of~ judicata where the
miner has already settled and dismissed with prejudice his workers'
compensation retaliatory claim in federal district court. Subsequent to
filing the instant petition, Ideal received the December 14, 1990 Order of
the judge, which purported to set forth the scope of the issues pending in
the subject section 105(c)(3) action. Ideal filed an amendment to its
petition seeking Commission clarification of the issues pending before the
judge. Amendment at 1.
For the reasons that follow, we decline to rule that, as a matter of
law, the filing of a workers' compensation claim fails to constitute a
protected activity under section 105(c) of the Act; we remand, for
reconsideration the issue of whether the doctrine of res judicata bars the
subject complaint of discharge; and we clarify the specific issues pending
before the judge.
We have reviewed the record in this case, and the record of the
predicate section 105(c)(2) discrimination case docketed at No. CENT
88-142-D. We conclude that it is necessary, at this juncture, to set forth
1

The petition was filed by Holnam, Inc., described by counsel as
"successor by operation of law to Ideal Basic Industries, Inc .... "

327

the specific issues pending before the judge.
The instant action has been filed pursuant to section 105(c)(3) of the
Act. To be valid a complaint thereunder must allege violations that were
investigated by the Secretary of Labor and were determined by the Secretary
not to be violative of section lOS(c)(l) of the Act.
In this case the clearest indication of the issues investigated by the
Secretary is contained in the predicate section 105(c)(2) complaint of
discrimination and discharge filed by the Secretary on behalf of the
complainants and others on August 23, 1988 and docketed at No. CENT 88-142D. 2 In that complaint, the Secretary alleged that the complainants
engaged in two forms of protected activity: (1) prior to October 16, 1987,
complainants filed Oklahoma State workers' compensation claims based on
disabilities allegedly caused by hazardous conditions at the Ada Quarry and
Plant, and (2) complainants made safety complaints to supervisors and agents
of Ideal. The Secretary also alleged three separate adverse actions taken
by Ideal: (1) Ideal discriminated against the complainants by requiring them
to wear respirators and hearing protection devices that were different from
those required of other miners performing the same job, and in more areas of
the mine than other miners, (2) ,complainants were disciplined for failure to
comply with such dispa~ate requirements and (3) that Ideal's "discrimination
and, or discharge of complainants was in violation of section 105(c)(l) of
the Act." Complaint at 3.
Thus, the complaint filed by the Secretary on behalf of the
complainant miners alleged illegal discharges because the complainants
engaged in the two aforementioned protected activities. Although the
Secretary failed to set forth any details regarding the discharges, the
record discloses that discharges allegedly occurred in April of 1988. Order
of December 7, 1990 at 4.
On July 28, 1989, the Secretary and Ideal filed a joint "motion to
approve settlement agreement and motion to withdraw." In that document,
Ideal effectively admitted engaging in the first two of the three alleged
adverse actions charged by the Secretary. In that same motion, the
Secretary effectively determined that no discriminatory discharge violation
had occurred. The motion contained the following:
The Secretary of Labor, after further review and
evaluation, has determined that there is an
insufficient basis for the Secretary to proceed with
the claim of discriminatory discharge of any of the
complainants.
Motion at 4.

2

The complaint was amended on November 4, 1988. However, the amendment
contained therein related only to the amount of civil penalty sought by the
Secretary.

328

In his Decision Approving Settlement, on August 3, 1989, Commission
Administrative Law Judge Michael A. Lasher Jr., properly construed the
Secretary's withdrawal of the allegation of discriminatory discharge to have
the provisions contained in section 105(c)(3) of the Act:
(Complainant and Respondent have agreed that the
Secretary of Labor's withdrawal shall not prejudice
the rights of the individual claimants to pursue,
pursuant to 30 U.S.C. § 815(c)(3) and 29 C.F.R.
§ 2700.40(b), 4l(b) and 42(a), their allegations of
discriminatory
).
Decision at 2.
Consequently, at the conclusion of the predicate section 105(c)(2)
action filed by the Secretary on behalf of the complainants (No. CENT 88142-D), only one of the three allegations of violation of section lOS(c)(l)
survived. Specifically, the surviving allegation was that: complainants
were illegally discharged because they had engaged in two protected
activities: (1) filing workers' compensation claims based upon disabilities
allegedly caused by hazardous condttions at the Ada Quarry and Plant, and
(2) making safety compl~iRts to supervisors and agents of Ideal.
Accordingly, this allegation of violation was the sole allegation which
could properly have been the subject of a complaint filed pursuant to
section 105(c)(3) of the Act.
After review of the subject section 105(c)(3) complaint filed
September 11, 1989, and complainants' statement of issues filed February 12,
1990, in response to Judge Morris' Order of January 23, 1990, we conclude
that the case presently pending before Judge Morris does contain the very
same allegation of illegal discharge initially filed by the Secretary, i.e.,
that the complainants were
discharged in violation of section
lOS(c)(l) because complainants engaged in two protected activities: (1)
fil
workers' compensation claims based on disabilities allegedly caused
by hazardous conditions at the Ada Quarry and Plant, and (2) making safety
complaints to supervisors and
of Ideal.
To the extent that the record in this matter contains conclusions,
or orders by the judge that conflict with the foregoing, they are
hereby vacated.
Protected Activity
Ideal argues that a miner's claim that he was discharged in
retaliation for filing workers' compensation claims fails to state a claim
for which relief can be
i.e., that such a claim does not constitute
an
protected by § 105(c) of the Act. In relevant part, section
lOS(c)(l) provides:
No person shall discharge . . . any miner . . . because
such miner . . . has filed or made a complaint under
or related to this Act, including a complaint
notifying the operator . . . of an alleged danger or

329

safety or health violation ... or because such miner
... has instituted or caused to be instituted any
proceeding under or related to this Act ...
(emphasis supplied).
This issue has not been the subject of prior review by the Commission,
but several Commission administrative law judges have found the existence of
protected activity when agencies other than the Mine Health and
Administration were contacted regarding health or safety hazards. 3
In the predicate section 105(c)(2) action before Judge Lasher, Ideal
moved for dismissal or summary judgment based upon the same argument. In
denying the motion Judge Lasher held:
[T]he filing by a miner with an appropriate state
agency of a claim for Workmen's Compensation can in
the abstract be considered to be a notification to a
mine operator of an alleged danger or safety or
health violation as provided in section 105(c)(l) of
the Act. Whether such claim should be so considered
and become a_ protected activity can only be
determined on the basis of all the evidence. In
this connection, in the perspective of the issue
raised on motion for dismissal or summary judgment,
it is pointed out that Petitioner has specifically
alleged that the Oklahoma State Workmen's
Compensation claims were "based on disabilities
allegedly caused by hazardous conditions .... "
Petitioner also contends that such claims are
complaints "related" to the Mine Act.
Order of June 13, 1989, at 2.
We agree with Judge Lasher that the issue is not summarily disposed of
by exclusive reference to the text of section lOS(c) of the Act. The
factual context in which the alleged activity occurred is determinative of
whether the activity is protected.
Accordingly, we conclude that the issue of whether the filing of
workers' compensation claims is a protected activity is a proper subject of
litigation in this case. To the extent that the record in this matter
contains conclusions, finding or orders that conflict with the foregoing,
3

See Secretary of Labor on behalf of William Johnson v. Borden Inc.,
(Chemical Div .. Smith-Douglass), 3 FMSHRC 926, (April 13, 1981); Johnny Howard
v. Martin-Marietta Corp., 3 FMSHRC 1599, (June 19, 1981); Secretary of Labor
on behalf of Joseph Gabossi v. Western Fuels-Utah, Inc., 9 FMSHRC 1481, 1505
(August 21, 1987), remanded on other grounds, 10 FMSHRC 953 n. 3 (August 15,
1988). But see Randy J. Collier v. Great western Coal, Inc., 12 FMSHRC 35,
(January 9, 1990).

330

they are hereby vacated.
Res judicata
Ideal argues that the subject claim of illegal discharge under the
Mine Act is barred by the doctrine of res judicata because the complainants
previously settled and dismissed with prejudice workers' compensation
retaliatory discharge claims in federal district court.
Prior to the initiation of the instant case, Ideal filed a civil
action
t complainants and other employees in the U.S. District Court
for the Eastern District of Oklahoma charging,
alia, violations of the
Racketeer Influenced and Corrupt Organizations Act (Case No. 88-186-C).
Complainants interposed a counterclaim alleging that Ideal discharged them
in retaliation for filing state workers' compensation claims in violation of
Oklahoma State law. However, on June 2, 1989, the parties consented to
entry of an order whereby the complainants voluntarily dismissed with
prejudice the counterclaim which alleged "workers' compensation retaliation
wrongful discharge." Order at 1.
Reciting the foregoing, Ideal, ...moved to dismiss the complaint in the
instant case on the basis ....of res judicata. In his order of December 7,
1990, denying the motion, the judge concluded that" ... different causes of
action were involved in the District Court case and the case before the
Commission." Order at 4. In explaining the basis for his legal conclusion,
the judge said:
As indicated in this order, the issue of whether a
workman's compensation claim is an activity
protected under the Act is not an issue in this
case. Such issue will not be decided, since it was
dismissed with prejudice in the case filed before
Judge Lasher. (CENT 88-142-D).
Order of December 14, 1990 at 4.
As we have indicated earlier, the workers' compensation claim issue
was not dismissed with prejudice by Judge Lasher and is presently pending.
Accordingly, we remand this issue to the j
for reconsideration.
Without intimating an opinion on this issue, we note that the
Commission has previous
considered the issue of res judicata and its
impact upon matters arising under section lOS(c) of the Act. Bradley v.
4 FMSHRC 982 (June 4, 1982), 2 MSHC 1729. There the
Commission set forth a framework for analyzing application of res judicata
to section 105(c) actions.
The dismissed counterclaim should be compared to
the present section 105(c)(3) complaint in light of the
iples set forth
in ==-=~="-.1-

331

For the foregoing reasons, this matter is hereby remanded to the
judge.

~

_,,/ /

~~~KAt-L;,

<

<:>

Richard V. Backley, Acting Chairman

Joyce A. Doyle, Commission;:?

Arlene Holen, Commissioner

L. Clair Nelson, Commissioner

Distribution

Michael C. Towers, Esq.
Fisher & Phillips
1500 Resurgens Plaza
945 East Paces Ferry Rd.
Atlanta, Georgia 30326
Benn A. Goff, Esq.
Goff and Meador
6301 Gaston Ave., Suite 520
Dallas, Texas 75214
J. Warren Jackmsn, Esq.
Pray, Walker, Jackman, Williamson & Marlar
Ninth Floor
Oneok Plaza
Tulsa, Oklahoma 74103
Administrative Law Judge John ~!orris
Federal Mine Safety & Health Review Commission
280 Colonnade Center
1244 Spper Boulevard
Denver, Colorado 80204

332

ADMINISTRATIVE LAW JUDGE DECISIONS

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

MAR 6 \991
CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-117-M
A. C. No. 54-00001-05503 BOY

Petitioner

v.
Ponce Cement or Ponce Cement
Plant

MAR-LAND INDUSTRIAL CONTRACTOR,
INCORPORATED,
Respondent

DECISION
Appearances:

Janes. Brunner, Esq., U. s. Department of Labor,
Office of the Solicitor, New York, New York,
for the Secretary;
Daniel Dominguez, Esq., Miguel A. Maza, Esq.,
Dominguez and Totti, Hato Rey, Puerto Rico, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case
This case is before me based on a Proposal for Assessment of
Civil Penalty in which the Secretary {Petitioner) alleged that
the Operator (Respondent) violated 30 C.F.R. § 56.15005.
Pursuant to notice, the case was heard in Hato Rey, Puerto Rico
on December 3, 1990. Anibal Colon Deffendini, Johnny Torres
Garcia, German Matos Hernandez, and Roberto Torres-Aponte
testified for Petitioner. Jose Luis Ortiz Gonzalez, Miguel A.
Garcia, and Sidney Kaye testified for Respondent. Petitioner
filed Proposed Findings of Fact and a Memorandum of Law on
January 13, 1991. Respondent filed a Legal Memorandum and
Proposed Findings of Fact on February 22, 1991.
Findings of Fact and Discussion

I.
On February 19, 1990, Cecilio Caraballo, a rigger employed
by Respondent, was performing construction work in the conversion
area of Respondent 1 s work site at Puerto Rican Cement.
Caraballo, who was working approximately 50 feet off the ground,
was wearing a safety belt to which a rope was attached. He

333

wrapped another rope around a beam to which he attached the rope
portion of the belt that he was wearing. He either leaned back
or attempted to descend, and then fell to the ground, and was
killed. Roberto Torres-Aponte, an inspector employed by MSHA,
was the only witness who testified that he actually had examined
the safety belt and ropes used by Caraballo. He described the
condition of the belt and ropes tied to
as "good" (Tr. 84, 85)
Thus, taking into account the fact that there is no evidence that
there was anything wrong with the condition of either the belt or
ropes, and considering the fact that Anibal Colon Deffendini,
Johnny Torres Garcia, and German Matos Hernandez, all of whom
witnessed the accident, indicated that the belt and the ropes
fell to the ground along with Caraballo, I. conclude that the belt
was not properly secured to the beam. Hence, the belt was not
being worn and used in a safe fashion.
Accordingly, I find that
Respondent herein did violate Section 56.15005 as alleged in the
Citation issued to Respondent by MSHA Inspector Roberto-Torres
Aponte.
II.
Clearly the violation herein contributed to the
sk of
falling.
Further, inasmuch as the violation herein led to the
death of Caraballo, I conclude that the violation was significant
and substantial.
(See, Mathies Coal Co., 6 FMSHRC 1 (January
1984)).

III.
Inasmuch as the violation herein resulted in a fatality, I
conclude that the violation was of a high level of gravity.
IV.
Essential
it is Respondent's position that it was not
negligent with regard to the violation at issue. For the reasons
that follow, I disagree.
According to the testimony of three of Respondent's riggers,
Deffendini, Hernandez, and Jose Luis Ortiz Gonzalez, Respondent's
supervisors conducted weekly meetings, at which time the use of
safety belts was discussed. These employees did not testify to
any specif
instructions or information that was provided at
se meetings. No testimony was adduced from any of
Respondent's supervisors as to the specific content of the weekly
safety meetings pertaining to the use of the belts. Hence, the
record before me fails to establish specifically what Respondent
told his employees with regard to the use of safety belts, and
more importantly, the specific manner in which they were to be

334

properly secured. 1 /
According to Gonzalez, Victor Vega,
Respondent's supervisor, conducted a safety meeting on the
morning of February 19, the date of the accident at issue, and
talked about how to use safety belts, and the use of other
equipment. However, neither Gonzalez nor any other witness
testified with regard to the specific instructions or information
that was imparted. Thus, the record does not support a finding
that any specific instructions were provided by Respondent on
February 19, with regard to the ~eed to secure the safety belts
and the correct manner to do so. I
There is no evidence that Respondent provided Caraballo or
its other employees with any written instructions on the usage of
safety belts.
Indeed, Respondent's only written safety policy
does not mention the use of safety belts (Joint Exhibit A).
Additionally, there is no evidence that supervisors were present
to observe or supervise the manner in which Caraballo wrapped the
rope around the beam, and attached his belt to it.
In this
connection, I find the testimony of Gonzalez that Vega conducted
a safety meeting on February 19, 1990, by itself, insufficient to
rebut the testimony o; Deffendini, Hernandez, and Johnny Torres
Garcia, that, in essence, when Caraballo attached or attempted to
attach his belt to the beam there were no supervisors present.
Also, Respondent had notice that its employees were not
securing their belts, as it had been served with two imminent
danger orders for violations of Section 56.15005, supra, op the
ground that employees wearing belts had not tied them off. 5 /

1 ; Indeed, according to Johnny Torres Garcia, he had been
working for Respondent for approximately a month prior to
February 19,1990, and had not received any instructions from
Respondent concerning the use of safety belts.
2;
Respondent relies on Colon's testimony that, when
Caraballo was hired, he (Colon) informed him of the need to wear
a belt and instructed him in the manner in which it was to be
used"
This testimony does not establish that Respondent
discharged its obligation to instruct on the usage of safety
belts, as there is no evidence that Colon, when he instructed
Caraballo, was acting pursuant to directions from management
rather than on his own initiative.
3 ; The most recent such order was issued February 18, 1989.

335

There is no evidence that Respondent took any action
response
to such notic2 to ensure that employees properly secure their
safety belts. I
considering all of the above, I conclude that Respondent was
highly negligent in not adequately instructing and supervising
its employees in proper methods to be used in securing safety
belts.
A toxicological analysis of Caraballo's urine indicated the
presence of .30 mcg/ml benzoylecgonine, a substance the liver
metabolizes from cocaine, evidencing the fact that Caraballo had
ingested cocaine at some time before his death.
(The report
indicated that the examination of the nasal passages was negative
for cocaine and there was no cocaine detected in Caraballo's
blood). As explained by Sidney Kaye, an eminent toxicologist, in
essence, once ingested cocaine has been metabolized to
benzoylecgonine, as was the case with Caraballo, it would cause
depression which could be "deep" (Tr. 129). The depression can
produce confusion, tiredness, muscle spasm, anxiety,
restlessness, and a .lessened ability to concentrate and remember.
However, Kaye indicated that he had no way of knowing how much
cocaine Caraballo had taken and how long he had taken it prior to
the accident. Also, no evidence was adduced with regard to a
correlation between the level of benzoylecgonine present in the
urine and the degree of impairment in concentration. Thus there
is nothing in the record to indicate that the level of
benzoylecgonine in Callaballo's urine was
.i sufficient amount
to have caused a significant deterioration in his concentration
and memory so as to have significantly impaired his ability to
properly perform the task of securing his safety belt. Thus, I
find that although Caraballo's concentration and memory might
have been impaired due to the ingestion of cocaine, the record is
insuff ient to predicate a finding as to the degree of
impairment in these functions as a consequence of the ingestion
of cocaine. Hence, the presence of .30 mcg/ml of benzoylecgonine

4 ; Miguel A. Garcia, Respondent's President and Project
Manager at the subject site, testified that Respondent, in
general, had
policy of issuing warnings for safety infractions.
so, Gonz
testified that Respondent had reprimanded him for
f
ling to
off his be
I find this evidence is
insufficient to establish that Respondent had either provided
specific instruction in the requirement and manner of securing a
belt or taken any supervisory action to monitor that belts were
being secured properly.

336

in Caraballo's urine does not, per se, diminish Respondent's
negligence to any significant degree. Accordingly, I conclude
that the violation herein was as a result of Respondent's high
level of negligence.j/
Taking into account the remaining statutory factors as
stipulated to by the Parties, I conclude that a penalty of $5000
is appropriate for the violation found herein.

5/ Respondent has cited North American Coal Corp.,
3 IBMA 93 (April 1974), and Peabody Coal Corp.,, not officially

reported, 1 MSHC 1676_(Judge Koutras, August 30, 1978) for the
principle that an employer can not be held responsible for
insubordinate acts of its employees, where the former has a
policy promoting safety which it consistently applies. I do not
find these cases to relevant to the instant proceeding. In North
American, supra, the Operator was cited for violating 30 C.F.R.
§ 75.1720(a), which mandated that miners are reauired to wear
safety goggles. Accordingly, the Commissio.n held that a
violation did not occur where the failure to wear goggles is
entirely the result of the employees' negligence or disobedience.
In contrast, in the case at bar, the evidence does not establish
that the violation was entirelv the result of Caraballo's
negligence or misconduct. The Commission in North American,
supra, in essence, held that an Operator is in compliance with
the mandate of requiring miners to wear goggles when it
establishes a safety system to assure the wearing of such
equipment.
In Peabody coal Corp., supra, the Operator was cited for a
violation of 30 C.F.R. § 77.1710 which mandates that miners shall
be reauired to use safety belts and lines where there is a danger
of falling.
In holding that a violation did not occur, Judge
Koutras noted that a miner who was not wearing a belt, was acting
contrary to posted and published instructions. In the case at
bar, the evidence fails to establish posted and published
instructions with regard to the need to secure a safety belt and
the proper manner to do so. Davis Mechanical Construction, Inc.,
5 OSHC 1789 ( June 2, 1977), and Constructora Maza, Inc.,
2 OSHC 3079 (July 8, 1974), involve alleged violation of safety
standards set forth in Title 29 of the Code of Federal
Regulation,s, and hence are not binding in the present proceeding
which involves a violation of a differently worded regulation set
forth in Title 30 of the Code of Federal Regulations.

337

ORDER
It is ORDERED that, within 30 days of this Decision,
Respondent pay $5000 as a Civil Penalty for the violation found
herein.
/~·,

/A~e~

Administrative Law Judge

Distribution:
Janes. Brunner, Esq., Office of the Solicitor, U. s. Department
of Labor, 201 Varick Street, Room 707, New York, NY 10014
(Certified Mail)
Daniel Dominguez, Esq., Miguel A. Maza, Esq., Dominguez and
Totti, P. O. Box 1732, Hato Rey, PR 00919 (Certified Mail)

dcp

338

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

March 6, 1991
CIVIL PENALTY PROCEEDING

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

Docket No. SE 90-126
A. C. No. 01-00323-03638

v.

Chetopa Mine

DRUMMOND COMPANY,
INCORPORATED,
Respondent

DECISION
Appearances:

Douglas N. White, Esq., and Carl c. Charneski,
Esq., Office o_f the Solicitor, U. S. Department
of ~abor, Arlington, Virginia; and
George D. Palmer, Esq., and William Lawson, Esq.,
Office of the Solicitor, U. S. Department of
Labor, Birmingham, Alabama, for the Petitioner.
Thomas c. Means, Esq., and J. Michael Klise, Esq.,
Crowell and Moring, Washington, D.C.;
David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale, Birmingham, Alabama; and
J. Fred McDuff, Esq., Drummond Company, Inc.,
Birmingham, Alabama, for the Respondent.

Before:

Judge Merlin
Statement of the case

This action is a petition for the assessment of six civil
penalties filed by the Secretary of Labor against Drummond
Company, Inc., under section llO(a) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 820(a), hereafter referred to
as the "Act 11
o

Drummond Company, Inc., hereafter referred to as the 11 operator11, has filed a motion to remand for reassessment by the Secretary of proposed civil penalties and a memorandum in support
thereof" The Secretary has filed a motion and brief in opposition to the motion to remand. Thereafter the operator filed a
reply brief. On February 28, 1991, oral argument was heard on
the motions.
The parties have agreed to the following stipulations which
were accepted at the oral argument (Tr. 3): (1) the operator is
the owner and operator of the subject mine; (2) the operator and
the mine are subject to the provisions and jurisdiction of the
Federal Mine Safety and Health Act of 1977; (3) the Administrative Law Judge of the Federal Mine Safety and Health Review

339

commission has jurisdiction in this case; (4) only the proposed
penalties in Docket No. SE 90-126 are the subject of the motion
to remand; the Secretary agrees that the stipulations and exhibits are true and accurate, but objects to the consideration
and/or admissibility of the same on the grounds of relevancy;
(5) Program Policy Letter No. P90-III-4, is a true and accurate
copy of the policy implemented by the Mine Safety and Health
Administration, hereafter referred to as "MSHA", in assessing the
penalties in this case; (6) as set forth in the letter and as was
applied herein, excessive history is defined as "11 or more
repeat violations of the same health or safety standard in a
preceding 1-year period"; (7) as set forth in the letter and as
was applied herein, if the excessive history of each citation
consisted of between 11 and 25 violations inclusive, then the
proposed penalty was increased 20%. If the excessive history of
each citation consisted of between 26 and 40 violations inclusive, then the proposed penalty was increased 30%; (8) the
foregoing policy was implemented in this case resulting in four
citations being increased by 20% and two citations being
increased by 30%.
Issue
The operator challenges the method whereby the Secretary
arrived at the amount of penalties she has proposed in this case
pursuant to section llO(a) of the Act, supra. In particular, the
operator disputes the use made by the Secretary of the operator's
prior history of violations in reaching the proposed penalties.
Applicable Law and Policy
Section llO(a), supra, directs the Secretary to assess a
civil penalty for every violation. Section 105(a), 30 U.S.C.
§ 815(a); provides that the Secretary shall notify the operator
of the proposed penalty and of appeal rights. Section
105(b) (1) ( , 30 UoS.C. § 815(b) (1) (B)v directs the Secretary in
determining the proposed penalty to consider the following six
factors: the operator's history of previous violations, the
appropriateness of the penalty to the size of the operator's
businessr negligence~ the effect on the operator's ability to
continue
businessv gravityv and demonstrated good faith in attempting to achieve rapid compliance after notification of the
violation.
Section 105(a), supra, allows the operator 30 days to notify
the Secretary of its intention to contest a proposed penalty
assessment.
If the operator does not contest the proposed
assessment within the time allowed, the proposed assessment is
deemed a final order of the Commission not subject to review by
any court or agency. Under section 105(d), 30 u.s.c. § 815(d),
when the operator notifies the Secretary of its intention to
contest the proposed assessment, the Secretary must immediately

340

advise the Commission and the Commission must afford an opportunity for a hearing under the Administrative Procedure Act.
Pursuant to section llO(i), 30 u.s.c. § 820(i), the Commission has the authority to assess all penalties provided for in
the Act and in so doing it must consider the same criteria that
the Secretary considers in proposing penalties.
In implementation of her responsibilities under sections
105(a) and (d) and llO(a), supra, the Secretary adopted 30 C.F.R.
Part 100. These regulations establish a tripartite scheme for
calculating the amount of proposed civil penalties.
The first method is the $20 single penalty assessment.
30 c.F.R. § 100.4. This applies where a violation is not reasonably likely to result in a reasonably serious injury, hereafter
referred to as "non S&S", and is abated within the time set by
the inspector. As discussed infra, under the single penalty
assessment the remaining four criteria, including history of
violations, are not individually analyzed in each case.
The second methoa is the regular assessment formula.
30 C.F.R. § 100.3. The penalty computation is based upon the six
factors in section 105(b) (1) (B), supra. Points are given on a
sliding scale for each of the criteria and a penalty conversion
table translates the points into a dollar amount. Of particular
interest for present purposes is the fact that as originally
enacted, a history of single penalty assessments was expressly
excluded from an operator's history of previous violations when
the regular formula was used. 30 C.F.R. § 100.3(c).
The third method is the special assessment which provides
that MSHA may waive the regular or single penalty assessments if
it determines that conditions surrounding the violation warrant a
special assessmento 30 C.FoR. § 100.5. Some types of violations
may be of such a nature or seriousness that an appropriate
penalty cannot be determined by the first two methods. Under
such circumstances, eight categories are identified and are to be
reviewed to determine whether a special assessment is appropriate
Special assessments are also to take into account the six
criteria"
a

The genesis of the issues presented in this case is to be
found in the decision of the Court of Appeals for the District of
Columbia in Coal Employment Project. et al. v. Dole, 889 F.2d
1127 (1989), where the validity of the single penalty assessment
was challenged on the ground that under that method individualized consideration was not given to all six statutory criteria. As set forth above, a single penalty assessment of $20 is

341

levied for a non S&S violation that is timely abated, but where
separate consideration is not given to the other criteria.
The court of appeals held that the Secretary was not required to adopt an individualized approach to all six criteria
and that as a general matter assessment of penalties according to
group classifications based upon the presence or absence of
specific criteria was a reasonable interpretation of the Act.
The court approved the use of a non-generalized approach with
respect to the operator's size, ability to continue in business,
and negligence.
Id. at 1134-1136.
The court however, expressed far different views regarding
prior history of violations which it described as an especially
important criterion in Congress' eyes. Id. at 1136. The court
cited the legislative history of the Act to demonstrate that
Congress had been concerned with repeat offenders and it said
that Congress intended that civil penalties provide an effective
deterrent against all off enders and particularly against off enders with records of past violations. The court then pointed out
that violation history figured in the validity of the single
penalty assessment in-two ways: (1) its presence or absence in
the single penalty assessment under section 100.4; and (2) the
omission of single penalty assessments from history in application of the regular and special assessment formulas.
Id. at
1136.
The court then turned to two scenarios to illustrate its
concerns. In the first situation, an operator who commits a
series of non S&S violations that are timely abated would only
incur a string of $20 penalties. The court believed this was
contrary to Congress' intent that the more prior infractions
incurredv the higher the current penalty should be and that there
was no evidence Congress did not mean this approach to apply to
violations governed
the single penalty assessmento Unpersuaded by MSHAus representations about how the penalty scheme was in
administered, the court held that the scheme must take into
account the operator's history of violations whether they are
significant and substantial, hereafter referred to as 11 S&S", or
non S&So MSHA regulations werev therefore, held unreasonable
because they did not provide a method for imposing higher penalagainst operators who commit numerous non S&S violations .
. at 1136-11380 Accordingly, the court's decision may be
fairly interpreted to hold that the failure to take account of
previous non S&S violations in determining the assessment of a
current non S&S violation was erroro
In the second situation described by the court, an operator
commits an S&S violation after a series of single penalty assessmentso Section 100.3(c) provided that the history of single
penalty assessments would not be included in a penalty computation under the regular assessment formula.
Contrary to the

342

regulations, MSHA represented to the court that where an S&S
violation was repetitious, i.e. similar to the prior non S&S
violation, it could be subject to special assessment. Even
assuming this were true, the court pointed out that if the later
S&S violation was not repetitious of the earlier non S&S violation, only a regular assessment would be generated which would
not take into account prior non S&S violations.
Id. at 1138.
Therefore, the court remanded the case to (1) resolve the
inconsistencies between MSHA's regulations and its representations to the court so as to insure that MSHA took account of past
single penalty violations in deciding whether a special assessment is required when a current violation itself might qualify
for a single penalty assessment and (2) to amend or establish
regulations to clarify how administration of the single penalty
standard would take account of the history of both S&S and non
S&S violations.
In the interim until MSHA formally complied with
the remand, it was directed to instruct field personnel (1) to
consider an operator's history of non S&S violations in assessing
a single penalty assessment and (2) to consider an operator's
history of past single penalty assessments when imposing regular
assessments against.an operator who commits an S&S violation
after having committed a series of non S&S violations.
Id. at
1138.
MSHA initially responded to the court's order by issuing
interim regulations.
54 Fed. Reg. 53609 (1989). These instructions (1) called for-a special assessment review of non S&S
violations involving high negligence and excessive history of the
same type of violation and (2) suspended the sentence in section
§ 100.3{c) which excluded prior single penalty assessments from
the regular assessment formula.
In a per curiam opinion dated
April 12, 1990v the court disapproved the use of a high negligence factor 1 but did not disturb the partial suspension of
section 100 3(c), noted herein. The court also told MSHA to
devise a suitable interim replacement responding to the court 9 s
concerns within 45 days and noted MSHA@s intention to publish a
proposed final rule by August, 1990. Coal Employment Project v.
Dole, 900 F.2d 367, 367-368 (D.C. Cir. 1990).
Thereafter on May 29, 1990, MSHA issued Program Policy
Letter No. P90-III-4. This letter states it is implementing a
program of higher penalties for violations that meet a new
svexcessive history" criteria. For each violation both an overall
history of violations and a repeat history of the same mandatory
standard are calculated. Excessive history is defined as (1) 16
or more penalty points as derived from the table appearing in
section 100.3(c) for the calculation of prior history points
under the regular assessment formula or (2) 11 or more repeat
violations of the same standard within a preceding one year
period.

343

The program policy letter further provides that non S&S
violations with excessive history are no longer eligible for the
single penalty assessment and that MSHA elects to waive the
single penalty in such cases and to assess penalties under the
regular formula.
In addition, S&S violations with excessive
history that previously would have received a regular formula
assessment will now receive a special history assessment, since
MSHA elects to waive the regular formula assessment and assess
under the special assessment method.
Finally, the special
history assessments for S&S violations are based on the regular
formula point system plus a percentage increase for excessive
history which will be added to the penalty. The percentage
increases consist of three progressive increments of 20% to 40%
based upon overall history points or number of repeat violations.
In the instant case the six contested violations were
specially assessed pursuant to the program policy letter. Four
violations cited under 30 C.F.R. § 75.503 were subject to a 20%
increase in their regular assessments and two violations of
30 C.F.R. § 75.400 were subject to a 30% increase.
(Stipulation
No. 8) •

The operator does not question the court's decision or
directives in Coal Employment Project, et al. v. Dole, supra.
Rather, it alleges that the program policy letter goes beyond
what the court ordered, that the letter is contrary to the
court's decision as well as to the Act and regulations, and that
the letter was promulgated without notice and comment as required
by the Administrative Procedure Act.

Jurisdiction
The threshold issue is whether or not I have jurisdiction to
entertain the issues presentedo
In this respectv the Commission us decision in Youghioghney & Ohio Coal CompanyQ 9 FMSHRC 673
1987) v is instructiveo
In that case the operator argued that
since the Secretary had not complied with the Part 100 regulations in proposing penalties the case should be remanded to MSHA
for reconsideration of the penalties.
9 FMSHRC at 6790 The
Commiss
held that since the administrative law judge had
conducted an evidentiary hearing on the meritsv no compelling
or practical purpose would be served by requiring the
Secretary to undertake again the proposing of the penalties.
In the Commission 1 s view, a preferable record had already been
developed which allowed the Commission to assess penalties
under its de novo authority. Once a hearing had been held, the

344

determination by the Commission or one of its judges that the
secretary failed to comply with Part 100 did not require affording the Secretary further opportunity to propose penalties. The
commission however, also stated:
* * * * We further hold, however, that in
certain limited circumstances the Commission
may require the Secretary to re-propose his
penalties in a manner consistent with his
regulations.

*

*

*

*

We further conclude, however that it would
not be inappropriate for a mine operator prior to
a hearing to raise and, if appropriate, be given
an opportunity to establish that in proposing a
penalty the Secretary failed to comply with his
Part 100 penalty regulations.
If the manner of
the Secretary's proceeding under Part 100 is a
legitimate 9oncern 'to a mine operator, and the
Secretary's departure from his regulations can be
proven by the operator, then intercession by the
Commission at an early stage of the litigation
could seek to secure Secretarial fidelity to his
regulations and possible avoidance of full
adversarial proceedings.* * * *
Id. at 679-680.
In the instant case there has been no hearing on the merits.
At the very outset the operator raised the issue of the validity
of the method pursuant to which the Secretary proposed the six
penalties involved hereo Therefore, this case falls within the
commissioncs pronouncement that where there is no record, the
Commission can require the Secretary to re-propose penalties if
the operator proves the Secretary has not followed Part 100.
(Operator's Reply Brief, p. 2).
The Solicitor 1 s argument that the Commission 1 s statements
regarding jurisdiction are only suggestions cannot be accepted.
(Solicitor 1 s Brief, pp. 8-9) o As set forth above, the Commission
described its declaration as a holding and a conclusion" And its
statements regarding what may be done in a situation like this
case are straightforward and definitive" As for the Solicitor's
assertion that the Commission is wrong in this respect, it need
only be remembered that decisions of the Commission are binding
upon its judges.
I have previously rejected as mischievous any
notion that I am at liberty to depart from Commission teachings.
U. S. Steel Mining Company, Inc., 5 FMSHRC 746 (May 1986). The
Solicitor's further assertion that this case is distinguishable

345

from Youghiogheny & Ohio, because it does not involve the Secretary's failure to abide by her own penalty regulations, also must
be rejected.
(Solicitor's Brief, p. 9). The operator contends
that the Secretary's present attempt to propose penalties is
based upon the invalid instructions of the program policy letter.
(Operator's Brief, pp. 4-5; Operator's Reply Brief, pp. 2-4).
If
the instructions are found invalid, the Secretary must then
propose penalties in accordance with Part 100 without recourse to
the instructions.
In other words, the operator's allegation is
that at present the Secretary is not following Part 100 without
the added instructions of the program policy letter which the
operator believes are illegal. This case is therefore, within
the purview of Youghiogheny & Ohio.
Accordingly, I conclude I have jurisdiction to consider the
issues presented.

The court's Interim Mandate
We turn now to the validity of the method whereby MSHA has
proposed penalty assessments, ,in the instant case. This inquiry
depends in the first-instance upon whether the method used by
MSHA as set forth in the May 29, 1990, Program Policy Letter
conforms to the court's decision and order in Coal Employment
Project v. Dole, supra. As already noted, the operator does not
contest the court 1 s instructions to MSHA.
The questions presented are what the mandate means and whether MSHA's letter complies
with it. As explained heretofore, the court approved the single
penalty assessment with respect to three of the four statutory
criteria which received group classification treatment. The
court however, took a different stance with respect to history of
prior violations.
The court emphasized that this factor was of
singular significance in the adoption and administration of the
Act and directed its attention to the effect given by Part 100 to
a prior
of single penalty assessments, ioe. non S&S
violations that are timely abated.
It noted that 30 C.F.R.
§ 100.4 made no provisions for taking such history into account
when proposing a single penalty assessment and that one sentence
30 C.F.R. § 100.3(c) provided that in proposing regular
assessmentsf a prior history of single penalty violations would
not be counted.
The court held first that the regulations were unreasonable
because when assessing a current non S&S violation they did not
provide a reasonable and consistent method for imposing higher
penalties against operators who had committed numerous past non
S&S violations.
The court further held that with respect to
current S&S violations which are not repetitious of earlier non
S&S violations, MSHA regulations and policies were deficient
because they implied that the current violations would result
only in regular assessments which would not reflect the earlier
violations.
Accordingly, the court ordered MSHA,
alia, to

346

establish regulations to clarify how the single penalty assessment would take account of both a non S&S and an S&S history.
In
the interim the court required MSHA (1) in assessing single
penalties to consider an operator's history of non S&S violations
and (2) to consider a past history of single penalties when
imposing regular assessments against operators who have a current
S&S violation.
The May 29, 1990, Program Policy Letter establishes a new
element which the Secretary must take into account when proposing
civil penalties under the Act. As already explained, this
element, entitled "excessive history", comes into existence
either when an operator has more than 16 penalty points as
derived from Table 6 in section 100.3 of the regulations or more
than a given number of repeat violations of the same health and
safety standard. In its "Background" discussion the letter
states that increased assessments at mines with an excessive
history of both S&S and non S&S violations should serve as a more
effective deterrent. Clearly, therefore, excessive history
encompasses both categories of violations.
The program pol~ey letter's adoption of an excessive history
standard which includes both S&S and non S&S violations, exceeds
the court's interim mandate. To be sure, the court conducted a
wide ranging analysis of the crucial part played by prior history
in proposing and assessing penalties. But in considering the
challenge before it to the single penalty assessment, the court
focused upon the history of single penalty assessments as that
history relates to assessments of current S&S violations and
current non S&S violations. The first hypothetical given by the
court was of an operator who commits a series of non S&S violations and receives only a string of $20 penalties, i.e. an
operator with a current non S&S violation after of history of
previous non S&S violationso The second hypothetical was concerned
an operator who commits a current S&S violation (nonrepetitious) after an earlier series of non S&S violations" With
these examples in mind, the court directed the Secretary as an
interim matter to consider an operator's history of non S&S
violations both in assessing current single penalties and imposing current regular assessments" The program policy letter goes
beyond the court s interim instructions because it deals not only
with the operatorus history of non S&S violations but also with
its S&S history"
In light of the foregoing, the program policy letterus
declaration that non S&S violations with excessive history are no
longer eligible for the single penalty assessment cannot be
accepted as within the confines of what the court allowed MSHA to
undertake immediately.
So too, the program policy letter's pronouncement that S&S
violations with an excessive history will now receive a special

347

history assessment, as set forth heretofore, with percentage
increments in penalty amounts also cannot be approved. The terms
of the interim mandate are clear and the program policy letter
goes beyond them. 1
Finally, it must be recognized that the court in Coal
Employment Project v. Dole, supra, contemplated that there would
be rulemaking to bring Part 100 in line with the legislative
history and purposes of the Act. The second portion of the
court's remand directs MSHA "to amend or establish regulations"
to clarify how administration of the single penalty standard
would take account of a history of violations that did and did
not pose significant and substantial threats to miner safety.
The court issued its interim mandate for limited agency action
until MSHA "formally" complied with the remand. One must not
lose sight of the clear distinction between the remand and the
interim instructions. The interim instructions concern only the
role of a prior non S&S history, whereas the remand, which envisages formal procedures, encompasses a history of both types of
violations, S&S and non S&S.
I find unconvincing the Solicitor's representations that the
rulemaking now undertaken by the Secretary with respect to prior
history and other matters, is voluntary.
(Solicitor's Brief,
p. 17); 55 Fed. Reg. 53481 (1990). The notice of proposed
rulemaking makes clear that it is being undertaken pursuant to
the court's remand. The program policy letter is an attempt to
put new rules regarding the treatment of history of prior violations on a fast track without reference to the court's intent
regarding new regulations which would be adopted pursuant to
formal compliance with its remand.
In addition, the prospective
nature of the proposed rulemaking which applies only to citations
and orders issued after January 1, 1991, undercuts the fast track
approach of the lettero

Administrative Procedure Act
The next inquiry is whether the program policy letter can
stand on its own without reliance upon the court's interim

In this connection it is noted that the first interim
instructions supra, were plainly correct in suspending the
sentence in section 100.3{c) which had excluded timely paid
single penalty assessments from an operator's history for regular
assessment purposes. The history covered was only that of non
S&S violations and the offending sentence was specifically
identified by the court. As already set forth, the court's per
decision let stand the suspension.

348

mandate. This depends upon whether notice and comment are
required under the Administrative Procedure Act.
Section 553 of the Administrative Procedure Act, 5 u.s.c.
553, hereafter referred to as the "APA 11 , provides that when an
agency proposes to engage in rulemaking, it must publish notice
of the proposed rulemaking in the Federal Register, give interested persons an opportunity to participate in the rulemaking
through submission of written data, views or arguments with or
without opportunity for oral presentation, and publish the final
rule incorporating a concise statement of its basis and purpose
30 days before its effective date.
§

Section 551(4), 5 u.s.c. § 551(4), defines a rule as
follows:
(4) "rule" means the whole or a part of
an agency statement of general or particular
applicability and future effect designed to
implement, interpret, or prescribe law or
policy or describing the organization, procedure, or-practice requirements of an agency
and includes the approval or prescription
for the future of rates, wages, corporate or
financial structures or reorganizations
thereof, prices, facilities, appliances,
services or allowances therefor or of valuations, costs, or accounting, or practices
bearing on any of the foregoing;
An exception to the notice and comment requirement is
however, given by section 553(b) (A), 5 u.s.c. § 553(b) (A):
(A) to interpretative rules, general
statements of policyp or rules of agency
organization, procedure or practice.
Essential to a proper determination of the instant case is
recognition and acknowledgment of the important purposes served
by notice and comment. One purpose of the rulemaking process is
to insure a thorough exploration of relevant issues culminating
in application of agency expertise after interested parties have
submitted their arguments.
Pacific Gas and Electric Company v.
Federal Power Commission, 506 F.2d 33, 39 (D.C. Cir. 1974).
Another purpose is to provide that the legislative function of
administrative agencies is so far as possible exercised only upon
public participation and notice as a means of assuring that an
agency 1 s decisions are both informed and responsive. American
Bus Association v. United States, 627 F.2d 525, 528 (D.C. Cir.
1980). Also, public participation and fairness must be reintroduced to affected parties after governmental authority has been
delegated to unrepresentative agencies.
Batterton v. Marshall,
648 F.2d 694, 703 (D.C. Cir. 1980). Finally, notice and comment

349

are necessary to the scheme of administrative governance established by the APA because they assure the legitimacy of administrative norms. Air Transport Association of America v. Department of Transportation, 900 F.2d 369, 375 (D.C. Cir. 1990).
It is likewise critical to recognize the characteristics of
"legislative" or "substantive" rules which can only be issued
after notice and comment. Substantive rules establish binding
norms which determine present rights and obligations. American
Bus Association v. United States, supra, at 532. They are rules
which carry the force of law and in so doing grant rights, impose
obligations or produce other significant effects on private
interests. Batterton v. Marshall, supra, at 701-702. such rules
have a present binding effect. Community Nutrition Institute v.
Young 1 818 F.2d 943, 947 (D.C. Cir. 1987).
A particularly salient characteristic of agency action
subject to notice and comment is the reduction or elimination of
agency discretion. The following are instances where for this
reason notice and comment were required.
Parole Board guidelines
reduced the decision maker's field of vision and defined a fairly
tight framework, thereby circumscribing the agency's statutorily
broad power.
Pickus v. United States Board of Parole, 507 F.2d
1107, 1113 (D.c. Cir. 1974). An agency policy letter immediately
lifted restrictions against certain carriers and did not even
hint to decision makers that they could exercise discretion.
American Bus Association v. United States of America, supra, at
531-532. A statistical methodology adopted for computation of
unemployment statistics was a formula which left no discretion to
weigh or alter contributing elements. Batterton v. Marshall,
=-=.s;..=.=I
at 707. A part of an agency's program letter limited
state discretion and imposed a new obligation on the states by
establishing a mathematical formula for determining contributions
to pension funds. Cabais v. Egger, 690 F.2d 234, 239 (D.C. Cir.
1982 . Rules establishing allowable levels of food contaminants
cabinned agency enforcement discretion by precluding prosecution
of certain producers. Community Nutrition Institute v. Young,
~----~' at 948.
Agency orders shaped and channeled enforcement
iminating certain specific obligations regarding airline
ing. State of Alaska v. U.S. Department of Transporta, 868 F.2d 441, 447 (D.C. Cir. 1989).
Section 553(b) (A) of the APA, supra, establishes exceptions
to notice and comment, one of which is for general statements of
pol
In analyzing whether an agency action falls within one
of the exceptions under section 553(b) (A), the courts have established certain general princ
• Exceptions to notice and
comment requirements are to be narrowly construed and only
reluctantly recognized. Air Transport Association of America v.
Department of Transportation,
, at 375; American Hospital
Association v. Bowen, 834 F.2d 1037, 1044-45 (D.C. Cir. 1987);
Batterton v. Marshall, supra, at 704; American Bus Association v.

350

United States, supra, at 528. In addition, an agency's characterization of its action is given some but not overwhelming
deference.
Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d
533, 537-538 (D.C. Cir. 1986). Thus, an agency's description of
an act as a policy statement provides some indication, but an
announcement is not necessarily a policy statement because the
agency has so labelled it. Environmental Defense Fund v.
Gorsuch, 713 F.2d 802, 816 (D.C. Cir. 1983); General Motors
Corporation v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984);
Chamber of Commerce v. Occupational Safety and Health Administration, 636 F.2d 464, 468-469 (D.C. cir. 1980); Pacific Gas and
Electric Company v. Federal Power Commission, supra, at 39.
With these precepts in mind, the courts have paid much
attention to the attributes of a particular exception.
In the
case of a general statement of policy, courts have examined
whether the statement establishes a binding norm and is finally
determinative of the issues or rights to which it is addressed.
Pacific Gas and Electric Company v. Federal Power Commission,
supra, at 38. Those agency ac.tions .that are not binding or
finally determinativ~ are viewed as policy statements. Another
attribute of a general statement of policy is agency discretion.
Just as the absence of agency discretion is a hallmark of a
substantive rule, so the presence of such discretion connotes a
general statement of policy. A policy statement genuinely leaves
the agency and its decision makers free to exercise discretion.
American Bus Association v. United States, supra, at 529.
Guidelines adopted for use in citing operators and independent
contractors under the Mine Safety Act did not constitute a
binding substantive regulation, because the language of the
guidelines was replete with indications that the secretary
retained discretion to cite operators or contractors as he saw
fito
Brock v. Cathedral Bluffs Shale Oil Co., supra, at 538. An
agency statement that there were no grounds to delay awarding
certain licenses by random selection, i.eo lottery, was not a
binding rule but only interpretative, since the agency was not
bound to any specific procedures or even to conduct a lottery.
National Latino Media Coalition v. Federal Communications
Commission, 816 F.2d 785, 789 (D.C. Cir. 1987).
Applying the foregoing p~inciples to the case at hand, I
conclude that notice and comment under the APA are required and
that until they take place the program policy letter cannot be
applied.
By every measure, the precepts laid down by the letter
must be held to be substantive and not merely a general statement
of policy as asserted by the Solicitor.
(Solicitor's Brief,
p. 11). The letter sets forth the exact numerical levels at
which an excessive history comes into being and the letter
further details precisely what occurs when these levels are
attained. Non S&S violations with excessive history are subject
to the regular assessment formula and S&S violations with excessive history are subject to a special history assessment formula

351

containing prescribed percentage increments in penalty amounts.
The Secretary's broad authority under the Act to propose penalties in accordance with the six criteria is channelled, shaped,
and indeed circumscribed in a tight framework. Air Transport
Association of America v. Department of Transportation, supra;
Community Nutrition Institute v. Young, supra; Pickus v. United
states Board of Parole, supra. Absent is agency discretion with
respect to a large number of cases involving prior history of
violations and in place is a rigid mathematical formula which
allows no room for maneuver either with respect to the existence
or consequences of an excessive history.
Batterton v. Marshall,
supra; Cabais v. Egger, supra.
Accordingly, if an operator has a certain number and type of
violations within a given period it is charged with an excessive
history and when it has such a history, its civil penalty liability is increased along prescribed lines. That is what happened
in this case. The provisions of the letter were applied and the
operator owed more money.
Such circumstances demand that interested persons be given notice and opportunity to participate in
rulemaking before the .-letter becomes final.
MSHA should welcome
the input of those who would be so directly and seriously affected by the dictates of the letter. Without such input the letter
lacks requisite legitimacy.
I have carefully reviewed the arguments advanced by the
Solicitor with respect to notice and comment, but cannot accept
them.
The assertion- that notice and comment are not required
because the letter does not change the penalty proposal and
assessment scheme is not persuasive.
(Solicitor's Brief,
pp. 12-14). Admittedly, the letter does not alter the steps
through which each penalty proposal and assessment pass, e.g.,
assessment conference.
30 C.F.R. § 100.6. However, this case
has nothing to do with the procedural framework for determination
of individual penalty amounts, or with the division of functions
between the Secretary and the Commission, or with the independent
authority of the Commission to assess penalties
nova. Rather
this case involves imposing additional monetary obligations upon
operators pursuant to a new method of penalty calculation without
lowing said operators to be heard first with respect to the
propriety of
new method.
I also find misplaced the Solicitor 1 s proposition that
notice and comment are not required because the Secretary's
penalty proposals are not final.
(Solicitor 1 s Brief, pp. 13-14;
Oral Argument Tr. 38-41, 52-54). The appealability to the
Commission of the Secretary's penalty proposals does not mean
that notice and comment are unnecessary.
The Secretary's proposal function is an indispensable part of the Act's civil penalty
scheme.
In addition, section 105(a) of the Act, supra, provides
that penalty proposals of the Secretary which are not appealed
are final and not subject to any kind of review.
In fact, almost

352

all the secretary's penalty proposals become final under this
provision. The appeal rate to the Commission from MSHA proposed
assessments were 3.2% in FY'88, 3.7% in FY'89, 4% in FY'90 and
6.7% for the first four months of FY'91. 2 The realities of how
the civil penalty system actually works cannot be ignored. Even
in cases that come before the Commission, the Solicitor submits
sufficient information for the Commission to approve settlements
in the amount of the original assessment in a significant percentage of all settlement cases. Thus, in FY'90 the Commission
approved settlements in the amount of the Secretary's original
proposal in 29% of all settlement cases. 3 The Solicitor's purported distinction regarding finality notwithstanding, Batterton
v. Marshall, supra, is precisely on point and its holding that
notice and comment are necessary for a methodology of mathematical calculations signifies how this case should be decided.
(Solicitor's Brief, p. 16; Operator's Reply Brief, pp. 5-6).
Nor does Air Transport Association of America v. Department
of Transportation, supra, support the Solicitor.
(Solicitor's
Brief, pp. 14-15). The signi~icance of that case is to be found
in the extension of ~Gtice and comment requirements to the
adoption of a procedural framework for adjudication of civil
penalties before the Federal Aviation Administration. The
majority of the court refused to countenance an exception to the
notice and comment requirements for an agency's rules of procedure. What is significant for our purposes is that both the
majority and dissent in Air Transport agreed that changes in
substantive criteria· such as those embodied in the program policy
letter are subject to notice and comment. Air Transport, supra,
at 375-376, 382.
In this connection also, the Solicitor's representations
regarding the allegedly voluntary nature of the proposed rulemaking which the Secretary has undertaken regarding citations issued
after January 1 1991, are not persuasive. As set forth herein,
judicial precedent makes clear that notice and comment under the
APA are required for the changes the Secretary wants to make.
The proposed rulemaking recognizes this and is inconsistent with
the attempt of the program policy letter to act without reference
to the safeguards of the Administrative Procedure Act.
Finally, notice and comment cannot be excused on the basis
of the "good cause" exception.
5 U.S.C. § 553(b) (3) (B). As
noted above, the Secretary's initial response to the court's
mandate in Coal Employment Project, et. al. v. Dole, supra, was
2

See, Solicitor's response filed February 12, 1991.

3

See, Memorandum dated February 25, 1991, from Chief Docket
Clerk, which was admitted into the record at the oral Argument as
ALJ Exhibit No. 1.
(Tr. 4).

353

interim regulations which relied upon the immediacy of the
court 1 s instructions as constituting good cause for dispensing
with notice and comment. The court struck down that portion of
the interim regulations which it perceived as contrary to its
decision. The program policy letter is, of course, not an
interim regulation and does not even refer to the good cause
exception. The Solicitor's argument that the good cause exception applies because the letter accomplishes the result ordered
by the court, must fail in light of the fact that, as held above,
the letter goes far beyond the court's interim instructions.
(Solicitor's Brief, pp. 18-19}.
In light of the foregoing, I conclude that notice and
comment under the Administrative Procedure Act are necessary
before the program policy letter can be effective.
conclusion
The foregoing is dispositive of the claims made by the
parties.
It is noted that th~.. operator also attacks the program
policy letter on its merits.
The substantive validity of pending
changes in the treatment of prior history is presented in the
proposed rulemaking.
In light of the several holdings rendered
herein, it is neither necessary nor appropriate to consider the
merits.
Order
In light of the. foregoing, it is ORDERED that the operator's
motion for remand be GRANTED.
It is further ORDERED that the Secretary recalculate her
proposed penalties without reference to Program Policy Letter
Nao P90-III-4o

i~
~
"

\ \ 0
------·,--o.--v..,..r__,1
Paul Merlin
Chief Administrative Law Judge
Distribution~

William Lawson, Esqov Office of the Solicitor, U. s. Department
of Laboru 2015 Second Avenue North, Suite 201, Birmingham, AL
35203
(Certified Mail)
Douglas N. White, Esq., Counsel, Trial Litigation, Office of the
Solicitor 1 u. S. Department of Labor, Room 414, 4015 Wilson
Boulevard, Arlington, VA
22203
(Certified Mail)

354

Carl c. Charneski, Esq., Acting Counsel, Appellate Litigation,
Office of the Solicitor, U. s. Department of Labor, 4015 Wilson
Boulevard, Arlington, VA 22203
(Certified Mail)
Thomas c. Means, Esq., J. Michael Klise, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, NW., Washington, DC 20004-2505
(Certified Mail)
David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham,
AL 35203-2602
(Certified Mail)

J. Fred McDuff, Esq., Drummond Company, Inc., Post Office Box
10246, Birmingham, AL 35202
(Certified Mail)
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th street, NW.,
Washington, DC 20005
(Certified Mail)
/gl

355

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

20006

March 6, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 90-125
A. C. No. 01-00515-03761

v.

Mary Lee No. 1 Mine

DRUMMOND COMPANY,
INCORPORATED,
Respondent

Docket No. SE 90-127
A. C. No. 01-00821-03677
Mary Lee No. 2 Mine
Docket No. SE 90-131

A. C. No. 01-00515-03763
Mary Lee No. 1 Mine
Docket No. SE 91-2
A. C. No. 01-00323-03642
Chetopa Mine
Docket No. SE 91-3
A. C. No. 01-00821-03681
Mary Lee No. 2 Mine
Docket No. SE 91-4
A. C. No. 01-00515-03768
Docket No. SE 91-15

A. C. No. 01-00515-03770
Docket No. SE 91-20
A. C. No. 01-00515-03772
Mary Lee No. 1 Mine
Docket No. SE 91-21
A. C. No. 01-00821-03682
Mary Lee No. 2 Mine
Docket No. SE 91-29
A. C. No. 01-00515-03775
Mary Lee No. 1 Mine

356

DECISION
Appearances:

Douglas N. White, Esq., and Carl c. Charneski,
Esq., Office of the Solicitor, U. s. Department
of Labor, Arlington, Virginia; and
George D. Palmer, Esq., and William Lawson, Esq.,
Office of the Solicitor, U. s. Department of
Labor, Birmingham, Alabama, for the Petitioner.
Thomas c. Means, Esq., and J. Michael Klise, Esq.,
Crowell and Moring, Washington, D.C.;
David M. Smith, Esq., Maynard, Cooper, Frierson
and Gale, Birmingham, Alabama; and
J. Fred McDuff, Esq., Drummond Company, Inc.,
Birmingham, Alabama, for the Respondent.

Before:

Judge Merlin

In accordance with the decision rendered this day in Secretarv of Labor v. Drummond Company, Incorporated, Docket No.
SE 90-126, it is hereby ORDERlS.D that the operator's motions for
remand in these case be GRANTED.·
It is further ORDERED that the Secretary recalculate her
proposed penalties in these cases without reference to Program
Policy Letter No. P90-III-4.

Paul Merlin
Chief Administrative Law Judge
Distribution~

lliam Lawson,
ov Office of the Solicitor 1 U. s. Department
of Labor, 2015 Second Avenue North, suite 201, Birmingham, AL
35203
(Certified Mail)
Douglas N. White, Esq., Counsel, Trial Litigation, Office of the
icitor, U. s. Department of Laborv Room 414, 4015 Wilson
Boulevard, Arlington, VA
22203
(Certified Mail)
Carl C. Charneskiu Esq., Acting Counsel, Appellate Litigation,
Office of the Solicitor, U. s. Department of Labor, 4015 Wilson
Boulevard, Arlington 1 VA 22203
(Certified Mail)
Thomas C. Means, Esq., J. Michael Klise, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, NW., Washington, DC 20004-2505
(Certified Ma )

357

David M. Smith, Esq., Maynard, Cooper, Frierson & Gale, P.C.,
1901 Sixth Avenue North, 2400 AmSouth/Harbert Plaza, Birmingham,
AL 35203-2602
(Certified Mail)
J. Fred McDuff, Esq., Drummond Company, Inc., Post Office Box
10246, Birmingham, AL 35202
(Certified Mail)
Ms. Joyce Hanula, Legal Assistant, UMWA, 900 15th Street, NW.,
Washington, DC 20005 (Certified Mail)
/gl

358

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

MAP

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 88-202-M

Vo

IDEAL CEMENT COMPANY,
Respondent

DECISION AFTER REMAND
Before:

Judge Morris

On November 27, 1990, .the Commission reversed in part the
JudgeYs decision and remanded this case for further
consideration.
In its order of remand the Commission ruled that the absence
of side screens on the operator's uni-loader constituted an
equipment defect within the meaning of 30 C.F.R. § 56.9002.
Specifically, the Commission ruled that:
Although Allied Chemical Corp. [6 FMSHRC 1854u August
1984] focused on a relatively common type of equipment
def ect--one affecting the functioning of the equipment~-we have no difficulty in concluding that the term
~equipment defect' can also extend to a defective or
missing component that does not affect the operation of
the equipmento
(Slip Opinion at 6).

The Commission further remanded the case for findings of
fact and conclusions thereon as specified in the order of remand.
At the hearing the following individuals testified for the
Secretary~

Robert Eo Stinson, metal and non-metal Inspector for the
State of Montana.
Vincent J. Schafer, Ideal maintenance man.
Stephen M. Carey, Ideal heavy equipment operator.

Steven L. Livingood, Ideal control chemist.

359

Archie Huenergardt, control room operator and lab technician
at the time of the accident, now an Ideal electrician.
Marvin Doornbos, Ideal maintenance man.
Stanley Veltkamp, Ideal maintenance man.
Eric Shanholtz, mine safety and health inspector for MSHA.
Darrell Woodbeck, metal and non-metal inspector for MSHA.
The following individuals testified for respondent:
Bert Todd, Ideal yard foreman.
Gary Huls, Ideal production supervisor.
William Fairhurst, Ideal mill supervisor.
Arlene Sherman, Ideal Personnel and Industrial Relations
Administrator respom~ible fo'r plant safety.
Based on a preponderance of the substantial, reliable and
probative evidence I enter the following:
FINDINGS OF FACT
1. The side guards on the uni-loader are especially
designed in the ROPS to prevent contact with the lifting arms.
Mr. Bertagnolli would not have been killed if the side screens
had been in place.
{Stinson, 254, 257).
2o
There were no eyewitnesses to the accident but Inspector
Woodbeck concluded Mro Bertagnolli 1 s head and part of his torso
were outside of the uni-loader when the arms raised and pinned
him against the top of the ROPS. Side screens would have
prevented him from being in this position.
(Woodbeck, 357u
375).

Jo The purpose of the side screens is to keep your arms out
from underneath the loader while you are operating it.
(Todd 0
404)

01

0

4o
When the operator sits in the uni-loader everything is
pretty closen
(Doornbus8 171) a
0

5o
The overall width of the uni-loader was 54 inches. The
width between the lifting arms was 45.4 inches.
(Specifications
pamphlet, Exhibit P-24, third page).

6. Prior to the accident Ideal modified its 1835 Case Uniloader in the following manner:

360

a) the ROPS were lowered four inches (Stinson, 320;
Sherman, 4 55) •
b) the tires, originally lO to 11 inches wide, were
replaced with 6 to 7 inch wide tires (Schafer, 38; Sherman
445) •

c) the company also manufactured a jack hammer
attachment. This was not standard equipment from the Case
company (Todd, 406).
d) a piece of plywood was attached to the front of the
uni-loader (Schafer, 42, 43).
7.
Screens on the uni-loader have a tendency to interfere
with the operator's side vision, especially to the left. An
equipment operator testified he had to see the rear tires to back
the equipment out of the kiln. The ramp is only so wide. Side
screens prevented him from seeing the rear tire (Livingood, 138,
139).

8. The air hammer itself was attached to a backing plate.
The inspector found that with the jack hammer raised he could not
see the drill point (Stinson, 254).

9. During the kiln job some workers wanted the side screens
on the uni-loader; others did not (Carey, l l l ; Fairhurst, 426429).

10. The decision to use or not use side screens was left to
the equipment operators (Carey, l l l ; Fairhurst, 429).

11. The side screens were either on and off from time to
both for yard and kiln work (Huenergardtu 147 0 148;
Schaferu 41~ Woodbeck 0 356u 373).
time~

12. Supervisors did riot require or prevent the use of side
screens (Carey, 103-104).

13. Ideal 0 s plant manager told Inspector Stinson that the
side screens had been removed for some time (Stinson 0 247).
14.

The cornpany 1 s safety manual contains the following

provision~

Machine guards and other safety devices are
provided for your protection. Guards shall
not be removed except for making repairs,
cleaning, dressing, oiling or adjusting and
then only by authorized persons when machines
are stopped. Replace guards when work is
complete~ and before lock outs are removed.

361

(Fairhurst, 432; Exhibit P-29, page 9,
paragraph 5) •
PISCUSSION AND FURTHER FINDINGS
The evidence is essentially uncontroverted: prior to
acquiring the Case uni-loader in 1981 or 1982 it was necessary to
remove the cage on Ideal's loader to get it inside the kiln (Tr.
455). Due to width and height restrictions the 1835 Case Uniloader was modified by lowering the ROPS and installing smaller
tires (Tr. 455).

In the cylindrical kiln the lights were not too good. The
kiln itself is 300 feet long and 10 to 12 feet wide. The uniloader was estimated at 12 feet long and 3-1/2 to 4 feet wide
(Tr. 39, 125, 141).
In the kiln area the operator of the uni-loader uses the
jack hammer attachment to knock out the overhead bricks (Tr. 91).
After a sufficient number of worn out bricks are removed the kiln
is then rotated and the top becomes the bottom (Tr. 63).
In knocking down the 4 inch by 8 inch bricks the operator
maneuvers the loader over the fallen brick to reach more bricks
(Tr.

34, 75).

Immediately before the accident it appeared to witness
Veltkamp that Mr. Bertagnolli could not get the machine in
position (Tr. 175}. It seemed to witness Doornbos that Mr.
Bertagnolli was having trouble knocking the brick down. He
testified bricks are hard to get out, especially the first brick
(Tr. 161).
Given the above scenario it appears that the lack of side
screens affected safety since Mro Bertagnolli was crushed by the
lifting arms while he was operating the uni-loadero Given the
lighting conditions, his work, the difficulty of seeing what he
was trying to accomplish and the lack of side screens I conclude
that Mro Bertagnolli leaned outside the confines of the uniloader at the same time the lifting arms were being raised (or
lowered)o The presence of side screens would have prevented this
accidento
The presence of side screens also prevent any bricks from
striking the operatoro As heavy equipment operator Carey aptly
stated nwhen you're knocking brick out, you always had a chance
of catching a brick coming into your lap or whatnot" (Tr. 88).
Carey was one of the workers who would go to the garage for the
screens and put them on; however, there were times, other than
the kiln job, when he operated the uni-loader without side
screens (Tr. 88)0

362

There is no evidence of the precise measurements of the
distance between the side arms and the operator's cab. However,
the photographs indicate and confirm witness Doornbus• testimony
that when the operator sits in the cab everything is "pretty
close" (See and compare Exhibits P-9, P-16, P-17, R-2 and the
drawings in Exhibit P-24).
The specifications do not indicate the distance from the
arms to the operator's cab. But the total distance between the
lifting arms, at mid-point, is shown as 45.4 inches.
One of the three principal uni-loader operators who
testified complained that the side screens interfered with his
view of the rear tires when backing the equipment out of the
kiln.
In view of the obvious width restrictions in the kiln I
find Mr. Livingood's testimony to be credible. However, at the
time of the accident Mr. Bertagnolli was attempting to remove
bricko He was not backing out the uni-loader.
Any problem that exists, ... in connection with backing up the
equipment may be solved by constructing a wider entrance ramp to
the kiln.
(Exhibit P-2 shows present ramp.)
Ideal's safety policies did not prevent the removal of the
side screens (Facts 9-14)~
The witnesses essentially all testified the placement or
removal of side screens was left to the individual equipment
operators.
If Ideal had a policy requiring the use of side screens it
was not enforced.

The record contains no evidence of any industry or
manufactureras policy regarding the removal of the side screens
and the circumstances under which the side screens could be
removed without impairing safety.
In its order of remand the Commission noted that in
interpreting and applying broadly worded standardsu the
appropriate test is whether a reasonably prudent person familiar
with the mining industry and the prote9tive purposes of the
standard would have recognized the specific prohibition or
requirement of the standard 0 citing Canon Coal Co., 9 FMSHRC 667u
668 (April 1987) 9 Quinland Coal, Inc., 9 FMSHRC 1614 0 1617-18
(September 1987)0
The Commission further emphasized that the reasonably
prudent person test contemplates an objective--not subjective-analysis of all the surrounding circumstances and factors bearing
on the inquiry in issue, Great Western Electric Company, 5 FMSHRC
840, 841-42 (May 1983); U.S. Steel Corp., 5 FMSHRC 3, 5 (January

363

1983); Alabama By-Products, 4 FMSHRC 2128, 2129 (December 1982).
From the total record ·r conclude that a reasonably prudent
person familiar with the mining industry and the protective
purposes of the standard would have recognized its requirements.
In particular, the removal of worn-out brick from a kiln takes
place three to four times per year (Tr. 35).
Each clean-out
takes two to three days (Tr. 35).

A reasonably prudent operator would recognize the
requirements since, in the work process, the company would
observe two areas that would affect the safety of the operator.
The initial area involves the bricks themselves as they are
chipped from overhead. Some bricks can end up in the lap of the
operator.
Side screens, which came as standard equipment on the
Case Uni-loader, would have prevented the operator from being
struck by any falling bricks.
The second area involved th~ lifting arms and the hydraulic
ram. An operator .might not necessarily be leaning outside of the
uni-loader but with the lifting arms and ram in close proximity,
an operator's arms could be caught or pinched by the lifting arms
and ram.
See Exhibits P6, P9, PlO, Pll, Pl2, Pl3, Pl6, Pl7, R2
and compare with P18 (with ·screens attached)o
The presence of side screens would have prevented
Mr. Bertagnolli from leaning out of the uni-loader. Side screens
would also have prevented any lesser injuries to an operator.
Some evidence establishes that the presence of the side
screens adversely affected safety. This occurred when the uniloader operator was backing the equipment out of the kiln and
down the rampo As previously stated this problem might well be
handled by
construction of a wider rampu (See Exhibit P-3 0
Entrance to ramp)
In any event, backing the equipment down the
ramp was not the work being done when Mr. Bertagnolli was
crushed.
o

The Commission has ruled the missing screens constituted an
equipment defect within the. meaning of the regulation. Since I
conclude the defect affected safety and since I further find the
regulation was applicable to Ideal it follows that the citation
should be aff irmedo
CIVIL PENALTY
Inasmuch as the citation is to be affirmed it is appropriate
to assess a civil penalty.
The statutory criteria to assess such penalties are
contained in§ llO(i) of the Act, 30 u.s.c. § 820(i).

364

The operator's history, as evidenced by Exhibit P-27,
indicates Ideal received 35 citations between January 1986 and
April 1987. I consider this an average adverse history. Under
the broad scope of prior favorable history I note the plant
received safety awards. One was in 1982 for 3000 consecutive
days without an accident (Tr. 443, Exhibit R7). Further, since
the 1950s the Trident plant has, on two occasions, worked over
4000 days without an accident (Tr. 442).
Ideal appears to be a medium sized operator. Its 80
employees at the Trident plant annually produce 300,000 tons of
cement.
The Trident plant is one of nine plants nationwide (Tr. 23,
440). In view of its size it appears the penalty hereafter
assessed is appropriate.
Ideal was negligent. The uni-loader received an exceptional
amount of attention due to its many modifications. The company
should have known of the probability that the equipment operator
could be struck by falling brick or pinched by the arms or ram of
the equipment. These~factors cause me to conclude that the
operator's negligence was high since it took no remedial action.
The record indicates Ideal was in debt and close to
bankruptcy three years ago (Tr. 439). However, Ideal did not
present any information concerning its financial condition at the
time of the hearing. Therefore, in the absence of any facts to
the contrary, I find that the payment of penalties will not cause
Ideal to discontinue its business. Buffalo Mining Co., 2 IBMA
226 (1973); Associated Drilling. Inc., 3 IBP.i..A 164 (1974).
Mro Bertagnolli died when he was crushed by the lifting armo
In view of this the gravity of the violation is apparento
Ideal demonstrated its statutory good faith by abating the
violative condition.
Considering all of the statutory criteria I deem that a
civil penalty of $8000 is appropriateo

365

For the foregoing reasons, I enter the following:

ORDER
Citation No. 2649413 is AFFIRMED and a civil penalty of
$8000 is ASSESSED.

Law Judge

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80290
(Certified Mail)
James J" Gonzalesr Esq"" HOLLAND & HART, 555 - 17th Streetv Suite
2900 PoOo Box 8749 Denveru CO 80201
(Certified Mail)

slk

366

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

20006

March 8, 1991

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 91-2
A. C. No. 11-00586-03642

v.

Murdock Mine

ZEIGLER COAL COMPANY,
Respondent
DECISION
Before:

Judge Merlin

Pursuant to an order previously entered in this matter,
the above-captioned docket number now contains only Citation
No. 03406060 which presents the issue of the validity of the
Secretary's instructions regarding "excessive history" which
are to be followed in proposing penalties under the Mine Act.
The briefs and motions filed in the instant case on this
issue are virtually identical to those filed in Drummond Company
Inc., Docket No. SE 90-126. On March 6, 1991, a decision was
rendered in Drummond.
In accordance with the decision in Drummond, it is hereby
ORDERED that the operator's motion to remand be GRANTED and that
the Secretary RECALCULATE the proposed penalty without reference
to Program Policy Letter No. P90-III-4.

-= p~'

Paul Merlin
Chief Administrative Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U. s. Department of Labor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604
(Certified Mail)
Douglas White, Esq., counsel, Litigation, Office of the Solicitor, U. s. Department of Labor, Room 414, 4015 Wilson Boulevard,
Arlington, VA 22203
(Certified Mail)
3regory s. Keltner, Esq., Zeigler Coal company, 50 Jerome Lane,
?airview Heights, IL 62208
(Certified Mail)

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367

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

Mill'

h ~X't\

CONTEST PROCEEDINGS

GATLIFF COAL COMPANY, INC.,
Contestant

v.

Docket No. KENT 89-242-R
Citation No. 3178703; 8/3/89

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

Docket No. KENT 89-243-R
Citation No. 3178704; 8/3/89
Docket No. KENT 89-244-R
Order No. 3178706; 8/3/89
Docket No. KENT 89-245-R
Citation No. 3178707; 8/3/89
Docket No. KENT 89-246-R
Citation No. 3178708; 8/3/89
Docket No. KENT 89-247-R
Citation No. 3178709; 8/3/89
Docket No. KENT 89-248-R
Citation No. 3178710; 8/3/89
Docket No. KENT 89-249-R
Order No. 3178711; 8/3/89
Docket No. KENT 89-250-R
Citation No. 3178712; 8/3/89
Docket No. KENT 89-251-R
Citation NO. 3178713; 8/3/89
Docket No. KENT 89-252-R
Order No. 3178714; 8/3/89
Gatl

No. 1 Mine

Mine ID # 15-04322

368

CIVIL PENALTY PROCEEDINGS

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

Docket No. KENT 90-100
A.C. No. 15-04322-30530

v.

Docket No. KENT 90-215
A.C. No. 15-04322-30531

GATLIFF COAL COMPANY, INC.,
Respondent

Gatliff No. 1 Mine
DECISION

Appearances:

Before:

Robert I. Cusick, Esq., Wyatt, Tarrant and Combs,
Louisville, Kentucky, for Gatliff Coal Company,
Inc.;
Anne Knauff, Esq., U.S. Department of Labor,
Office of the Solicitor, Nashville, Tennessee,
for the Secretary of Labor.

Judge Melick

These consolidated cases are before me under sections 105(d)
and 107(e) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. 801 et seq., the "Act, 11 to contest citations and
withdrawal orders issued by the Secretary of Labor to Gatliff
Coal Company, Inc., (Gatliff) and for review of civil penalties
proposed by the Secretary for those violations of mandatory
standards alleged therein.
Citation No. 3178703 alleges a violation of the standard at
30 C.F.R. § 50.10 and charges as follows:
A fatal accident occurred at 3:20 a.m. and the
victim was pronounced dead at local hospital at
5~00 a.m.
The company never reported this accident to
MSHA"
An employee heard the announcement on the radio
around 8~00 a.m. and contacted the subdistrict manager.
The first company contact with MSHA was by Freddie
Maggard at 8:30 a.m., on 8/1/89, returning a call from,
the MSHA subdistrict manager.
The standard at 30 C.F.R.

§

50.10 provides as follows:

If an accident occurs an operator shall
immediately contact the MSHA District or Subdistrict
Office having jurisdiction over its mine.
If an
operator cannot contact the appropriate MSHA District
or Subdistrict Office it shall immediately contact the
MSHA Headquarters Office in Washington, D.C. by
telephone, toll free at 202-783-5582.
The testimony of MSHA Inspector James P. Payne, Sr., in

369

regard to the instant citation, is undisputed. The accident
giving rise to this citation occurred at 3:20 a.m., on
August 1, 1989. According to Payne the first contact from
Gatliff came from Freddie Maggard, an official of Gatliff, when
he returned a call to the MSHA office in Barbourville, Kentucky
around 8:30 that morning.
Payne also acknowledged that the MSHA
subdistrict manager had received information relating to the
accident earlier that morning and indeed that information had
been relayed to Inspector Payne around 8:00 that morning.
Payne
testified that after receiving this information he did not report
to the mine site until about noon that day.
It did not appear
that the accident site had been altered.
Indeed Payne
acknowledged that he would not have ,done anything differently had
he been informed of the accident earlier. Payne also
acknowledged that had an MSHA office had been contacted by 7:00
that morning he would not have cited Gatliff for the instant
violation.
The testimony of Gatliff Safety Director John Blankenship is
not inconsistent. Blankenship first learned of the accident
while home in bed when he received a call around 4:00 a.m. He
arrived at the mine-site around 4:30 a.m. after the ambulance had
already departed with victim, Boyd Fuson. Concerned about the
Fuson's condition, Blankenship went immediately to the hospital
where he learned that Fuson had died.
Around 5:40 that morning Blankenship first made efforts to
telephone the MSHA offices but without success. He later
telephoned the MSHA office around 5:45 a.m. and again around
6:00 a.m., but again without success. Blankenship testified that
he was aware that a toll free telephone number appeared in the
Code of Federal Regulations but that his copy of the code was in
his office some 40 miles away. He then succeeded in reaching a
state mine safety officialf Leroy Gross, and he thought Gross
would call the MSHA District Office"
The evidence shows that the accident at issue occurred
about 3:20 a.m. on August 3, 1989, and that Gatliff officials did
not execute direct contact with MSHA officials until about 8:30
on that morning.
I therefore conclude that Gatliff failed to
cvimmediately contact 11 an MSHA office as required by the cited
standard.
I find however, under the particular circumstances of
this case, that Gatliff officials made good faith efforts to make
timely contact with MSHA offices which were not open during the
early hours of August 1. I also take into consideration that the
accident scene was admittedly not tampered with and Gatliff
officials cooperated in the MSHA investigation. Under these
particular circumstances the violation was not of significant
gravity nor did it involve significant negligence. Considering
the criteria under section llO(i) of the Act it is apparent that
a penalty o"f $20 would be appropriate for the instant violation.

370

Citation No. 3178704, issued pursuant to section 104(d) (1)
of the Act, alleges a "significant and substantial" violation of
the standard at 30 C.F.R. § 77.1605(k) and charges as follows: 1
The haulage road leading to the backfill ramp was
not provided with sufficient berm, as required. The
berm ranged from 0-2 feet in height and the truck axle
was three feet in height. A fatal haulage accident
occurred when a Euclid R-50 rock truck travelled
through the berm and down a 120 foot embankment. The
driver was thrown from the vehicle.
11
The cited standard provides that:
[b]erms or guards shall
be provided on the outer bank of elevated roadways."

It is not disputed that the area cited was the outer bank of
an elevated roadway. According to Inspector Payne the berm in
the area cited was from o to 2 feet high. Payne opined that an
axle-high berm, at least i.e. 3 feet high, may have been adequate
although he conceded that even a 3 foot berm would not have
stopped a truck such as that i~volved herein when fully loaded.
Payne observed however;that such a berm would have turned the
wheels of the truck away from the embankment.
Payne believed
that the operator was highly negligent because any prudent person
should have observed this inadequate berm. He also opined that
the violation was "significant and substantial" because an
1

section 104(d) (1) provides as follows:
If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of any mandatory health or safety standard, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of such
nature as could significant and substantially contribute to the
cause and effect of a coal or other mine safety or health hazard,
and if he finds such violation to be caused by an unwarrantable
failure of such operator to comply with such mandatory health or
safety standards, he shall include such finding in any citation
given to the operator under this Act.
If, during the same
inspection or any subsequent inspection of such mine within
90 days after the issuance of such citation, an authorized
representative of the Secretary finds another violation of any
mandatory health or safety standard and finds such violation to
be also caused by an unwarrantable failure of such operator to so
complyr he shall forthwith issue an order requiring the operator
to cause all persons in the area affected by such violation,
except those persons referred to in subsection (c) to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation memory accordingly has been abated.

371

accident had in fact occurred resulting in fatal injuries. The
violation was abated by the dumping of refuse along the outer
bank to form a berm 3 to 3 1/2 feet high.
According to Gatliff Safety Director John Blankenship, the
area of the accident had been for the most part bermed except for
one turn-around area. Blankenship testified that Operator's
Exhibit No. 5, a photograph, depicts the area where the truck
passed over the berm. He observed, based on tests performed at
the mine site, that even a 5 foot berm with the same type truck
under similar circumstances would not prevent overtravel.
Based on the undisputed evidence alone however it is clear
that there was no berm in place in at least some portion of the
outer bank of the cited roadway. Under the circumstances the
violation is proven as charged. In reaching this conclusion I
have not disregarded Respondent's argument that under the cited
standard a reasonably prudent mine operator could not have known
what size berm was required. However in this case the evidence
shows that at least some areas of the cited elevated roadway had
no berm at all. Accordingly.the.Respondent's argument that it
did not know what size berms were required is inapposite to the
specific facts herein. The violation was also "significant and
substantial". While the truck herein apparently passed through
an area of roadway that may have had a two-foot berm, clearly in
the areas of elevated roadway where no berm existed the violative
condition was even more serious. Clearly fatal injuries were
reasonably likely. See Mathies Coal Company 6 FMSHRC 1 (1984).
I also find that the violation herein was the result of
"unwarrantable failure".
The complete absence of berms over
sections of the cited elevated roadway in this case may
reasonably be inferred to have resulted from a lack of
supervisiono
It
not disputed that there was no supervisor on
site
this area during the shift at issue. This omission
of
such an aggravated nature as to constitute gross negligence and
1
i unwarrantable
failure".
See Emery Mining Company, 9 FMSHRC 1997
(1987).
Considering the factors under section llO(i) of the Act
I find that the proposed civil penalty of $4,000 is indeed
appropriate.
Order No. 3178705r also issued pursuant to section l04(d) (1)
of the Act, alleges a violation of the standard at 30 C.F.R. §
77.1701 and charges as follows:
Emergency communications were not available at the
Colonel Hollow Job Number 75. Communications with the
services that provide emergency medical assistance and
transportation were discontinued when the company
vehicle with the company radio left the mine property.
On 8/i/89, following a serious accident which occurred
at approximately 3:20 a.m., employees were required to

372

travel approximately 2 1/2 miles to a public telephone
to summons an ambulance.
The cited standard, 30 C.F.R. § 77.1701 provides as follows:
(a} Each operator of a surface coal mine shall
establish and maintain a communication system from the
mine to the nearest point of medical assistance for use
in an emergency.
(b) The emergency communication
system required to be maintained under paragraph (a) of
this section may be established by telephone or radio
transmission or by any other means of prompt
communication to any facility (for example, the local
sheriff, the State highway patrol, or local hospital)
which has available the means of communication with the
person or persons providing emergency medical
assistance or transportation in accordance with the
provisions of paragraph (a) of this section.
According to the undisputed testimony of Inspector Payne,
the foreman's truck, which carried a radio sufficient to provide
emergency communication, had departed the mine site around 5:30
or 6:00 p.m., the evening before the accident leaving only a
bulldozer with a citizen band radio. Payne observed that the
citizen band radio was incapable of reaching the mine office the
hospital or the police station because of its limited range.
He
also noted there were no telephones at the job site and the
nearest telephone was 2 1/2 miles away.
Payne also maintained
that the subject accident had occurred around 3:20 a.m., so that
there purportedly had been no radio communications since 6:00
p.m. the night before. Payne acknowledged however that a citizen
band radio could provide adequate means of communication under
the cited regulation if it was properly monitored.
According to James Meadors, a Gatliff foreman, the men at
the Colonel Hollow Job No. 75 were able to communicate by citizen
band radio to the mechanics' trucks the lube truck and/or to the
foreman's truck within a 3 mile range. Each of those trucks
carried a radio sufficient to communicate with the mine office
and thereupon police and ambulance emergency services could have
been called by telephone. According to Meadors the lube truck
with such radio was at the job site three miles from the Colonel
Hollow Job site.
Donald Hopkins was one of two miners travelling to the
nearest telephone that morning to call for an ambulance. Hopkins
testified that he did not think to use the citizen band radio.
Safety Director Blankenship testified that indeed emergency
notification was then available by radio from the lube truck to
Gatliff off ices where telephones were located to further
communicate as necessary for emergency services. According to
Blankenship the lube truck was at the adjacent job site on the

373

morning of the accident only three miles from the accident.
Within this framework of evidence I cannot find that the
Secretary has sustained her burden of proving the violation
charged herein. While Inspector Payne testified that there was
no radio at the Colonel Hollow Job site at the time of the
accident sufficient to communicate with the mine office some 15
miles away, he failed to consider the citizen band radio then at
that job site which was capable of communicating with the lube
truck radio which could then communicate with the mine off ice
where i t is undisputed there was a telephone.
Under the
circumstances Order No. 3178705 must be vacated.
Citations 3178707, 3178708, 3178709 and 3178710 all charge
violations of the regulatory standard at 30 C.F.R. § 77.1710(i).
That standard provides in relevant part as follows:
Each employee working in a surface coal mine ••. shall
be required to wear protective clothing and devices as
indicated below:

***"

(i) Seat belts in a vehicle where there is a danger of
overturning and where roll protection is provided.
In particular, Citation No. 3178707 charges as follows:
It was evident that seat belts were not being worn
on the R-50 rock truck and that the driver was thrown
from the vehicle when it overturned. The belts were
dirty and it did not appear that they had been worn for
some time. This vehicle was travelling over hazardous
terrain where there was danger of overturning. These
conditions were observed on 8/l/89i during a fatal
accident investigation"
Gatliff does not dispute that the cited trucks were
operating in areas subject to the danger of overturning but
maintains that the R-50 rock trucks do not need seat belts under
that standard in any event because 11 roll protection" is not
provided
those vehicles.
Even assuming, arguendo, that
haulage trucks such as the one at issue are not required by the
standard at 30 C.F.R. § 11:403(a) to have "roll protection 11 it is
nevertheless apparent that the truck at issue in fact did have
g'roll protection;u.
In this case the credible evidence shows that the apron of
the truck dump bed overhung the cab of the truck in a manner
which provided some roll protection when in the lowered position.
While the apron may not have provided the best possible
protection it provided sufficient protection to even meet the
definition set forth in 30 C.F.R. § 77.2(w).
Since the apron did
provide "roll protection" seat belts were required to be worn in

374

accordance with the cited standard.
It may also reasonably be inferred from the evidence in
this case that the victim was not wearing a seat belt at the time
the cited truck overturned. He was thrown from the truck and the
undisputed testimony was that the steering wheel was bent upwards
as his body exited. The seat belt was also found unclasped
behind the driver's seat. Under the circumstances it may
reasonably be inferred that the victim was not wearing his seat
belt at the time his truck overturned. Accordingly I find that
the violation is proven as charged.
I also find that the
violation was "significant and substantial". See Mathies Coal
Company, supra. The fatal accident in this case provides ample
support for this conclusion.
I do not however find that the Secretary has proven her
claims of high negligence. There is insufficient evidence that
this driver's failure to wear a seat belt was the result of
inadequate training, discipline or supervision. According to Mr.
Blankenship he had restated to his employees in the annual
refresher training the previous June the necessity to wear seat
belts. The victim was present at this training.
Blankenship
also testified that he had never seen the victim not wear his
seat belt.
Under the circumstances and considering the criteria under
section llO(i) of the Act I find that a civil penalty of $400 is
appropriate for this violation.
Citation No. 3178708 charges as follows:
It is evident that the seat belt is not being used
in the Euclid R-50 rock truck, company No. 3027. The
belt is dirty and was coupled behind the driver's seat
and a
hoses were stacked on top of the belt. This
vehicle was travelling over hazardous terrain where
there is danger of overturning. These conditions were
observed 8/1/89, during a fatal accident investigation.
According to Inspector Payne the cited truck had been
operating earlier on the shift during which the fatal accident
occurred, had been parked some two to three hours before the
accident and was not then being used.
Payne surmised however
from the evidence that the belt was dirty 1 that it was coupled
behind the driver's seat, and that air hoses were stacked on top
of the belt, that the seat belts had not been used when the
truck was in operation earlier on that shift.
According to John Blankenship however, it was common
practice to buckle the belts behind the seats to keep the belts
from the mud on the truck floors.
He noted that the cited truck
had been out of service for some time when the inspector examined

375

it and that it was therefore implicitly not surprising that the
belts were in a dirty condition. Blankenship also noted that the
fact that air hoses may have been stacked on top of the belts in
a truck that had been taken out of service hours before the
inspection does not necessarily lead tQ the inference that the
seat belts had not been used when the truck was last operated.
The fact that the seat belts were dirty, that the belts were
buckled behind the driver's seat, and that air hoses were stacked
on top of the seat belts is not sufficient from which to infer
that seat belts were not used 12 hours earlier while the truck
was operating. The truck had been taken out of service 2 or 3
hours before the accident at issue and Inspector Payne admittedly
did not arrive at the accident site for nearly 12 hours after the
truck had been withdrawn from service. The Secretary's suggested
inference is therefore not reasonable under the circumstances and
the required nexus between the evidentiary facts and the ultimate
fact to be inferred does not exist. See Mid-Continent Resources,
6 FMSHRC 1132 (1984), Garden Creek Pocahontas, 11 FMSHRC 2148
(1989). Under the circumstances I
find that the Secretary has
failed to sustain her_burden 'of proving the alleged violation and
the citation must be vacated.
Citation No. 3178709 charges as follows:
It is evident that the seat belt is not being used
in the Michigan 475 end loader company No. 2035. The
seat belt is dirty and was placed behind the operator's
seat. This vehicle was travelling over hazardous
terrain where there was a danger of overturning.
These conditions were observed on 8/1/89, during a
fatal accident investigation.
Againf according to Inspector Payne the citation at issue
was based upon his conclusion that the seat belts on the cited
equipment were dirty and that they were "placed behind the
operator's seat". Payne did not observe any of the equipment in
operation without seat belts and never asked the equipment
operator 1 s whether they indeed used seat belts. Again, under the
circumstances I do not find a sufficient nexus between the
evidentiary facts and the ultimate facts the Secretary seeks to
have inferred. Under the circumstances there is insufficient
evidence to support the alleged violation and this citation must
also be vacated.
Citation No. 3178710 charges as follows:
It is evident that the seat belt is not being used
in the bull dozer. The seat belt is dirty and was
placed behind the operator's seat. This vehicle was
travel~ing over hazardous terrain where there was
danger of overturning. These conditions were observed

376

on 8/1/89, during a fatal accident investigation.
This citation is also purportedly based upon Inspector
Payne's inference (from dirty seat belts and that the seat belts
were found behind the operator's seat) that the seat belts were
not being used.
For the reasons already stated I find this
evidence insufficient. Citation No. 3178710 must therefore also
be dismissed. In reaching this conclusion I have not disregarded
the admission of bulldozer operator Donald Hopkins that he did
not wear his seat belt all the time. The citation alleges a
violation on August 1, 1989, however and there is no evidence to
connect this admission of Hopkins to the alleged failure to wear
his seat belt on August 1, 1989. The Secretary has therefore
failed to meet her burden and Citation No. 3178710 must therefore
also be vacated.
Withdrawal Order No. 3178706 was issued pursuant to section
107(a) of the Act. That section provides in part as follows:
If, upon any inspection or investigation of a coal
or other mine wh~ch is subject to this Act, an
authorized representative of the Secretary finds that
an imminent danger exists, such representative shall
determine the extent of the area of such mine
throughout where the danger exists, and issue an order
requiring the operator of such mine to cause all
persons except those referred to in section 104(c), to
be withdrawn from, and to be prohibited from entering,
such area until an authorized representative of the
Secretary determines that such imminent danger and the
conditions or practices which caused such imminent
danger no longer exist.
Section 3(j) of the Act defines "imminent danger" as the
existence of any condition or practice in a coal or other mine
which could reasonably be expected to cause death or serious
physical harm before such condition or practice can be abated.
In this case it is charged that a "practice" rather than a
"condition" existed i.e. "a common practice at this operation to
not wear the seat belt provided in the mobile equipment.iu
In Rochester and Pittsburgh Coal Company v. Secretary of
Labor, 11 FMSHRC 2159 (1989), the Commission set forth the
analytical framework for determining the validity of imminent
danger withdrawal orders issued under section 107(a) of the Act.
The Commission indicated that it is first appropriate for the
judge to determine whether the Secretary has met her burden of
proving that an "imminent danger" existed at the time the order
was issued. The Commission also observed however that even if an
imminent danger had not then existed, the findings and decision
of the inspector in issuing a section 107(a) order should
nevertheless be upheld "unless there is evidence that he has

377

abused his discretion or authority". Rochester and Pittsburgh,
supra. at p.2164 quoting Old Ben Coal Corp. v. Interior Board of
Mine Operations Appeals, 523 F.2d 25 at p.31 (7th Cir. 1975}.
There is no evidence that the issuing MSHA inspector ever
observed any of the cited mobile equipment operators without seat
belts. However the credible evidence is that the victim of the
accident involving the Euclid haulage truck was not wearing a
seat belt.
In addition it is undisputed that bulldozer operator
Donald Hopkins admitted that he did not wear his seat belt while
operating equipment "all the time".
This evidence I find
sufficient to conclude that the failure to wear seat belts was a
sufficiently established "practiceb within the meaning of section
3(j) of the Act which could "reasonably" be expected to cause
death or serious physical harm before such practice could be
abated. That "practice" therefore constituted an imminent danger
and the order at bar must be affirmed.
Order No. 3178711 issued pursuant to section 104(d) (1) of
the Act, fn.l supra, alleges,?1 "signficant and substantial"
violation of the standard at 30 C.F.R. § 77.1001 and charges as
follows:
Loose overhanging material, (i.e. dirt, trees,
loose rock) was observed on and above the highwall on
the drill bench (Jellico Seam) and above the spoil pit
(Blue Gem Seam). A highwall drill, endloader,
bulldozer, and 2 rock trucks were working in these
areas. These conditions were observed on 8/1/89,
during a fatal accident investigation.
The cited standard, provides that "[l]oose hazardous
material shall be stripped for a safe distance from the top of
p
or highwallsv and the loose unconsolidated material shall be
sloped to the angle of reposer or barriers, baffle boards,
screens 7 or other devices be provided that afford equivalent
protection" 0 ~
According to Inspector Payne, at the time of his inspection
at the Colonel Hollow Job No. 75, on August 1, 1989, there was a
tree overhanging the high wall from the Jellico Seam level and
loose material had not been cleaned off. He also observed
fractured and loose rock on the Blue Gem Seam level. He noted
that equipment was working next to the highwall at the Blue Gem
level and that the highwall was from 60 to 70 feet high.
The
tree was lying flat ready to slide down. He concluded that the
material was loose because he observed cracks in it. There was
also activity around the highwall evidenced by drill holes and,
on the lower level, coal had been loaded at the Blue Gem Seam
level.

378

The inspector concluded that the violations were the result
of aggravated conduct, high negligence and "unwarrantable
failure" on the grounds that he believed the foreman should have
observed these conditions during his preshift examination. He
also concluded that the violation was "significant and
substantial" because the material could likely fall off the
highwall injuring drillers and other workers below. He noted
that the large rocks and the tree (approximately 18 to 20 inches
in diameter) could cause such injuries. It was "highly likely"
for an accident to occur because of its position on the highwall.
Moreover persons loading holes and drill operators were
unprotected without cabs or other devices.
It is noted however
that Inspector Payne apparently did not inquire and did not
determine whether work was actually being performed in the pit
area.
James Meadors, the day shift foreman, maintains that he told
the night shift workers not to work in the pit area because of
the apparently dangerous highwall conditions and told them that
the conditions would be corrected on the following day shift.
There is no evidence however that Meadors "dangered off" the
area.
Within this framework of essentially undisputed evidence it
is clear that the violation is proven as charged. Since there
was no effective barricade of the endangered area I also find
that the violation was "significant and substantial". While the
day shift foreman may very well have warned some of the workers
present at the time he left the mine site not to work in the
endangered pit area, that warning was clearly not sufficient in
itself. Without barricades, other persons later entering the
mine site could easily wander beneath the dangerous highwall with
a reasonable likelihood that they would suffer serious injuries.
The violation was therefore ''significant and substantial 11 o
Mathies Coal Company, suprao The failure of Meadors or other
supervisory personnel to have 11 dangered offU or physically
barricaded the acknowledged dangerous area also constitutes
negligence of such an aggravated nature as to constitute
nunwarrantable failure"o
Emery Mining Company, supra. Within
this framework and considering the criteria under section llO(i)
of the Act it is clear that the proposed civil penalty of $800 is
warrantedo
Citation No. 3178712 alleges a "significant and substantial"
violation of the standard at 30 C.FoR. § 77.207 and charges as
follows~

Sufficient illumination was not provided in the
pit for a bulldozer pushing down spoil and an endloader loading rock trucks. The only illumination
available was the headlights and backup lights of the
equipment. These vehicles were working in close

379

proximity to a 70-60 foot highwall. These conditions
were observed 8/1/89, during a fatal accident
investigation.
·The cited standard, 30 C.F.R. § 77.207, reads as follows:
Illumination sufficient to provide safe working
conditions shall be provided in and on all surface
.structures, paths, walkways, stairways, switch panels,
loading and dumping sites, and working areas.
While the issuing inspector acknowledged that he did not
observe the cited conditions under night conditions he
nevertheless inf erred from prior night experience that the
existing illumination from vehicle lights alone would not be
sufficient. He noted that while the trucks had four lights and
the endloader had lights on both ends there would nevertheless be
unlighted blind spots during night operations. He noted that the
bulldozer was pushing spoil into the pit at the Blue Gem Level
and that vehicles below including the trucks and loader, were
working within 2 0 to __3 0 feet, of the highwall. With out adequate
illumination of the highwall these operators would be unable to
see material falling off the highwall.
Safety Director John Blankenship disagreed with this
assessment and noted that another MSHA Inspector had previously
examined this site during night operations and had never issued
citations for insufficient lighting. Within the above framework
of evidence however it may reasonably inferred that indeed there
was insufficient illumination of the highwall during night
operations. Clearly the face of the highwall could not be
sufficiently illuminated merely by vehicle lighting as the
vehicles moved about"
In light of the equivocal testimony of the
inspector however I am unable to conclude that the violation was
iusignficant and substantial 11
o

Moreover in light of the undisputed evidence that MSHA
inspectors had previously observed this site during evening hours
and had never previously cited this condition I cannot find that
the operator is chargeable with significant negligence. Within
the above framework and considering the criteria under section
llO(i) of the Act I find that a civil penalty of $50 for the
violation is appropriate.
Citation No. 3178713 similarly alleges a "significant and
substantial" violation of 30 C.F.R. § 77.207 and charges as
follows:
Sufficient illumination was not provided at the
dumping ramp for the rock trucks to dump. The
only illumination provided was the headlights and
backup lights of the rock trucks. These conditions
backf~ll

380

were observed on 1/1/89, during a fatal accident
investigation.
There does not appear to be any direct evidence in the
record concerning this alleged violation.
I am, moreover, unable
to infer from testimony that any such violation occurred. The
citation must accordingly be vacated.
Order No. 31788714, issued pursuant to section 104(d) (1) of
the Act, (See, fn. 1 supra.)
alleges a violation of the standard
at 30 C.F.R. § 77.1713 and charges as follows:
Adequate and sufficient examinations for hazardous
conditions to eliminate such conditions were not being
conducted on the second shift by a certified person.
Numerous violations were observed during a fatal
accident investigation which occurred at 3:20 a.m., on
8/1/89.
It was a practice for the day shift foreman to
make an on-shift examination just prior to leaving work
each day. This one exam;i.nation was usually conducted
around 5:30 p.m •.-to 6:00 p.m. The second shift crew
then worked from 5:30 p.m. until 4:00 a.m., without any
further examinations. Violation Nos. 3178704 through
3178713 were issued. These conditions were observed on
8/1/89 and 8/2/89 during a fatal accident
investigation.
The cited standard, 30 C.F.R. § 77.1713, provides in
relevant part as follows:
At least once during each working shift, or more
often if necessary for safety, each active working area
and each active surface installation shall be examined
by a certified person designated by the operator to
conduct such examinations for hazardous conditions and
any hazardous conditions noted during such examinations
shall be reported to the operator and shall be
corrected by the operator.
The issuing inspector based this order upon his observation
of the existence of the violations charged in the citations and
orders previously discussed. He concluded that this violation
was also "significant and substantial 11 because of those
violations. He also concluded that this alleged violation was
the result of "unwarrantable failure" on the grounds that the
evening shift foreman, who was the only person certified to
perform the required examinations, had left the mine site at 6:00
p.m. the evening before and there was no foreman remaining on the
job at a time when the violative conditions should have been
discovered_by proper inspection. While it is apparent from the
previous discussion in this decision that I do not agree that all
of the violations cited by the issuing inspector were valid, I

381

nevertheless have found sufficient violations from which I can
conclude that the Secretary has proven there was an insufficient
examination performed at this job site.
Indeed the existence of
admittedly dangerous highwall conditions without "dangering off 11
or barricading the area to prevent entry is sufficient alone to
warrant the conclusion that an insufficient examination was
performed and that the failure to perform such an examination was
the result of an aggravated omission constituting gross
negligence and "unwarrantable failure" Failure to properly
conduct examinations and therefore allowing such dangerous
conditions to remain also warrants the conclusion that this
violation was "significant and substantial".
Inasmuch as there is redundancy between the underlying
substantive violations subject to separate civil penalties and
the violation herein I conclude that a reduced civil penalty of
$500
warranted considering the criteria under section llO(i)
of the Act.
At hearing the parties p~esented a settlement agreement with
respect to Citation No. 2996585 in which it was agreed that full
payment of the proposed penalty of $20 would be paid.
I have
considered the representations and documentation submitted in
support of the motion and conclude that the proffered settlement
appropriate under the Act.
ORDER
Citation/Order Nos. 3178705, 3178708, 3178709, 3178710 and
3178713 are vacated. Citation/Order Nos. 3178703, 3178704,
3178707, 3178711, 3178712, 3178714 and 2996585 a~e affirmed.
Imminent Danger Order No. 3178706 is affirmed. Gatliff Coal
Company Inco? is accordingly directed to pay civil penalties
ing
,790 within 30 days of the fa~te
of t\ils de{sion/
I
l
~. (f/l.A_,(, V\
-bary\Melick \
\
Administrative Law Judge

j

Di

J

Anne Knauff, Esq., Office of the Solicitor, U.S. Department of
Laborp 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215

(Certif

Mail)

Robert I. Cusick, Esq., Wyatt, Tarrant & Combs, Citizens Plaza,
Louisville, KY 40202 (Certified Mail)
nb

382

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

MAR 111991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-72-M
A.C. No. 04-01695-05515

v.

Azusa Plant

TRANSIT MIXED CONCRETE COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
AFTER REMAND
Before:

Judge Morris

On February 7, 1991, the Commission remanded the above case.

The record discloses a Decision Approving Settlement was
entered on October 11, 1990.
However, the decision on said date
did not include the agreed settlement of Citation No. 3466442 for
the proposed civil penalty of $600.
After the order of remand, the Judge advised the parties he
would issue a decision approving their agreement and reaffirming
the disposition entered on October llv 1991.
No objection
was filed to the entry of such an ordero
Accordinglyv I enter the followingg
ORDER

lo

The settlement is APPROVED.

2o
Citation No. 3466442 and the proposed penalty of $600
are AFFIRMED.

3o
The decision approving the settlement entered
October llu 1990v is REAFFIRMED.

l"-nl'~___,t.:.~~
orris
ative Law Judge

383

Distribution:
John c. Nagle, Esq., Associate Regional Solicitor, u.s. Department of Labor, 3247 Federal Building, 300 North Los Angeles
Street, Los Angeles, CA 90012 (Certified Mail)
Mr. Gene Wade, TRANSIT MIXED CONCRETE co., 4760 Valley Boulevard,
Los Angeles, CA 90032 (Certified Mail)

ek

384

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

MAR 111991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 90-38
A.C. No. 29-00845-03534

v.

York Canyon

THE PITTSBURG & MIDWAY COAL
MINING COMPANY,
Respondent
DECISION
Appearances:

Mary E. Witherow, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas,
for Petitioner;
Ray D. Gardner, Esq., Pittsburg & Midway Coal Minning Company, Englewood, Colorado,
for Respondent.

Before:

Judge Cetti

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA), charged Respondent with violating
three safety regulations promulgated under the Federal Mine
Safety and Health Act, 30 U.S.Co § 801, et~ (the "Act").
After notice to the partiesv a hearing was held in Pueblov
Colorado on September 2lv 1990. At the hearingf both parties
presented oral and documentary evidence on Citation No. 3240566
concerning the alleged improper grounding of a guy wire, and
Citation No. 3240567 concerning a drag line trailing cable.
At the hearingv testimony was taken from the following
witnesses

lo

MELVIN SHIVELEYu MSHA coal mine inspectoru

2. WILLIAM BECKv electrical supervisor at York Canyon
Pittsburg Midway coal Complex, and EDWARD BOLTON, Respondent 1 s senior electrical engineer. At the end of a full day of hearing, the case had to be
continued. Before the matter was reset for further hearing, the
parties advised they had reached an amicable settlement of all
matters at issue.
In the settlement agreement filed March 4,
1991, Petitioner moved to amend Citations 3240567 and 3240566 to
delete the "significant and substantial" designation.
3o

385

The parties stated that Respondent withdrew its Notice of
Contest to the violation alleged in Citation 3240565 and its
related proposed penalty of $91.00.
Based upon my review and evaluation of the evidence presented at the hearing, I find the settlement agreement to be
reasonable, in the public interest, and consistent with the
statutory criteria in Section 110 of the Act.
The settlement
agreement is approved.

ORDER

1. Citation Nos. 3240566 and 3240567 are MODIFIED to
delete the designation "Significant and Substantial" and, as so
modified, are AFFIRMED.
2.
Citation No. 3240565, alleging a violation of 30 C.F.R.
77o400(a), including its finding that the violation was "Significant and Substantia-1," is AFFIRMED.

§

3. Respondent, if it has not previously done so, is
ORDERED to pay to the Secretary of Labor within 30 days from
the date hereof the sum of $273.00 as and for a civil penalty for
the above Citations. Upon such payment, this proceeding is

DISMISSED.

Distribution~

Mary E. Witherowu Esq., Office of the Solicitor, U~S. Department of Labor 0 525 Griffin Streete Suite 501, Dallas, TX 75202
Certified Mail)
Ray Do Gardner 11 Esqov Pittsburg & Midway Coal Mining Company,
6400 South Fiddler's Green Circle, Englewood 0 CO 80111-4991
Certified Mail)

Mro Robert Butero, International Health and Safety Representative
for UMWA District 13v 228 Lea Streetv Trinidadv CO 81082
(Certified Mail)

ek

386

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

March 12, 1991

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

v.

CIVIL PENALTY PROCEEDING
Docket No. CENT 91-26
A. C. No. 41-01192-03531
Big Brown strip

TEXAS UTILITIES MINING
COMPANY,
Respondent
DECISION

In response to the February 11, 1991, show cause order, the
parties agreed that subject case should be stayed pending a
decision by the undersigned in Drummond Co. Inc., Docket No.
SE 90-126.
However, before a stay order could be issued herein, a
decision was rendered on March 6, 1991, in Drummond granting the
operator's motion to remand the penalty to the Secretary.
The
decision in Drummond 1s dispositive of this case, which involves
one violation where the excessive history criteria in Program
Policy Letter No. P90-III-4 was used to calculate the amount of the
penalty.
In light of the foregoing; it is ORDERED that the operator 1 s
motion for remand be GRANTED.

It is further ORDERED that the Secretary recalculate her
proposed penalty without reference to Program Policy Letter
No. P90-III-4.

~\2Ju~

Paul Merlin
Chief Administrative Law Judge

387

Distribution:
Brian L. Pudenz, Esq., Office of the Solicitor, u. s. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202 (Certified
Mail)
Douglas White, Esq., Counsel, Trial Litigation, Office of the
Solicitor, U. S. Department of Labor, Room 414, 4015 Wilson
Boulevard, Arlington, VA 22203
(Hand Delivered)
Christopher R. Miltenberger, Esq., Worsham, Forsythe, Sampels &
Wooldridge, Thirty Two Hundred, 2001 Bryan Tower, Dallas, TX 75201
(Certified Mail)

/gl

388

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

22041

MAR 12 1991
DISCRIMINATION PROCEEDING

DAVID THOMAS,
Complainant

Docket No. KENT 89-13-D

v.
BARB CD 88-16
AMPAK MINING, INC.,
GEARY BURNS AND
PEGGY A. KRETZER,
Respondents

Mine No. 1

GEORGE ISAACS,

DISCRIMINATION PROCEEDING
Complainant
Docket No. KENT 89-14-D

v.

BARB CD 88-34

AMPAK MINING, INC.,
GEARY BURNS AND
PEGGY A. KRETZER,
Respondents

Mine No. 1

DECISION AND ORDER AWARDING COSTS AND DAMAGES

Before:

Judge Melick

Pursuant to the Default Decision and Order issued
February 7, 1991, and the unopposed Supplemental Statement of
Attorney Fees and Expenses filed herein, it is hereby ORDERED
that within 30 days of the date of this decision Respondents'
Geary Burns and Peggy A. Kretzer (who are jointly and severally
liable) pay to Tony Oppegard, the attorney for complainants'
David Thomas and George Isaacs, attorney fees and expenses of
$7,802.39, in addition to previously awarded damages and costs
(ordered to be paid by Arnpak Mining, Inc. on March 9, 1990) plus
interest in accordance with the commission's decusion in UMWA v.
Clinchfield Coal Co., 10 FMSHRC 1493 (1988). Th"s decision-represents the final disposition/Jthese procee ings ~efo. re this
1
judge.
'

l

;vLv--~ 0,_~/ ' -.

Gary elick
,
Admin"strative\ aw Judge
(703) 756-6261 \)

389

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucky, Inc., 630 Maxwelton Court, Lexington, KY 40508
(Certified Mail)
Graham Martin, Esq., Main Street, United Federal Building,
Hindman, KY 41822 (Certified Mail)
Mr. Geary Burns, P.O. Box 1183, Paintsville, KY
Mail)
Ms. Peggy Kretzer, HC 83, Box 172, River, KY
Mail)

390

41240 (Certified

41254

(Certified

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

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

MAR J 3 1991

KENNETH L. CHANDLER,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. LAKE 90-107-D
MSHA Case No. VINC CD 90-04

ZEIGLER COAL COMPANY,
Respondent

Zeigler No. 11 Mine
DECISION

Appearances:

Mr. Kenneth,L. Chandler, Tilden, Illinois, prose,
f9r the Complainant;
Timothy M. Biddle, Esq., Claire S. Brier, Esq.,
CROWELL & MORING, Washington, D.C., for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the complainant, Kenneth L. Chandler, against the respondent
Zeigler Coal Company, pursuant to section lOS(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c).
The
complainant filed his initial complaint with the Mine Safety and
Health Administration (MSHA), and after completion of an investi~
gation of the complaint, MSHA advised the complainant by letter
dated June 6 1990, that the information received during the
investigation did not establish any violation of section 105(c)
of the Act. Thereafter, the complainant filed a complaint with
the Commissionn
A hearing was held in st. Louis, Missouri, and the parties
were afforded an opportunity to file posthearing briefs.
The
respondent filed a brief, but the complainant did not.
However,
the complainant did
an undated letter received on January 6,
1991, and a second letter received February 4, 1991, in which he
explains the circumstances of the incident which precipitated his
complaint and cites an arbitrator's decision and a decision by a
State unemployment referee with respect to two cases which he
believes are relevant to his case.
I have considered all of the

391

posthearing arguments and submissions made by the parties,
including their oral arguments made on the record in the course
of the hearing, in my adjudication of this matter.
The complainant, who is still employed by the respondent,
alleges that he was suspended for 5 days without pay on
October 18, 1989, after requesting mine management to provide him
with dry clothing after riding a man cage into the mine on
October 16, 1989, during an unusual and heavy rainfall which
resulted in his becoming "soaking wet and cold." The complainant
further alleges that his suspension was "in retaliation for my
health and safety efforts for myself and other employees." He
requests back pay for the 5-day suspension period, and the
removal of all references of the suspension action from his
personnel records.
The respondent denies that it has discriminated against the
complainant, and maintains that the complainant did not engage in
protected activity under section 105(c) of the Act because his
refusal to work in wet clothing was unreasonable and not made in
good faith.
The respondent asserts that it disciplined the
complainant for legi~imate business reasons and that he was
suspended for insubordination for failing to follow an order to
go to work on October 16, 1989, and "for acting in concert when
leaving the mine in a group exit" with other miners on his
working unit prior to the end of the normal work shift that day.
Issues
The issues in this case include the following:
(1)
whether
the complainant was engaged in protected activity when he
requested dry clothing on October 16, 1989; (2) whether his
leaving the mine prior to the end of his normal work shift
constituted a reasonable and protected "work refusalvv for health
or safety reasons; (3) whether the complainant communicated any
health and safety concerns to mine management prior to his
leaving the mine~ and (4) whether the 5-day suspension disciplinary action by the respondent was a bona fide and legitimate
business reason made in good faith, or whether it was carried out
to retaliate against the complainant for his engaging in any
protected health or safety activity. Additional issues raised by
the parties are identified and disposed of in the course of this
decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301 et seq.
2. Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 815(c) (1), (2) and
( 3) •

39 2

3.

Commission Rules, 29 C.F.R. § 2700.1,

Stipulations
The parties stipulated to the following (exhibit ALJ-1):
1. Zeigler Coal Company is subject to the Federal
Mine Safety and Health Act of 1977 ("the Act").
2. The Federal Mine Safety and Health Review
Commission ("the Commission") has jurisdiction over the
parties and subject matter of this case under sections
105(c) and 113 of the Act, 30 u.s.c. §§ 815(c) and 823.
3. Respondent Zeigler Coal Company is the operator of the Zeigler No. 11 Mine.
4. At all times relevant to this case, Complainant Kenneth L. Chandler worked at the Zeigler No. 11
Mine as a miner as defined in section 3(g) of the Act,
30 u.s.c. § 802(g).
5. Mr. Chandler reported to work for the second
shift at the Zeigler No. 11 Mine on October 16, 1989.
6. On October 16, 1989, there was a rainstorm at
the beginning of the second shift and all of the miners
working that shift got wet while on their way to the
mine.
7. Mr. Chandler and the seven other miners working on his crew on October 16, 1989, left the mine
property before the end of the second shift.
80
None of the other miners working the second
ft on October 16, 1989, left the mine property
before the end of the shift.

9. On October 18, 1989, Mr. Chandler and the
seven other miners who left the mine before the end of
the second shift on October 16, 1989, were disciplined
for insubordination and for leaving the mine prior to
the end of their shift. Mr. Chandler and five of the
miners were suspended for 5 days, one of the miners was
discharged, and another was suspended for 2 days after
admitting insubordination.
10. Mr. Chandler filed a complaint with the
United States Department of Labor, Mine Safety and
Health Administration ( 11 MSHA 11 ) on November 17, 1989.

39 3

11. MSHA subsequently notified Mr. Chandler that
its investigation of his November 17, 1989, complaint
did not reveal any violation of section 105(c) of the
Act.
12. On July 6, 1990, Mr. Chandler filed a complaint with the Commission against Zeigler Coal
Company.
13. This complaint was properly served on Zeigler
Coal Company on July 25, 1990.
Complainant's Testimony and Evidence
Kenneth L. Chandler, the complainant, testified that on
October 16, 1989, he was working as a face man on the second
shift (4:00 p.m. to midnite). He stated that "it was raining
cats and dogs, really pouring down," and that he ran approximately 100 yards from the surface dressing area to reach the
shaft cage to go underground. He stated that it took approximately 4 to 7 minute§ to reach the underground area on the 11 open
cage" which had no top and large overhead holes. The temperature
was approximately 42 degrees, and after an 18-minute ride on the
man trip, he reached the working section "sopping wet and cold. 11
Mr. Chandler stated that during the man-trip ride he and the
other miners asked face foreman Lawrence Rainey whether they
would get dry clothing, and Mr. Rainey left to "make the faces."
Mr. Chandler then proceeded to the transformer area and took his
coat off and was putting it on the transformer when Mr. Rainey
returned and informed him that he could not allow him to stand by
the transformer "because they'll fire me." Mr. Chandler asked
Mr. Rainey again about getting coveralls, and Mr. Rainey left to
make a phone call.
Mr. Chandler stated that Mr. Rainey returned and that "the
words I caught he said was go to work or go home, we are not
go
to give you no coveralls" (Tr. 18). Mr. Chandler stated
that he did not know whether Mr. Rainey called mine manager Shan
Thomasv or assistant superintendent William Patterson, but
understood or •1 speculated 11 that he called Mr. Patterson.
Mr. Chandler and seven other miners then went to the man
to
leave the area.
Mr. Chandler stated that after arriving on the surface, he
and the other miners went to the "tool crib shack" and
to
Ms. Carla Lehr who was on duty. She told them she would return
in 15 or 20 minutes and left, but did not return. Mr. Chandler
then went to the mine foreman's office, and after finding no one
, he returned to the locker room, took a shower, and went
home. On his way out, he looked into the foreman's off
, and
saw mine superintendent Mike Smart there (Tr. 22).

394

Mr. Chandler stated that he returned to the mine the next
day, October 17, put on his work clothes, and proceeded to the
man cage to go to work, but was met by mine manager Shan Thomas
who told him "to stand aside." Mr. Thomas informed Mr. Chandler
and the other seven miners who left the mine the previous day,
that their "work assignment was in the office." They were then
taken to a room at the mine office, and Mr. Chandler and each
miner were interviewed privately and individually (Tr. 23-25).
Mr. Chandler confirmed that Mr. Smart, Mr. Patterson,
Mr. Rainey, and a labor relations representative (Nick) were all
present as management representatives during his interview, and
that two union representatives, or committeeman, were also
present (Tr. 27). Mr. Chandler believed that he was at the mine
office for 5-1/2 hours, and after he was interviewed, he was told
to go home, and he left the mine. He confirmed that the other
miners on his work shift "walked out when they took us in the
off ice" and there was a "wildcat strike 11 because he and the other
seven miners were not allowed to go to work. Mr. Chandler stated
that the strike began when Mr. Thomas "stopped us from getting on
the cage," and that the second shift did not work on October 17
(Tr. 30-31).
Mr. Chandler stated that he next returned to the mine on
October 18, and was kept in the locker room.
several union
representatives were present, and they informed him that mine
management was considering discharging him.
The union president
produced a "letter," which he refused to sign. He was then given
another letter informing him that the respondent was suspending
him for 5 days (Tr. 33-34; exhibit C-1).
Mr. Chandler believed that the mine was idle for approximately 3 days "over this--trying to make people work with sloppy
clothing and stuff like that, you, know, safety,
but that the
miners returned to work under a court injunction (Tre 38)o
Mr. Chandler confirmed that he completed his 5-day suspension and was not paid his hourly rate of $14 or $15 for these
days. He further confirmed that he filed a grievance for loss of
pay on October 16 and 17, and received pay for 4-1/2 hours,
which settled and ended part of the grievance, but d
not settle
that part 11 on wet, sloppy clothing; whether a company could make
me work in wet sloppy clothing for 8 hours 11 (Tr. 41).
Mr. Chandler stated that he was given an unexcused absence
for October 16, which is still on his record, but that nneither
side said nothing 11 about the 11 wet clothes issue 11 (Tr. 43).
He
confirmed that in 1983 the respondent supplied him with boots and
coveralls when he was "sopping wet, 11 that he came out of the mine
on another occasion to get some coveralls when he was saturated

395

with oil when a hydraulic line broke, and that on September 12,
1989, another miner was saturated with oil and came out of the
mine, showered, and returned to work with no lost time (Tr. 45).
Mr. Chandler stated that pursuant to a union/management
agreement, boots or "waders" are made available to miners, and
that the respondent furnishes rain gear when bolting is done in
wet areas.
He confirmed that he keeps a supply of personal
clothes at the mine, that he is paid an annual clothing allowance
of $190 by the respondent, but does not keep an extra set of work
clothes at the mine (Tr. 46-47).
Mr. Chandler stated that there were no raincoats to wear on
October 16, before he went to the cage, and in order to obtain a
raincoat he would have "to go outside and back around to the
crib," and he did not know whether he would have been permitted
to do so. He confirmed that since the incident in question, the
day shift has been provided with plastic trash bags for protection against the rain, but he did not consider this to be "raingear" (Tr. 49). He stated t~at the dry clothes issue has not
been bargained by the union, and that the October 16, rainfall
was the first time it has rained so hard (Tr. 50).
On cross-examination, Mr. Chandler confirmed that he could
have remained in the dressing area at the start of his shift
rather than going to the cage, that he did not ask the foreman to
hold the cage, and made no attempt to ask anyone for rain gear
before going to the cage (Tr. 53). He stated that the distance
to the cage "might be 100 feet" rather than 100 yards, and that
he could have gone to the supply room by walking through an
inside off ice rather than walking outside if he had obtained
permission to do so. He confirmed that he did not ask for
ion (Tr. 55). He confirmed that there are no restrictions
as to how he spends his clothing allowance, that he could have
a spare set of clothing to keep at the mine, and that
he had an extra coat and extra pair of shoes at the mine on
October 16 (Tr. 56).

Mr. Chandler confirmed that the union advised him that it
would not pursue the dry clothing
part of his grievance any
further after the pay issue concerning his pay for October 16 and
17, was resolved, and that he disagreed with the union's decision
(Tr. 56-57) .
Mr. Chandler confirmed that 11 one of the main issues" with
respect to the wildcat strike was the termination of one miner
(Burnett), a member of his crew who left the mine on October 16
(Tr. 60).
He confirmed that eight miners and a foreman were
assigned to his work shift unit on October 16, and there are two
additional units and a labor crew, or a total of 38 to 40 men on
the shift. He confirmed that everyone on the shift got wet, and

396

that everyone stayed and worked on that shift except for the
seven miners on his unit who left the mine (Tr. 62).
Mr. Chandler stated that boots and rain gear are available
at the mine, but that he has not been "sopping wet" in the past,
and would only want a full change of clothes when he is "sopping
wet" (Tr. 64).
He confirmed that he left the mine at 6:30 p.m.,
on October 16, 5-1/2 hours before his normal work shift ended.
When asked whether he had permission to leave, he stated as
follows at (Tr. 65):
Q.
So if it was 6:30, then you left the mine five and
a half hours then before the shift ended?
A.

Right.

Q. And you didn't have permission to leave the mine
from anybody on the property, is that correct?
A.
I'd say so, when the ,.~ine manager come there and
asked me what m¥;trouble was, yeah.

Q. And the mine manager gave you permission to go
home?
A.
He didn't tell me I couldn't go or I could go.
He
never said nothing.
All he said was that I'm sorry
you're wet.

Q. And you construed that as permission that you could
go home?

Mr. Chandler identified exhibits R-1 and R-l(a), as the
respondentis rules concerning nearly outs,n and confirmed that
they were in effect on October 16, 1989 (Tr. 67).
He conceded
that he left work early that day, but stated that he notified the
mine manager that he was leaving the mine.
He explained that he
notified foreman Rainey that he wanted to leave and go home, and
that Mr. Rainey ngave me the ultimatum to go to work or go home,
so he give me a choice" (Tr. 70).
However, Mr. Chandler further
stated that he did not tell mine manager Shan Thomas that he was
going home, but did tell him that "I'm wet, sloppy clothing, I'm
froze, I'm going to try and get some dry clothing" and that he
was ngoing to the top to see if I can get some dry clothing." He
then conceded that he did not say anything to Mr. Thomas about
going home (Tr. 69-71).
Mr. Chandler confirmed that he saw mine superintendent Smart
as he left the mine office to go home on October 16, and believed
that Mr. Smart saw him.
He confirmed that he did not speak to

396

Mr. Smart or say anything about going home. Mr. Chandler confirmed that he is a licensed plumber, performs plumbing work on
his own, and has worked at that job when he was wet (Tr. 74).
Mr. Chandler stated that except for Mr. Burnett who was
terminated, and Mr. Smith, who signed a letter, all of the other
miners who left the mine over the "wet clothes" issue were
suspended by the respondent with a loss of pay (Tr. 75-76). He
confirmed that he was interviewed and questioned on October 17
about why he had left the mine on October 16, and that union and
management personnel were present during the interview. He
confirmed that he discussed the wet clothing issue and that he
came out of the mine because he was wet and cold (Tr. 77-79).
In response to further questions, Mr. Chandler confirmed
that when Mr. Thomas spoke to the miners leaving on the man trip
on October 16, he told Mr. Thomas that he was wet and cold and
wanted some dry clothing (Tr. 82). He confirmed that Mr. Thomas
said nothing about working or going home, and that he (Chandler)
heard Mr. Rainey make the statement "go to work or go home."
Mr. Chandler stated that he heard Mr. Rainey make this statement
after he had made a~phone call, and he believed that "someone
else told him to say this," but he did not know who Mr. Rainey
may have called (Tr. 82-85).
Mr. Chandler stated that prior to getting on the cage on
October 16, to go underground, "no one said don't get on it or
get on it, 11 but that he has been told that when the signal is
given "when they run two cages," he is supposed to get on it and
go to work (Tr. 86). He was told that miners on another unit who
also rode the cage and were wet and cold were allowed to dry
their clothes underground on the transformers by their foreman
Tro 88)
He did not know why he failed to say anything to the
foreman mine manager, or superintendent before riding the cage
aown and
exposed to the rain (Tr. 89-90) .
o

Mr. Chandler confirmed that at the time the miners on his
unit decided to leave the mine on October 16, he was not aware
that other
on another unit were allowed to dry their
clothes on the transforners, and that he learned about this the
next day or so when it was brought out at a union meeting (Tr.
91)
He further confirmed that the union would not take the dry
clothing issue further to formal arbitration, and he did not know
the reason for not doing so and was given no reason by the union
(Tr o

9 2) •

Mr. Chandler stated that on October 16, after reaching the
bench and transformer area, he and his crew were standing around,
and had placed their jackets on the transformer to dry. Several
of the miners may have been drinking coffee and eating sandwiches
and no one had started to work. Mr. Rainey came to the area, and
Mr. Chandler stated that "I just hollered and asked him -- I said

39 8

are we going to get any wet (sic) clothing? And, you know, are
coveralls down here, or raingear or something to put on? And
somebody else asked him something; I don't know who it was" (Tr.
95-100).
Mr. Chandler stated that working in wet clothing would
present a safety risk because "handling the electric cable with
wet, sloppy clothing you can get electrocuted," and that the wind
at the face would be "coming to you which is about 60,000 cubic
feet per minute, you're working in air, you get chilled.
You can
get pneumonia, and you get sick, you're going to miss work" (Tr.
101) . He confirmed that he had never previously worked under
such conditions, and although he has gotten wet, it was "not
sloppy wet like that. 11 He further confirmed that he said nothing
to the mine manager or mine superintendent about the hazards
which he testified to, and said "I'm sopping wet and just wanted
dry clothes.
* * * you know, I'm chilled. That's it. That's
what I kept asking" (Tr. 102).

In response to a questiori._as to whether he ever asked the
mine manager or superintendent for permission to go and change
clothes, Mr. Chandler stated as follows (Tr. 102).
A. We said something to him about going up and getting
dry clothing, you know. We'll see if we can get dry
clothing on top. That's why we made the effort to go
to Carla before I told him.
I don't know if they would
have let me went back down or not, but if I would have
got dry clothing -Q. What dry clothing would this Carla have given you?
What would the mine have had there?
f..L

Coveralls.

Mr. Chandler confirmed that the minimum amount of air
permitted at the face is 3,000 cubic feet, and that 60,000 would
be in the main intake. He stated the cable was all high voltage
cable which is insulated, and that he will not touch a cable with
his bare hands if he is 11 real wet,H and will use gloves, but that
he will touch
if he is sua little wetn (Tr. 109). He will not
touch a cable with wet boots or if he were standing in water.
William I. Patterson, was called as an adverse witness by
the complainant, and he confirmed that he is presently the mine
superintendent, and was serving as the general mine manager in
October, 1989. He stated that if a miner leaves work early with
the permission of management, it is an excused absence. However,
if a miner tells the shift mine manager that he needs to leave
because he is sick or for family business, the manager has no
authority to prevent him from leaving, but the next day, management will determine the reasons for the absence and will deal

399

with it.
If the absence is legitimate, such as a doctor's slip,
the leave will be considered to be an excused absence, and not an
"early out. 11 An "early out" is charged when there is no proof of
sickness or someone leaves with no prior authorization, and the
miner would then be subject to a written warning and "progressive
steps from there" (Tr. 114-120).
Mr. Patterson confirmed that since Mr. Chandler had no proof
of any sickness or injury, or prior authorization to leave the
mine pursuant to the respondent's early out policy, he was
charged with an unexcused absence on October 16, when he left the
mine (Tr. 120-121). Mr. Patterson did not believe that working
wet was hazardous, and he confirmed that one can get electrocuted
when dry or wet, and that it would possibly be hazardous for
someone to stick their hand in an energized power box, but that
"our people are all well trained enough not to encounter those
situations" (Tr. 121-122) .
Mr. Patterson confirmed that he handled the grievances, and
he confirmed that Mr. Chandlt?.r filed a grievance for 4-1/2 hours
of pay for the day }le was kept at the mine on October 17, and
that the grievance was settled and he was paid for these hours.
Mr. Chandler was charged with an unexcused absence on October 16,
was not paid for that day, and he did not grieve this action (Tr.
126-127).
Mr. Patterson confirmed that Mr. Rainey telephoned him on
October 16, and informed him that "he had an employee who wanted
some dry clothing." However, Mr. Rainey interrupted the conversation and said "forget that, here comes the rest of the crew and
they all want dry clothing also" (Tr. 128). Mr. Patterson denied
that he told Mr. Rainey to instruct the miners to go to work or
go home, and he stated that "our management people are trained
very well not to make those statements, IQ and he assumed that
Mr. Rainey "probably did not state it in that fashion. 91
Mr. Patterson stated that there was no way he could have supplied
everyone on the second shift with clothing, and that he
instructed Mr. Rainey to tell his men to go to work (Tr. 129,
131)
0

Mr. Patterson stated that supervisors who have made statements 11 go to work or go home" have "open themselves up to enable
people to go home.
* * * That is why our people are trained not
to ever make those comments" (Tr. 132). Mr. Patterson denied
that he ever suspended Mr. Rainey, but confirmed that he suspended another foreman when he found that miners on his crew were
losing from 10 to 25 minutes from work by drinking coffee and
eating before starting any work (Tr. 133-134).
Mr. Patterson stated that at the time Mr. Chandler was
questioned on October 17, he (Chandler) contended that Mr. Rainey
had said "go to work or go home," but Mr. Rainey "flatly denied

400

it" in the presence of Mr. Chandler (Tr. 142). Mr. Patterson
denied that Mr. Rainey had ever been suspended for lying to a
superintendent, but confirmed that he had been suspended for
other reasons (Tr. 143).
Mr. Patterson stated that Mr. Chandler does not have a bad
work record and that Mr. Wisdom is a fine employee. He stated
that he is responsible for running the mine, and that it is not
out of the ordinary for people to work wet (Tr. 147). He stated
that the respondent is not responsible for furnishing dry clothing, but that there have been instances when a miner was allowed
to change clothing if he were saturated with oil or chemicals.
He confirmed that he did not know how hard it was raining on
October 16, and was not paying particular attention to the rain
(Tr. 150-152).
Mr. Patterson stated that the union could have taken the
issue of dry clothing to arbitration before an arbitrator but
chose not to take it beyond the step three suspensions issue when
the matter was withdrawn by the union (Tr. 155). Mr. Chandler
confirmed that this was the case, and he stated "That's why I'm
here.
Because the company nor the union has ever given me an
answer on wet, sloppy clothing'' (Tr. 155) . Mr. Patterson confirmed that Mr. Chandler did not ask him for rain gear or to
delay the cage on October 16 (Tr. 168).
William M. Simon, shuttle car operator, confirmed that he
worked on the same crew with Mr. Chandler on October 16, 1989,
and was also suspended for 5 days as a result of the same incident (Tr. 171). He stated that the respondent has furnished him
with boots "when we hit water down below" and with raincoats
while washing off equipment. He confirmed that he filed for
unemployment because of his suspension, and that the State of
Illinoisr Department of Employment Security found "that there was
no misconduct in our part for wanting to get dry clothes, 11 and
although he was not paid unemployment, he was given 11 credit for a
waiting week 19 of unemployment and was not disqualified from
receiving such credit (Tr. 172-174, exhibit C-2).
Mro Simon stated that he has worked in the past while wet,
but that the rainfall on October 16, was unusual and that he was
~•soaked all the way to the skin. 11
He confirmed that he was paid
for 5 hours for the time spent at the mine during the interviews
of October 17, but that he was charged with an unexcused absence
on October 16, and that he was suspended for insubordination, and
not for unexcused leave on that day (Tr. 189-190).
Mr. Simon stated that when Mr. Rainey came to the transformer area on October 16, "everybody said well, we want--we'd
like some dry clothes." Mr. Rainey left to make a phone call,
and when he returned "he said that Bill Patterson wasn't going to
send any dry clothes to you, to go work or go home" (Tr. 190).

401

Mr. Simon stated that given that choice, he decided to go home
and not work in wet clothes because he had pneumonia twice during
the prior year. He confirmed that he said nothing to
Mr. Patterson or to Mr. Rainey about his pneumonia while he was
underground (Tr. 191).
Mr. Simon stated that after speaking with Shan Thomas, the
mine manager, at the man trip, and informing him that he wanted
dry clothes, he and the other miners went to the surface and to
Mr. Patterson's and Mr. Smart's offices, but they were not there.
He then went to the supply room and asked Carla Lehr if she had
dry coveralls and she informed him that she did, but did not know
how many. She then left, and after waiting for 10 to 15 minutes
for her to return, he took a shower and went home (Tr. 193).
Mr. Simon stated that he would have returned to work in his
street clothes but could not find anyone to allow him to do this,
and he doubted that he would have been permitted to do so (Tr.
192-195). He confirmed that he saw Mr. Patterson in an office on
his way out of the mine, but they did not speak to each other
(Tr. 196).
On cross-examination, Mr. Simon confirmed that he was in the
supply room where raingear is kept before riding the cage underground, and that he did not try to get a foreman to sign it out
to him because no foreman was there and he had no time because he
had to take the first cage trip. He also confirmed that he had
an opportunity to speak with Mr. Patterson before leaving the
mine, but did not do so, and that Mr. Patterson made no attempt
to speak with him (Tr. 199-200).
In response to further question, Mr. Simon stated that he
may have been present when Mr. Rainey spoke to Mr. Chandler after
telephoning Mr. Patterson. It was his understanding that
Mr, Rainev informed the miners that it was Mr" Patterson who told
Mr, Rainey to inform the miners to either go to work or go home.
He confirmed that he said nothing to Mr. Rainey about his prior
pneumonia, and did not hear Mr. Chandler say anything to
Mr. Rainey about his working without raingear. He also did not
hear Mr. Chandler make any safety complaints to Mr. Rainey (Tr.
201-203). Mr. simon stated that he raised the question of his
prior pneumonia with management for the first time during his
interview on October 17 (Tr. 204}. He confirmed that he and the
other miners who went home and were suspended filed discrimination complaints with MSHA, "but we lost and they didn 1 t agree
with us 11 (Tr. 205). He stated that he took no further appeal
because he did not file it in time (Tr. 205). He confirmed that
he knew it was raining before he left the supply room and went to
the cage, and that he would probably get wet in the rain. His
fear of pneumonia did not prevent him from going out in the rain,
because it was 11 not as bad as my fear of getting fired for not
going out there" (Tr. 207).

402

Lowell D. Wisdom, shuttle car operator, testified that in
October, 1989, he was working as a roof bolter, and that he said
nothing to Mr. Patterson or Mr. Smart about the rain on that day,
and they said nothing to him. . He stated that he made several
attempts to locate them in the off ice when he first came to the
surface and before showering and going home, but could not find
them. He also indicated that he was reluctant to speak to
Mr. Smart "because of his practice of punishment and writing
people up and everything," but that he would not now hesitate to
ask Mr. Patterson if it was necessary for the men to go down the
cage in the rain because the "circumstances has changed tremendously since Mr. Patterson has beqome our superintendent" (Tr.
209-212). He stated that several years ago when he was wet he
was allowed to go to the surface to put on overalls and return to
work, and that the company has provided him with raingear and
boots when he requested them (Tr. 209, 213).
On cross-examination, Mr. Wisdom confirmed that the purpose
of the October 17, meeting with management was to explain what
had happened the previous day. He identified a copy of his
suspension letter, and confirmed that the letter says nothing
about wet clothes. He-also confirmed that during the time in
question there was tension at the mine over the manner in which
Mr. smart was managing the mine, but he did not believe that the
11
Pittson Strike" which was in progress at that time had anything
to do with the situation at the mine (Tr. 214-219).
In response to further questions, Mr. Wisdom stated that he
has never engaged in any wildcat strike, and that if he had
received "good, dry clothing" on October 16, he would have gone
to work (Tr. 219). He stated that his opinion of Mr. Patterson
has not changed since October, 1989, but that Mr. Patterson was
not in charge of the mine as he is at the present time (Tr. 220).
He confirmed that he did not hear Mr. Rainey state that
Mr. Patterson instructed him to tell the men to go to work or go
home. Mr. Wisdom also confirmed that he never heard Mr. Chandle'r
or Mr. Simon raise any safety questions with Mr. Rainey or
indicate that working in wet clothes put them at risk, and that
he made no such complaint (Tr. 222).
Mr. Wisdom stated that he had no idea why his union did not
pursue the "dry clothes issue 11 further, and he produced a newspaper article of November 1, 1989, concerning the wildcat strike
(exhibit C-3, Tr. 225). He also confirmed that the union did not
pursue his suspension further, and that the union district
representative told him that he did not want to take the case to
an arbitrator "because the arbitrator might rule against us and
fire us 11 (Tr. 227). Mr. Simon stated that it was his understanding that the "insubordination" which resulted in his suspension
was "for refusing to go to work, I guess. And it says for
leaving the mine" (Tr. 229). He further explained that he was
not suspended for taking an unexcused absence, but that he was

403

charged with an unexcused absence for October 16, and was not
paid for that day. He failed to understand how he could subsequently be suspended for not taking orders on the day that he
received no pay. He conceded that assuming he were told by a
foreman to go to work, and he instead went home, this would be
insubordination, but that "if they didn't pay me, I don't feel
like they had any business giving me any orders." He further
conceded that he did not work on October 16, but expected to be
paid for the 1 hour he was underground before going home, and
that "I feel like they would have been more right in issuing me a
letter for insubordination had they been paying me" (Tr.
230-231).
Respondent's Testimony and Evidence
William I. Patterson, mine superintendent, testified that he
has been employed by the resp6ndent for 17 years and that on
October 16, 1989, he was serving as the general mine manager
responsible for the underground operation of the mine. He
confirmed that the UMWA rep:i;~sents the miners, and that pursuant
to contract, the mine has safety committees for dealing with
employee safety complaints. A safety committeeman is available
for each of the three working shifts at the mine, and he confirmed that he has had dealings with the safety committee numerous times. He confirmed that there was an ongoing strike at the
Pittson Coal Company in October, 1989, and that a few of the
respondent's miners were given permission, through their union
district office, to participate in that strike, and to attend a
union "solidarity" rally held on October 15. He stated that as a
result of the strike, he "could see a change with some people" at
the mine, but not all of them (Tr. 238-243).

Mro Patterson stated that during the day shift on
October 16! while he was underground, he 11 noticed a lot of
dissension among some of the employees" on that shift, and
informed superintendent Smart that 11 things just don't feel
right. os He was not sure whether this had anything to do with the
events of October 16, on the second shift (Tr. 244). He confirmed that he was in the "lamp room" at the beginning of the
second shift, knew it was raining, but not how hard, and that he
did not see the men get on the cage at the start of the shift.
He stated that no one asked him to delay the cage from going
underground, and he did not speak with Mr. Chandler at that time,
and no one asked him for any raingear (Tr. 246).
Mr. Patterson confirmed that he received a telephone call
from unit 3 section foreman Lawrence Rainey from an underground
phone on October 16, and Mr. Rainey told him that one of the
miners, Dale Burnett, wanted dry clothing and that he had clothes
in his basket and wanted dry clothes. Before he could finish the
conversation, Mr. Rainey said "forget that--the whole unit wants
clothes now" (Tr. 248-249). At that point in time, Mr. Patterson

404

stated that he realized that there were three working units and
some "outby people" underground, comprised of approximately 40 to
45 miners, and although there may have been 8 to 12 pair of
winter coveralls which are usually available for people working
outside in cold weather, he knew that he could not supply all of
the miners and told Mr. Rainey that he did not have clothes on
the surface and to order his people to go to work (Tr. 250).
Mr. Patterson stated that he was positive that he did not
tell Mr. Rainey to order the men to go to work or go home because
"through years of training, our supervisors have been trained
that you do not give people options, that you do not say those
things" (Tr. 251). Mr. Patterson stated that during the
October 17, interviews with the miners who went home the previous
day, they were each interviewed separately, and only two of them
indicated that Mr. Rainey had said "go to work or go home," and
the rest of the individuals said they did not hear Mr. Rainey
make such a statement. Those individuals stated that Mr. Rainey
informed them that "it was my orders for them to go to work," and
Mr. Rainey assured them that he did not make such a statement
(Tr. 2 51-2 5 3 } .
Mr. Patterson stated that the respondent does not furnish
dry clothes to miners, and that they have occasion to get wet in
the ming during their normal work duties in the mine where water
is encountered. He explained that raincoats or boots may be
requested when a miner is working under muddy conditions or is
working in a wet entry, and that there are 8 to 10 rainsuits
available at the mine, and that he would purchase more if needed.
He stated that raincoats are different than dry clothes, and that
it was his understanding that the miners were asking Mr. Rainey
for dry clothes. He stated that "I really don't know what they
was asking for because I think most of the people knew that I
could not supply dry clothing" and that there was possibly four
to five sets of winter overalls available for their use {Tr.
255)

0

Mr. Patterson stated that he has never supplied dry clothing
for anyone who was wet with water, but that persons who have been
wet with oil or a chemical would be able to get a pair of coveralls? but he considered these circumstances to be different from
a situation where someone is wet from water. He confirmed that
the miners are given an unrestricted clothing allowance, and
there are no rules against bringing or storing clothes at the
mine.
He has never had an entire working unit ask for dry
clothes during his employment at the mine {Tr. 257).
Mr. Patterson stated that after speaking with Mr. Rainey on
October 16, he went to the supply room and confirmed that he did
not have enough coveralls. He then informed Carla Lehr, who was
on duty, that some employees had requested dry clothing but that
he did have them available, and that "if anything else becomes of

405

this," she was to summon him from a training class which he and
Mr. Smart were attending at the mine (Tr. 258). Shortly thereafter, he was summoned out of the class by the surface supervisor, and he went to the supply room and Ms. Lehr informed him
that "people had come out of the mine" (Tr. 261) • He heard the
showers running and surmised "that the men had already got into
the shower. 11 He returned to his office and then went to another
office which has a view of the exit from the bath house. He then
observed Mr. Chandler walking by the doorway to the office, and
they did not speak. Mr. Chandler was the first person to leave
the mine, and he was subsequently followed by the other miners
who left together. Mr. Patterson stated that he was writing down
the names of the miners who he recognized, and when asked why he
did not speak to Mr. Chandler when he passed by the office, he
responded as follows (Tr. 263-264, 266-267):
A.
It was my view that these people had taken their
initial stand on what they was going to do.
I have
given the order to go to work.
It's my job to manage
the mine.
I could not give them all dry clothing.
I
could not give the whole- shift dry clothing.
And I had issued an order for them to go to work.
They had decided to leave the mine, leave the property.
And at this point in time, I felt it better to -because I felt maybe there was some dissention, maybe
the next day in the meeting find out the whole story.

*

*

*

*

*

*

*

Q.
had you had any other complaints from any other
units underground about wet clothing?

Q.
After these men left, and I assume -- let me not
assume anything.
Did you try to talk to any of the
other men? You said Mr. Chandler left; did you try to
talk with any of the other men?

Ao

No

Q.

As they left?

A.

No 1 sir 1 I

Q,

Did any of them try to talk to you?

A.

No, sir.

s

did not.

Mr. Patterson stated that after Mr. Chandler and the other
miners on his unit left the mine on October 16, he and Mr. Smart

406

met with Mr. Thomas and Mr. Rainey to find out what had occurred.
Mr. Rainey explained that he encountered the unit underground at
the power center, or transformer, and that some of the men were
having coffee and sandwiches, and were drying their coats by
laying them on the transformer. Mr. Rainey knew that he
(Patterson) had recently suspended a foreman for allowing this to
go on, and informed the miners about this action and told them
they could not stand around and needed to go to work. One
individual, Dale Burnett, asked Mr. Rainey for dry clothes and
stated that "I want dry clothes or a ride out. 11 Mr. Rainey then
made the phone call and informed the men that he (Patterson) had
ordered them to go to work. Rather than going to work, the men
got on the man trip and Mr. Thomas arrived on the scene and spoke
with them and asked Mr. Rainey about what was going on.
Mr. Rainey informed Mr. Thomas that he had instructed the men to
go to work, and after Mr. Thomas reminded them that they had been
given an order to go to work, "they again said we're leaving. We
want dry clothes or whatever, and we're leaving" (Tr. 271). The
men then left on the man trip and came to the surface, but the
rest of the working shifts, except for unit 3, completed their
work shift without incident (Tr. 272).
Mr. Patterson stated that the next day, October 17, he
instructed Mr. Thomas to inform the miners on unit 3 who had left
the mine the previous day to "step aside" and not enter the cage
to go underground and to tell them that "their work assignments
for that day was in the front office. 11 The miners were brought
to an office and a supervisor was posted to wait with them "so
that everyone couldn't start talking and get the same story
together" (Tr. 273). Mr. Patterson stated that the purpose of
the meeting was to investigate why the men had disobeyed a work
order and left the mine the prior day, and that no decision had
been made as to any disciplinary action until all of the facts
were known.
In addition to himself, Mr. Patterson confirmed that
Mrc Smart, at least two union committeemen, and human relations
representative Dennis Niziolkiewicz, were present during the
individual interviews with the miners, and Mr. Rainey was present
nuduring part of it" (Tr. 275). Mr. Chandler was given an opportunity to explain his actions, and apart from the different
accounts by two miners as to what Mr, Rainey purportedly told the
miners underground on October 16, with respect to the statement
i•go to work or go home, n Mr, Patterson agreed that after hearing
the testimony of Mr. Chandler and Mr. Wisdom during the hearing
in this case, his recollection and their recollection of the
events of October 16, were essentially "pretty close" (Tr. 276).
Mr. Patterson stated that he learned that the remainder of
the second shift on October 17, "had wildcatted, 11 either before
or after the meeting and interviews began, and that the men on
the shift 11 had pulled an unauthorized work stoppage" and did not
go underground. The wildcat strike lasted for 6 days, and the
miners were out 6 to 8 days, and it took a court order to get

407

them back to work (Tr. 279). Mr. Patterson confirmed that none
of the men who were interviewed on October 17, mentioned any
concern about any safety hazard because of being wet underground,
but he did recall that Mr. Simon mentioned something about "a
cold or pneumonia'' (Tr. 277).
Mr. Patterson stated that the disciplinary suspension
decision with respect to Mr. Chandler and the other miners who
left the mine on October 16, was a collective decision by himself, Mr. Smart, and Mr. Niziolkiewicz, and he explained the
basis for that decision as follows (Tr. 279):
A. The basis for the decision was the people had acted
irresponsibly and had left their place of work and left
the mine property with no prior authorizations. They
engaged in a group effort of leaving the mine. And
some of the information we gathered through the investigation of some of the things that did happen led to
the final form of discipline.
Mr. Patterson confirmed that Mr. Burnett was discharged
because he played a ~big role" in the incident of October 16, and
"got the bandwagon rolling in some of his comments of give me dry
clothes or a ride out, and carrying on." He also was in trouble
over absenteeism, and under these circumstances, he received a
much stiffer punishment than the suspensions without pay given
Mr. Chandler and the other miners (Tr. 280-281, exhibits R-3
through R-7). Mr. Patterson explained that.the failure by
Mr. Chandler and the other miners who were suspended to follow
his order to go to work on October 16, constituted insubordination. Mr. Patterson also considered the "group exit" from the
mine on that day to be an unauthorized work stoppage or strike by
each of the individuals who left the mine (Tr. 285).
Mr. Patterson confirmed that Mr. Jim Smith was given a 1 or
2-day suspension after accepting the respondent 1 s offer for a
suspension based on his admission of guilt for leaving the mine
on October 16, and he signed a letter to this effect.
Mr. Chandler and the other miners were given the same opportunity
to sign such a letter, but they refused (Tr. 290-296).
Mr. Patterson was present during the suspension grievances filed
by Mr. Chandler and the other miners and he explained that the
grievance concerned the issue of pay for the miners summoned to
the off
on October 17, and the suspensions.
The pay issue was
~esolved by paying the miners for the time spent during the
investigation, and the suspensions were resolved when the union
district off
s withdrew the grievances. Mr. Patterson
confirmed that he became aware of Mr. Chandler's discrimination
complaint when he received a copy in the mail several weeks after
the grievances were concluded (Tr. 296-298).

408

Mr. Patterson confirmed that he had the authority to hold
the man cage on October 16, before Mr. Chandler and his crew went
underground, but that no one requested him to do so, that none of
the miners made any requests for raincoats, nor did they inform
him that they intended to leave the mine. He confirmed that
during his interviews with the miners on October 17, they all
informed him that they had left the mine because they were wet
(Tr. 302-304) .
On cross-examination, Mr. Patterson stated that Mr. Rainey
told him that Mr. Chandler's entire working unit wanted dry
clothing, and that he (Patterson) instructed Mr. Rainey to inform
the men to go to work and that he had no dry clothing (Tr. 307).
He confirmed that Mr. Burnett took his discharge to arbitration
and it was affirmed by the arbitrator (Tr. 313, exhibit C-4).
In
response to questions concerning Mr. Rainey's purported statement
to "go to work or go home," Mr. Patterson responded as follows
(Tr. 330-331):

* * * but if Rainey told me to go to work or go home,
how would you interpret tt? Is that a direct order?
Or would you say-that's two orders?
A. Mr. Chandler, we know through the history of the
coal mining and other industries that the orders to go
to work or go home have been used down the road in
several cases for an individual to sidestep the real
cause of the meaning of that. And I think it's been
upheld before when people make those statements such as
that, it's been upheld that possibly it is an order.
So you yourself knowing this to be a fact, you
know, and I only can deal with what Mr. Rainey told me,
and hopefully he told me the truth and everybody else
the truth that he did not make those statements. He
made the statement directly as I said it.

*

*

*

*

*

*

*

Now, lets assume that that was a factF that Rainey gave
them the alternative. What would your view be then on
whether or not this was insubordination?
THE WITNESS:
If a supervisor gives a man an alternative to go to work or go home, I would probably be
forced with no other stand to take but the man was
following an order to go home.
Mr. Patterson confirmed that Mr. Chandler and the other
miners were not suspended because of unexcused absences, and he
explained the respondent's policy concerning "early outs" and
unexcused absences (Tr. 341-344).

409

Shan Thomas, testified that he has been employed by the
respondent for 21 years, that he is a shift mine manager, and
served as the second shift manager on October 16, 1989. He
stated that he rode the man cage underground on that day with the
work crews, that it was raining hard, and that no one said
anything about waiting for the rain to stop before proceeding
underground. After arriving underground, the men left on the
mantrip to go to their working units and he waited for the second
cage to come down with the rest of the men. He confirmed that
everyone, including himself, was wet from the rain, but that no
one asked for dry clothing at that time (Tr. 348-351).
Mr. Thomas stated that he proceeded to Mr. Chandler's No. 3
unit area and found that the miners were getting into the mantrip
to leave the area.
Section foreman Lawrence Rainey informed him
that the men were leaving and that he had spoken to Mr. Patterson
about the matter and that Mr. Patterson instructed him to
instruct the men to go to work. Mr. Thomas then informed the men
in the mantrip that they were aware of the fact that they were
told to go to work, and he called the No. 5 unit and determined
that "everything was running o.k. 11 and that no other miners left
the mine. Mr. Thomas'confirmed that at no time did Mr. Rainey
inform him that anyone on Mr. Chandler's unit had voiced any
health or safety complaint, and that after the men left,
Mr. Patterson instructed him and Mr. Rainey to come to the
surface so that he could find out why the men had left their
working area (Tr. 352-354).
Mr. Thomas stated that on October 17, 1989, Mr. Patterson
instructed him to inform the miners who left their work area on
the previous day to report to his office. Mr. Thomas then went
to the man cage and instructed Mr. Chandler and the other seven
miners on his crew to stand aside and not get on the man cage,
and he informed them that the
work assignments for that day
9
i ·was
in the office. ~ 0 At that point in time, the rest of the
who were waiting to ride the man cage underground went to
lamp room and put up their lamps. Mr. Thomas stated that he
gave them direct orders to go to work but they ignored him, and
he concluded that their refusal to go to work constituted a
strike or work stoppage. Mr. Thomas confirmed that he did not
icipate in the disciplinary action decision taken against
Mr. Chandler and the other seven miners on his working unit (Tr.
35
357).
On cross-examination, Mr. Thomas confirmed that Mr. Rainey
told him that he had spoken with Mr. Patterson by telephone on
October 16, about the situation underground, and Mr. Thomas
considered Mr. Chandler and the other "group" of men on his unit
to be 11 a good bunch to work with" (Tr. 359).

410

Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d cir.
1981): Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom.
Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no
way motivated by protected activity. If an operator cannot rebut
the prima facie case in this manner it may nevertheless affirmatively defend by proving that,(1) it was also motivated by the
miner's unprotected ~ctivities alone. The operator bears the
burden of proof with regard to the affirmative defense. Haro v.
Magma Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden
of persuasion does not shift from the complainant. Robinette,
supra.
See also Baich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation,
U.S.
, 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan Va
or 709 F.2d 86 (D.C. Cir. 1983);
Sammons v.
., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965) ~
It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,

411

circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982}, the Commission stated as follows:
As we emphasized in Fasula, and recently
re-emphasized in Chacon, the operator must prove that
it would have disciplined the miner anyway for the
unprotected activity alone. Ordinarily, an operator
can attempt to demonstrate this by showing, for example, past discipline consistent with that meted to the
alleged discriminatee, the miner's unsatisfactory past
work record, prior warnings to the miner, or personnel
rules or practices forbidding the conduct in question.
Our function is not to pass on the wisdom or fairness
of such asserted business justifications, but rather
only to determine whether they are credible and, if so,
whether they would have motivated the particular operator as claimed.
Mr. Chandler's Protected Activity
It is clear that Mr. Chandler has a right to make safety
complaints about mine conditions which he believes present a
hazard to his health or well-being, and that under the Act, these
complaints are protected activities which may not be the motivation by mine management for any adverse personnel action against
him; Secretary of Labor ex rel. Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (October 1980), rev'd on other grounds
nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981),
and Secretary of Labor ex rel. Robinette v. United Castle Coal
Co., 3 FMSHRC 803 (April 1981). Safety complaints to mine
management or to a section foreman constitutes protected activity,
v. Interior Board of Mine Operations Appeals, 595 F.2d
746 (D<C. Cir. 1978); Chacon, supra. However, the miner 1 s safety
complaints must be made with reasonable promptness and in good
faith, and be communicated to mine management, MSHA ex rel.
Michael J. Dunmire and James Estle v. Northern Coal Company,
4 FMSHRC 126 (February 1982); Miller v. FMSHRC, 687 F.2d 194,
195-96 (7th Cir. 1982); Sammons v. Mine Services Co., 6 FMSHRC
1391 (June 1984).

412

It is well settled that the refusal by a miner to perform
work is protected under section 105(c) (1) of the Act if it
results from a good faith belief that the work involves safety
hazards, and if the belief is a reasonable one.
Secretary of
Labor/Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2 BNA MSHC
1001 (1980), rev'd on other grounds, sub nom.
Consolidation Coal
Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Bradley v. Belva
Coal Co., 4 FMSHRC 982 (1982).
Secretary of Labor v. Metric
Constructors, Inc., 6 FMSHRC 226 (February 1984), aff'd sub nom.,
Brock v. Metric Constructors, Inc., 3 MSHC 1865 (11th Cir. 1985).
The reason for the refusal to work must be communicated to the
mine operator.
Secretary of Labor/Dunmire and Estle v. Northern
Coal Co., 4 FMSHRC 126 (1982).
In his posthearing submissions in support of his case,
Mr. Chandler asserts that on October 16, 1989, "the fact that I
was wet and cold caused a dispute to arise involving concern of
my health and safety" (letter received January 8, 1991).
Mr. Chandler cites a January 22, 1990, decision by a State of
Illinois unemployment compensation referee in connection with
Mr. Simon's claim for~benefif~ during his 5-day suspension period
(Exhibit C-2).
The ~referee found that Mr. Simon and the other
miners who left the mine "were not unreasonable in refusing to
work in wet clothing in a cold and windy location," and that this
refusal "was not misconduct, as the employer's demands were
unreasonable." The referee concluded that since the employer did
not carry its burden of proof that Mr. Simon's suspension
resulted from "misconduct," he was not disqualified under state
law from receiving unemployment benefit credits.
Mr. Chandler also cites a September 25, 1984, arbitration
award in the case of Peabody Coal Company, Riverking #1 Underground, UMWA Local No. 1670, John Lambert and Sylvester Frisch,
Case No. 81-12-84-1445 (Exhibit ALJ-1). Mr. Chandler stated that
Mr. Lambert and Mr. Frisch decided to leave the mine early after
becoming wet and cold, and that they were charged with an
unexcused 11 early out. 11 Hr. Chandler asserts that "the arbitrator
ruled that they were wet, chilled and concerned about their own
health, and to some degree, safety, and did not act insubordinately in making their decisions. 11 Mr. Chandler suggests that
his case is identical, and that he too was wet and cold on
October 16, 1989, and was concerned about his health and safety
and did not act insubordinately in making his decision to leave
the mine.
In a subsequently filed letter of February 4, 1991,
Mr. Chandler enclosed a copy of a West Virginia Law Review
article titled "Protected Work Refusals Under Section 105(c) (1)
of the Mine Safety and Health Act," 89 W. Va. L. Rev 629 (1987),
co-authored by the respondent's counsel Timothy Biddle, and a
two-page excerpt from an unidentified source, listing several
work refusal decisions, and a discussion of "Four prerequisites

413

for refusal to work." Mr. Chandler asserts in the letter that he
communicated his complaint to his immediate supervisor "Lawrence
Raines," but that when he left the mine on October 16, 1989, "I
did not know what the law was on Safety & Health disputes," and
that he acted in good faith in complaining about a reasonable
health and safety concern.
Congress created a unique statutory scheme under section
105(c) of the Mine Act to preserve a miner's right not to be
discriminated against for engaging in protected activity. The
issues and standards of proofs presented in arbitration proceedings pursuant to collective bargaining agreements, or in state
unemployment compensation proceedings brought before adjudicators
and referees, are not the same as those presented in discrimination cases adjudicated pursuant to the Mine Act. An employee's
rights pursuant to a collective bargaining agreement, or an
applicant's qualification or disqualification from receiving
unemployment compensation benefits, are different from the
statutorily protected safety rights of miners. Accordingly, the
weight to be accorded arbitrator's decisions is within the sound
discretion of the Commission's trial judge, on a case-by-case
basis.
Although the-judge is not bound by such decisions, he may
nonetheless give deference or weight to an arbitrator's "specialized competence" in labor-management matters.
See:
Chadrick
Casebolt v. Falcon Coal Company, Inc., 6 FMSHRC 485, 495
(February 1984); David Hollis v. Consolidation Coal Company,
6 FMSHRC 21, 26-27 (January 1984); Secretary on behalf of Pasula
v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), rev'd on
other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663
F.2d 1211 (3d Cir. 1981).
In the Peabody Coal/Lambert and Frisch arbitration case
cited by Mr. Chandler two miners who were specifically assigned
to wash down some mine face machinery with a high pressure hose
asked management for rainsuits to protect them from getting wet
while doing this work.
The miners were told that rainsuits were
not available, and they were informed that they could use some
brattice cloth as make-shift rain ponchos and could use some
available v1 community boots" to protect their feet.
They declined
to do either, and during the process of washing down the equipment, they got wet and soaked. After advising management that
they were wet and cold, the miners left the mine and they were
assessed with an iiearly-out" and given an unexcused absence.
They were also docked for pay for the period they were absent.
The issue before the Lambert-Frisch arbitrator was whether
or not the brattice make-shift rain gear and community boots
offer by management constituted suitable protective safety
equipment which the company was required to provide pursuant to
Article III, section (m) of the labor/management contract.
Management took the position that the miners got wet because they
failed to use the make-shift equipment available to them, and the

414

union took the position that the miners were put in an improper
situation and that getting wet was a natural incident to being
assigned the job in question.
The Lambert-Frisch arbitrator found that the company had to
do more than provide make-shift equipment, and that pursuant to
the contract provision in question, the company was required to
make available to employees, who are assigned washing duties,
protective rain gear and over boots that adequately protect them
from getting wet.
In assessing a grievance penalty, the arbitrator concluded that the miners who left the mine took some responsibility for their action and knew that their unauthorized
leaving would be charged as an unexcused absence or worse. Under
the circumstances, the arbitrator denied their requests for pay
during the time they were absent from work. However, after
finding that there was never any direct confrontation between the
miners and management about their leaving the mine, and after
commenting that the miners "were wet, chilled, concerned about
their own health, and to some degree, safety, 11 the arbitrator
concluded that they did not act insubordinately in making their
decision to leave, and he ordered that the unexcused "early-out"
be removed from their records.
I find that the facts presented in the aforementioned
arbitration decision cited by Mr. Chandler are distinguishable
from the facts in his instant discrimination case. The case
before the arbitrator concerned a direct challenge and interpretation of a wage agreement provision requiring the mine operator
to furnish protective clothing to miners under certain specific
work assignment conditions, and the arbitrator's finding that the
miners were not insubordinate was based on a lack of any evidence
of any "confrontation" with management.
Even so, the arbitrator
held the miners accountable for leaving work without authorizationo
In Mro Chandler 1 s case, the union did not pursue any 11 dry
clothes" contractual dispute, there is no evidence that
Mr. Chandler 0 s work assignments would have otherwise exposed him
to any wet mine conditions, and his leaving the mine early did
result in a "confrontation" with management. Under the circumstances, I have given little weight to the arbitration decision
in question.
I have given no weight to the state unemployment compensation referee 1 s finding that Mr. Simon was not disqualified from
eligibility for receiving unemployment compensation during his
5-day suspension period. As stated earlier, the issues presented
in state unemployment compensation proceedings are different from
those litigated pursuant to the anti-discrimination provisions of
the Mine Act.
I take note of the fact that the referee's finding
in Mr. Simon's case was based on his conclusion that the mine
operator had not established any "misconduct" on the part of
Mr. Simon. Mr. Chandler's suspension was based on "insubordination," and not "misconduct."

415

At the hearing in this case, Mr. Chandler submitted a copy
of the arbitration decision of November 6, 1989, denying
Mr. Burnett's discharge grievance.
The decision reflects that
foreman Rainey, mine manager Thomas, and mine superintendent
Patterson appeared at the grievance hearing on behalf of the
respondent, and that Mr. Simon, Mr. Wisdom, and three of the
other suspended miners appeared on behalf of Mr. Burnett.
Mr. Chandler's name is not included among those who appeared.
In sustaining Mr. Burnett's discharge, the arbitrator found
that he and "the other crew members were guilty of refusing a
direct order to go to work" by foreman Rainey (Exhibit C-4,
Finding #1, pg. 4).
The arbitrator also found that Mr. Burnett's
telling Mr. Rainey that he wanted dry clothes or a ride out "set
up a confrontation situation with Management in the form of
giving an ultimatum to Management, 11 and that "this occurred after
the issuance of the direct order by Mr. Rainey" (Exhibit C-4,
Finding #2, pg. 4).
The arbitrator also stated as follows at
page 6 of his decision:
We are well aware that mining coal is dangerous, hard
work and conditions are often undesirable.
Getting wet
in a mine or working wet is one of those uncomfortable
situations and we are not unsympathetic to any miner,
Union or Management, under such circumstances.
The
Arbitrator has worked in extremely uncomfortable conditions, both in heavy industry and in military service.
However, most assuredly Management cannot be blamed for
a 50 or 100 year rainstorm (as described by the Union)
which got employees wet before going into the mine.
Mr. Burnett and the rest of the crew acted in defiance
of Management's right to operate its facilities.
The
other employees at the mine worked.

There is no evidence that Mr. Chandler or any of the other
miners on his unit made or communicated any health or safety
complaints to foreman Rainey or to any other member of mine
on October 16, 1989, when they requested dry clothes,
or before leaving the mine,
Although Mr. Chandler stated in his
that he was protecting his "health and safety rights"
when he made his request for dry clothes, that he "got soaked
comp
n while walking from the supply building to the man
and
that
he was "very cold" when he arrived underground, he
1
not contend that these conditions constituted any health or
sa
hazards, nor did he assert that he communicated any such
concerns to his foreman or any other members of mine management.
Indeed, the record establishes that while Mr. Chandler had ample
opportunity to communicate any safety or health concerns to the
section foreman, mine manager, and mine superintendent, he did
not do so.

416

Shuttle car operator Simon, who testified that he had a
previous case of pneumonia, confirmed that he raised no safety
issue with the section foreman or mine superintendent before
leaving the mine on October 16, 1989, and he conceded that he did
not hear Mr. Chandler make any safety complaints. Shuttle car
operator Wisdom confirmed that he made no safety complaints on
October 16, and he confirmed that he never heard Mr. Simon or
Mr. Chandler raise any safety questions with the section foreman
or indicate that working in wet clothes placed them at risk. The
Burnett arbitration decision is totally devoid of any references
to any safety complaints or safety issues raised by the miners in
connection with their mine exit of October 16, 1989.
Mr. Chandler 1 s belated claim that working in wet clothes
posed a hazard to him was raised for the first time at the
hearing, when he testified that his wet clothes presented a
possible electrocution hazard if he were to handle electric cable
"with wet sloppy clothing," and that he could get "chilled, catch
pneumonia, and get sick and miss work" if he were working in the
face area where there was 60 , __coo cubic feet of air per minute
(Tr. 101). Mr. Chandler had not previously mentioned these
safety or health concerns in his prior MSHA or Commission complaints. Further, at the hearing, Mr. Chandler conceded that at
no time did he mention these asserted hazards to foreman Rainey,
mine manager Thomas, or superintendent Patterson, and that he
simply stated that he was "sopping wet and just wanted dry
clothes" (Tr. 102).
Having viewed Mr. Chandler during the course of the hearing,
particularly with respect to the manner in which he handled
himself in presenting his pro se case, he impressed me as a
rather astute individual.
In his posthearing letter received
February 4 1991 1 Mr. Chandler asserts that he communicated his
complaint to foreman Rainey, that he acted in good faith in
complaining about a reasonable health and safety concern, and
that when he left the mine on October 16, 1989, he was ignorant
of the law concerning safety and health disputes. Mr. Chandler 1 s
arguments are rejected.
I believe that Mr. Chandler realized too
late during the hearing that any viable claim of discrimination
pursuant to the Mine Act with respect to a protected work refusal
must be based on a bona-fide and sincere showing of a health or
safety hazard. On the facts here presented, I cannot conclude
that Mr. Chandler has made such a showing, and I find his belated
claims to be less than candid and lacking in credibility.
Even if I were to accept Mr. Chandler's assertions concerning his belated claims of hazards associated with working in wet
clothes, there is absolutely no evidence that he ever communicated these concerns to mine management, even though he had more
than an ample opportunity to do so. It has consistently been
held that a miner has a duty and obligation to communicate any

417

safety complaints to mine management in order to afford management with a reasonable opportunity to address them. See:
Secretary of Labor ex rel. Paul Sedgmer et al. v. Consolidation
Coal Company, 8 FMSHRC 303 (March 1986); Miller v. FMSHRC,
687 F.2d 194 (7th Cir. 1982); Simpson v. Kenta Energy, Inc.,
8 FMSHRC 1034, 1038-40 (July 1986); Dillard Smith v.
.,
9 FMSHRC 992 (June 1987); Sammons v. Mine Services Co., 6 FMSHRC
1391 (June 1984); Charles Conatser v. Red Flame Coal Company,
., 11 FMSHRC 12 (January 1989), review dismissed Per curiam by
agreement of the parties, July 12, 1989, U.S. Court of Appeals
for the District of Columbia Circuit, No. 89-1097.

In Secretary of Labor ex rel. Paul Sedgmer, Jr., et al., v.
Consolidation Coal Company, supra, the Commission affirmed a
Judge's dismissal of a complaint filed by several miners who
received a suspension with intent to discharge after concluding
that the mine operator had a good faith belief that the complaining miners had engaged in a work slowdown. The disciplinary
action taken by the operator was based on its conclusion that the
suspended miners had engaged.in a slowdown and had violated a
number of employee 9onduct rules governing insubordination and
participation in a work stoppage or slowdown.
In addressing the
issue as to whether or not the miners conduct (operating equipment at a slow speed) was predicated on a reasonable, good faith
belief that it would have been unsafe to operate it at a greater
, the Commission accepted the judge's finding discrediting
one of the miner's assertion that he raised safety concerns prior
to the incident which precipitated the disciplinary action. The
Commission observed that none of the other complainants raised
any safety concerns with mine management before, during, or
afterf the conduct in question.
In affirming the judge's dismissal of the case, the Commission stated as follows at 8 FMSHRC
309, with respect to the failure by the complaining miners to
communicate any
concerns to management~
While such communications are not only expected,
in ordinary course, in work refusal situations, the
absence also lends weight to the conclusion that the
disagreement here as to operating speed did not have a
sound basis in
concerns.
(Citing Sammons v.
FMSHRC 1391, 1397 (June 1984).
In Miller v.
, supra, the Seventh Circuit Court of
ls upheld a Commission Judge 1 s di
of a discrimination
complaint involving a section foreman"s refusal to start up a
longwall mining machine which he believed was in an unsafe
condition. The miner took no steps to report his refusal to
start the machine to his supervisor, and in holding that the work
refusal was not protected activity, the court stated as follows
at 687 F.2d 196:

418

*

*

*

*

*

*

*

Thinking our way as best we can into the minds of the
Senators and Representatives who voted for the 1977
amendments, we can imagine them wanting to allow miners
to complain freely about the conditions of safety and
health in the mine without having to worry about retaliation if the complaint was later determined to have
been frivolous yet at the same time not wanting to
render mine operators powerless to deal with miners
who, simply by alleging a hazard to safety and health,
claim a privilege to walk off. the job without notice.
We are unwilling to impress on a statute that does not
explicitly entitle miners to stop work a construction
that would make it impossible to maintain discipline in
the mines.
As the complainant in this case, Mr. Chandler has the burden
of establishing by a preponderance of the evidence that he made
and communicated any safety qgmplaints to mine management, that
management knew or haGl reason to know about the complaints, and
that the adverse action (suspension) which followed was the
result of the complaints and therefore discriminatory.
In short,
Mr. Chandler must establish a connection between the complaints
and his suspension. See: Sandra Cantrell v. Gilbert Industrial,
4 FMSHRC 1164 (June 1982); Alvin Ritchie v. Kodak Mining Company,
Inc., 9 FMSHRC 744 (April 1987); Eddie D. Johnson v. Scotts
Branch Mine, 9 FMSHRC 1851 (November 1987); Robert L. Tarvin v.
Jim Walter Resources, Inc., 10 FMSHRC 305 (March 1988); Connie
Mullins v. Clinchfield Coal Company, 11 FMSHRC 1948 (October
1989).
I cannot conclude that Mr. Chandler has established such
a connection.
The Work Refusal
After careful review and consideration of all of the evidence and testimony in this case, I cannot conclude that
Mr. Chandler had a reasonable, good faith belief on October 16,
1989 1 that to work in wet clothes constituted a health or safety
hazard, when he refused his foreman 1 s directive to go to work,
and opted instead to leave the mine. The record establishes that
Mr. Chandler and the rest of his working unit were dry when they
arrived for work, and got wet when they left the shelter of the
supply room and walked to the man cage in an unusual downpour of
rain. Mr. Chandler conceded that he could have remained at the
supply building, rather than walk in the rain to the man cage, or
he could have asked the foreman to hold the cage until the rain
ended. He did neither.
Even though he was in close proximity to
the supply room where some rain gear was stored, Mr. Chandler
conceded that he made no attempts to ask anyone for rain gear
before walking out in the rain. Although the entire working
shift, consisting of three working units, were also exposed to

419

the soaking rain and got wet, there is no evidence that any of
these other units asked for dry clothing, and they went to work
without incident.
Although Mr. Chandler claimed that the respondent, as a
matter of practice in the past, routinely supplied dry clothing
to employees, the evidence shows otherwise. What the company did
supply was extra coveralls if an employee were exposed to oils or
other contaminants, or rain gear and boots to those employees who
were assigned work which would expose them to getting wet, or to
employees who were expected to work in wet and muddy mine areas.
I find no evidence that the respondent was obligated to otherwise
furnish employees dry clothing or wearing apparel upon request.
Under the union contract, the respondent was required to furnish
safety equipment, but not personal wearing apparel such as
clothing, shoes, boots where worn as part of normal footwear,
hats, belts, and gloves.
Instead, each employee, including
Mr. Chandler, receives an annual clothing allowance of $150 to
spend at their discretion. Mr. Chandler confirmed that he does
not keep an extra set of work clothes at the mine, but does keep
some items of personal clothing there.
Mr. Chandler confirmed that he would not expect the respondent to furnish him with a top coat, gloves, and ear muffs to
keep him warm if he were working in 15 degree temperature, but he
believed that working in wet clothes was a different situation
(Tr. 165). He further conceded that he would not expect the
respondent to furnish him dry items of work clothes such as a
shirt, overalls, and underwear, but would expect the respondent
to furnish him with coveralls.
Mr. Chandler testified that if he were furnished dry coveralls, he would have removed all of his wet clothing and worked
only in his coveralls (Tr. 103). He confirmed that he has worked
under wet mine conditions in the past 1 and had gotten wet while
working 1 but not i 1 sopping wet. uu He stated that he would only
want a
1 change of dry clothes if he were "sopping wet" and
that the degree of wetness would make a difference (Tr. 64).
Although I sympathize with Mr. Chandler's desire to perform
his work
comfort and with dry clothing, based on all of the
testimony and evidence adduced in this case, I conclude and find
that at most, Mr. Chandler has established that working in "wet,
sloppy, clothing 11 presented an uncomfortable working condition,
rather than a working condition that presented any real safety or
health hazard. As noted earlier by the arbitrator in rejecting
Mr. Burnett 1 s grievance, "getting wet in a mine or working wet is
one of those uncomfortable situations and we are not unsympathetic to any miner, Union or Management, under such circumstances." In addition, the Commission recently held that
discomfort is not a hazard justifying a protected work refusal.

420

See:
v. Monterev Coal Co., 12 FMSHRC 1505 (August
1990), where the Commission stated as follows at 12 FMSHRC 1515:
Mining is not the most comfortable of professions.
Many items of basic miner's apparel or gear such as
clothing, personal protection equipment and other
safety accessories (e.g., cap lamps and batteries,
self-rescuers, hard-toed shoes and hard hats) contribute to the general discomfort of laboring in an underground mining environment.
It is problematic, however,
to compare such discomfort, in either type or degree,
to the hazards heretofore at issue in work refusal
cases brought before the Commission.
In the final analysis, I am not persuaded that the "dry
clothing" dispute which culminated in the group work refusal and
exit from the mine by Mr. Chandler and the rest of the miners on
his working unit had anything to do with any bona fide safety or
health concerns. As noted earlier, there is no evidence that
Mr. Chandler or any of the other miners who testified in this
proceeding ever raised any sa~ety concerns or registered any
safety complaints in connection with their wet condition, and
there is no evidence that any health or safety issue was raised
in the Burnett grievance.
I believe that the dispute, which the
evidence strongly suggests was instigated by Mr. Burnett, and
which came about during a period of mine tension and labor unrest
because of the ongoing Pittston strike, was based on a somewhat
tenuous belief by the miners that the respondent had some duty or
obligation to provide them with dry clothing before requiring
them to go to work. Their requests, which management found
unreasonable and impossible to fulfill, soon escalated into a
full-blown work refusal and group exit from the mine, followed by
a wildcat strike by the entire work force which shut down the
mine and forced the respondent to obtain a court injunction to
return the miners to worko
Mr. Chandler agreed that the union could have pursued
arbitration to seek redress of the dry clothing issue, but that
it did not do so. Mr. Chandler was obviously unhappy with the
unionRs decision not to pursue the matter further when he stated
uuThatRs why rum here.
Because the company nor the union has ever
given me an answer on wet, sloppy clothing" (Tr. 155).
In this
context, and in the absence of any evidence of discrimination
within the parameters of section 105(c) of the Mine Act, I am of
the view that such disputes are best left to the union/management
collective bargaining and grievance processes.
It is not my
function, nor is it within my jurisdiction, to mediate or arbitrate such disputes under the aegis of the Mine Act.

421

The Respondent's Motivation for Mr. Chandler's Suspension
The respondent's policy and guidelines concerning "Early
Out" (employees leaving work shift early), dated August 29 and
September 15, 1989, state as follows:
[E]mployees are expected to work their full shift
unless prior authorization has been granted by management. Unauthorized early outs will subject employees
to disciplinary action up to and including discharge.
Disciplinary action will be determined on a case by
case basis.
(Exhibit R-1).
Employee's leaving work early without notifying
management, who participate in any group exits, claim
sickness to avoid work assignments, or participate in a
concerted effort to leave work early may be disciplined
up to and including discharge under the relevant provisions of the Wage Agreement.
(Exhibit R-1-A).
The respondent's_credibl'e and unrebutted testimony establishes that Mr. Chandler was suspended for insubordination and
for leaving the mine as part of a group exit prior to the end of
his regular work shift. Mr. Chandler's suggestion that
Mr. Thomas gave him permission to leave the mine is rejected.
Mr. Chandler conceded that Mr. Thomas said nothing to him about
leaving the mine, and I find no support for Mr. Chandler's
conclusion that Mr. Thomas authorized him to leave the mine
before his normal work shift ended. As for the insubordination
charge, I find that the evidence clearly supports a conclusion
that Mr. Chandler refused a direct order by foreman Rainey to go
to work, and that this conduct by Mr. Chandler constitutes
insubordination.
In the course of the hearing, and in his posthearing letter
received January 8, 1991, Mr. Chandler argued that he was not
insubordinate because foreman Rainey gave him the option of going
to work or going home, and he opted to go home. Mr. Chandler
testified that after he requested dry clothing, Mr. Rainey made a
phone call, and when he finished the call, Mr. Chandler claims he
heard Mr. Rainey make the statement 11 go to work or go home, 11 but
he believed that someone else instructed him to make that statement (Tro 82-85). Mr. Chandler had earlier testified that "the
words he caught" from Mr. Rainey were "go to work or go home"
(Tr. 18). Mr. Wisdom testified that he did not hear Mr. Rainey
make the statement, and Mr. Simon testified that he may have been
present when Mr. Rainey spoke with Mr. Chandler, and that it was
his understanding that Mr. Rainey informed the working unit that
Mr. Patterson had instructed him to tell the men to go to work or
go home (Tr. 201-203; 221).

422

Superintendent Patterson denied that he ever instructed
Mr. Rainey to give Mr. Chandler and the other miners an option to
go to work or go home, and he indicated that such a statement was
contrary to years of supervisory training and instructions that
such options are never given. Mr. Patterson confirmed that
Mr. Rainey denied making such statements. Although
Mr. Patterson's testimony in this regard is hearsay, I find it
credible and relevant and it is admissible.
See: Secretary of
Labor v. Kenney Richardson, 3 FMSHRC 8, 12 n. 7 (January 1981),
aff'd 689 F.2d 632 (6th Cir. 1982), cert. denied, 77 L.Ed.2d 299
(1983); Mid-Continent Resources, Inc., 6 FMSHRC 1132, 1135-1137
(May 1984). I also take note of the following findings of the
arbitrator in Mr. Burnett's grievance case (Exhibit C-4, pg. 4):
1.

Dale Burnett and other crew members were guilty of
refusing a direct order to go to work which was
issued by Foreman Lawrence Raines (sic) at the
power center.

2.

Dale Burnett's telling Lawrence Raines (sic) (at
the power center) that he wanted dry clothes or a
ride out set up a confrontation situation with
Management in the form of giving an ultimatum to
Management.
It is important to note that this
occurred after the issuance of the direct order by
Mr. Raines (sic). Mr. Rainey told Mr. Burnett in
the presence of the crew that he didn't have the
authority to get him dry clothes but he could get
him a ride out.
(Emphasis added).

After careful consideration of all of the testimony and
evidence, I find Mr. Chandler's testimony with respect to the
purported 11 work or go home" option by Mr. Rainey to be unreliable
and less than credible. Mro Wisdom did not hear the statement
attributed to Mr. Rainey 1 and Mr. Simon 1 s testimony is too
equivocal and speculative, and there is no indication that
Mr. Simon personally heard the statement. There is no evidence
that Mr. Chandler, Mr. Simon, or Mr. Wisdom said anything to mine
manager Thomas about going home, even though they had an opportunity to do so when he met them at the man trip as they were
leaving the section to go to the surface (Tr. 70-71). Mr. Thomas
testified credibly that he reminded Mr. Chandler and the other
men in the man trip that they had been instructed to go to work,
and the Burnett arbitrator found that the crew refused a direct
order by Mr. Rainey to go to work, and that Mr. Burnett's request
for dry clothing or a ride out of the mine came after Mr. Rainey
had issued his direct order. Having viewed Mr. Patterson in the
course of his testimony, he impressed me as a credible and
straightforward witness, and taking into account Mr. Wisdom's
favorable opinion of Mr. Patterson as a superintendent, I believe
that Mr. Patterson testified truthfully when he denied that he
ever instructed Mr. Rainey to give Mr. Chandler and the other

423

miners an option "to go to work or go home," and when he testified that Mr. Rainey denied ever making such a statement.
I find no evidentiary support for Mr. Chandler 1 s contention
that his 5-day suspension was the result of management's intention to retaliate against him for any health or safety efforts on
behalf of himself and other employees. Nor do I find any evidence of any disparate treatment of Mr. Chandler. With the
exception of Mr. Burnett, who was dealt with more severely
because of his work record, and Mr. Smith who willingly took a
1-day suspension (an option also available to Mr. Chandler), all
of the remaining miners on Mr. Chandler's work crew who refused
to go to work and left the mine received the same 5-day suspension as Mr. Chandler.
On the basis of the foregoing findings and conclusions, I
conclude and find that mine management suspended Mr. Chandler for
a violation of a company rule against leaving work early without
authorization, and for insubordination for refusing a direct work
order given to him by his fo~~man.
I further find and conclude
that management had g~od and sufficient business and disciplinary
reasons for suspending Mr. Chandler, and that the suspension was
justified. See:
Bradley v. Belva Coal Company, 4 FMSHRC 982
(June 1982); Paula Price v. Monterey Coal Co., 12 FMSHRC 1505
(August 1990); Secretary of Labor/Chacon v. Phelps Dodge Corp.,
3 FMSHRC 2508 (1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 51 (D.C. Cir. 1983).
ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that the
complainant has failed to establish a violation of section 105(c)
of the Acto Accordingly, his complaint IS DISMISSED, and his
claims for relief ARE DENIED.

~~0u0::~
Administrative Law Judge

Distribution~

Mr. Kenneth L. Chandler, Box 174, Tilden, IL 62292
(Certified Mail)
Timothy M. Biddle,
., Claire s. Brier, Esq., CROWELL & MORING,
1001 Pennsylvania Avenue, N.W., Washington, DC 20004-2505
(Certified Mail}
/fb

424

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

22041

MAR 15 '99l
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 90-147-M
A.C. No. 41-02976-05525 A

v.
Helotes Mine
CARL STRATING, EMPLOYED BY
SOUTH TEXAS AGGREGATES
INCORPORATED,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 90-148-M
A.C. No. 41-02976-05524 A

v.
Helotes Mine
JINKS COLEMAN, EMPLOYED BY
SOUTH TEXAS AGGREGATES
INCORPORATED,
Respondent

DECISION
Appearances~

Before~

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia
for the Petitioner;
Carl strating, south Texas Aggregates, Inc.,
Knippa, Texas, Pro se, and on behalf of
Jinks Coleman.

Judge Melick

These consolidated cases are before me upon the petitions
for civil penalties filed by the Secretary pursuant to
Section llO(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801 et seq., the "Act," charging earl Strating and
Jinks Coleman as officers and agents of a corporate mine
operator, South Texas Aggregates, Inc., (South Texas) with
knowingly authorizing, ordering, or carrying out two violations

425

by the named mine operator. 1
Neither Strating nor Coleman dispute that they were both
officers and agents of the cited corporate mine operator however
they both dispute that they "knowingly authorized, ordered, or
carried out" the cited violations of the corporate mine operator.
The issues before me therefore are whether indeed there were
violations as alleged and, if so, whether either Coleman or
Strating, or both, acting as officers or agents of the corporate
mine operator "knowingly authorized, ordered, or carried out"
such violations. If it is determined that either Strating or
Coleman, or both, acted in such manner then a civil penalty must
also be assessed considering the appropriate criteria under
section llO(i) of the Act.
strating and Coleman, are first charged in Dockets No.
CENT 90-147-M and CENT 90-148-M respectively with knowingly
authorizing, ordering or carrying out the alleged violation of
the corporate mine operator as charged in Citation No. 3278307.
That citation reads in relevant part as follows:
Excessive ~ydralid [sic} leaks due to chaffing
(sic] high pressure, (2500 psi) lines in the engine
compartment of the 275B Michigan front loader and the
subsequent rupture of one of these lines caused the
unit to explode in flames on December 14th, 1988.
Flames rapidly engulfed the operator's cab due in part
to missing protective panels. The operator jumped
7 1/2 feet to escape the flames breaking both ankles.
The hydralic [sic] leaks had been reported repeatedly
on pre-shift inspection reports. This is an
unwarrantable failure.
Since Section llO(c) of the Act predicates individual
liabil
of a corporate agent or officer upon the finding of a
violation of a mandatory health or safety standard by the
corporate
I am strictly limited in determining whether
there indeed was individual liability under section llO(c) of
1

Sect

llO(c) of the Act reads as follows:

Whenever a corporate operator violates a mandatory heal th
or
standard or knowlingly violates or fails or
refuses to comply with any order issued under this Act or
any order incorporated in a final decision issued under
s Act r except an order incorporated in a decision
issued under subsection (a) or section 105(c), any
director, officer, or agent of such corporation who
knowingly authorized, ordered, or carried out such
violation, failure, or refusal shall be subject to the
same civil penalties, fines, and imprisonment that may be
imposed upon a person under subsection (a) and (d).

426

Act to evaluation of only the precise allegations in the
citations themselves and not allegations or charges of other
violations that may have been stated elsewhere in the petitions
for civil penalty.
The essence of the charge in the citation is "excessive
hydraulic [sic] leaks due to chaffing [sic] high pressure, (2500
psi) lines in the engine compartment of the 275B Michigan frontloader and the subsequent rupture of one of these lines causing
the unit to explode in flames on December 14, 1988".
At hearings, however, the Secretary conceded that, despite
thorough investigation of the explosion/fire on the cited loader,
she was unable to determine the cause of the accident.
Indeed
she further conceded at trial that the one chafed hydraulic hose
discovered after the fire was not in itself a safety defect for
which the operator was chargeable--apparently because of its
nearly inaccessible location on the loader.
In light of these
concessions it is clear that the Secretary has not proven the
essential allegations in Citation No. 3278307. The charges
herein against Strating and Coleman, based upon those
allegations, must accordingly be vacated.
In any event even if the Secretary had proven the existence
of the cited violation, there is insufficient evidence that
either of the Respondents had the requisite knowledge of such
conditions before the accident at issue. The Commission defined
the term "knowingly," in Kenny Richardson v. Secretary of Labor,
3 FMSHRC 8 (1981), 689 F.2d 632 (6th Cir. 1982), cert denied, 461
U.S. 928 (1983} as follows:
"Knowingly", as used in the Act, does not have any
meaning of bad faith or evil purpose or criminal
intent.
Its meaning is rather that used in contract
law, where it means knowing or having reason to know.
A person has reason to know when he has such
information as would lead a person exercising
reasonable care to acquire knowledge of the fact in
question or to infer its existence
We believe this interpretation is consistent with
both the statutory language and the remedial intent of
the coal Act.
If a person in a position to protect
employee safety and health fails to act on the basis of
information that gives him knowledge or reason to know
of the existence of a violative condition, he has acted
knowingly and in a manner contrary to the remedial
nature of the statute.
3 FMSHRC 16.
While there is credible evidence that some management
personnel i~cluding the victim's father, Billy Tucker, were
apprised of some hydraulic oil leakage on almost a daily basis
(and most certainly on December 12, 1988, two days before the

427

accident) there is no direct and insufficient circumstantial
evidence that either Respondent herein was aware of uncorrected
unsafe hydraulic oil leakage on the cited loader on the morning
of the accident. While there is indeed credible evidence that
both had been apprised from time-to-time of hydraulic oil leakage
from the cited Michigan loader, the evidence does not show that
they had been recently apprised of this problem or that previous
efforts had not been made to correct this problem. Indeed even
the loader operator himself acknowledged that the last and only
time he reported such leakage directly to Mr. Strating was 1 or 2
months before the accident and to Mr. Coleman some 3 or 4 weeks
before the accident.
In addition, while the service person
responsible for replacing the lost hydraulic oil, Fred Vanwinkle,
reported in a statement to investigators that he had complained
to Carl (Strating) and Jinks (Coleman) about the so-called
excessive leakage of hydraulic oil, the statement is ambiguous as
to when VanWinkel complained specifically to the Respondents. 2
Vanwinkle also reported in that statement that the first line
manager responsible for repairing the loader was Frank Bluemel,
the mine superintendent.
The evidence also shows that the Michigan loader was
frequently undergoing repairs to correct hydraulic oil leakage
problems and was worked on as recently as the Saturday before the
accident.
It is also clear that it was in the economic self
interest of the Respondents, because of the high cost of
hydraulic oil, to remedy any excessive hydraulic oil leakage.
The service records in evidence (Exhibit s-10, reproduced
h8rein as Appendix A) for the cited Michigan loader do not,
moreover 1 support the Secretary's position that there was such
excessive daily oil leakage and such an absence of repairs that
the Respondents should have had knowledge of uncorrected leakage
in close proximity to the time of the accident.
Indeed, the
records show that on the day of accident, December 14, no
hydraulic oil was added before the loader was operated and that
on the day before only five gallons was added. While ten gallons
had been added on December 12, the records show that none was
added over the four preceding days. Thus, according to the
Secretarygs own evidence the average daily consumption of
hydraulic oil over that seven day period was only 2.1 gallons-well within the limits of expected normal consumption. Even if
the loader had not been used over that preceding weekend, and
therefore eliminating those two days from the calculations, the
average consumption of hydraulic oil over the preceding week was
only three gallons per day--still within the normal range of
expected consumption.In addition, mechanic Mo Garcia testified
credibly that he had repaired a hydraulic leak on the loader only
the Saturday before the accident.
2

vanWinkle did not appear or testify at trial.

428

While several of the Secretary's witnesses also suggested
that the consumption of hydraulic oil on the Michigan loader was
about 25 gallons per day, the service records introduced by the
Secretary (covering the period from November 2, 1988 to December
14, 1988) show that on only one day was as much as 25 gallons of
hydraulic oil added to the cited Michigan loader--and that for
the following two days none was added.
This documentary evidence is important for several reasons.
One, it sheds doubt on the credibility of several of the
Secretary's key witnesses and suggests that they may have been
exaggerating the consumption of hydraulic oil on the Michigan
loader, and, two, that the consumption over the week prior to the
accident was within the acccepted normal range for such
equipment. Accordingly, it cannot reasonably be inferred that
the Respondents herein should have been on notice of any
significant hydraulic oil leakage around the time of the accident
for the simple reason that the records produced by the Secretary
show that indeed there was not. . significant consumption of such
oil during that time. - Thus I cannot find that the Secretary has,
in any event, met her burden of proving that either Respondent
Coleman or Strating "knowingly authorized, ordered, or carried
out" the cited violation even assuming that there was a
violation. Accordingly the charges that Strating and Coleman
"knowingly authorized, ordered, or carried out" a violation as
charged in Citation No. 3278307 must for this additional reason
be vacated and dismissed.
In each of these cases (Dockets No. CENT 90-147-M and
CENT 90-148-M) Mssrs. Strating and Coleman were also charged
with having "knowingly authorized, ordered, or carried out" the
violation of the corporate mine operator charged in Order
Noo 3063887" That Orderr as modifiedr reads in pertinent part as
follows
Defects on the Hough 560 front end loader were not
corrected prior to continued operation which were
hazardous to persons. The equipment was taken out of
service for repairs to be completed but put back into
service prior to completion. Defects are: Leaks in
Hydraulic system, leaks in bucket cylinder-right side,
leak in steering cylinder, hydraulic tank leaking, oil
filter leaking, fuel system leak, brake fluid storage
tank both left and right rear wheel cylinders leaking,
inspection plates missing, both left and right hoist
cylinder pressure hoses rubbed threw [sic] to inside
metal covering, fuel/stop linkage disabled which
required operator to dismount loader, walk to opposite
side ot machine and manually cut off engine.

429

The Secretary's evidence regarding these allegations against
Strating and Coleman is again insufficient. Whether or not there
was a violation as charged, the evidence does not show that
either of the Respondents had any knowledge or reason to know
that the cited loader was placed in service on January 5, 1989,
after having been taken out of service and parked for repairs.
Indeed the fact that the cited loader had been taken out of
service in the first place shows recognition by someone that
defects indeed needed correction. The credible evidence shows
that the pit foreman, Billy Tucker, approached mine
superintendent Frank Bluemel that day advising him that a
"shovel" had broken down and that he needed the cited Hough
loader. The credible record shows that, without consulting
anyone, Bluemel authorized Tucker to use the cited loader. Under
these circumstances the fact that both Respondents may have
previously been aware of hydraulic oil leakage and other problems
with the Hough loader is immaterial. The credible evidence shows
that it was Bluemel alone, or Bluemel and Billy Tucker together,
who authorized the use of the Hough loader. Therefore, whether
or not there was a violation of the mandatory standard charged
in Order No. 3063887~ there ls irt~ufficient evidence that either
Respondent Coleman or Strating, "knowingly authorized, ordered,
or carried out" any such violation. The charges in the captioned
cases relating thereto must accordingly be dismissed.
ORDER

/,t

Civil Penalty Proceedings Docket Nos.
CENT 90-148-M are hereby dismisse l.

c

T 90-147-M and

AU"'~-'\ ~Az~,J~
l
1

.J

Gary Melick
· Administrative Law Judge
1
Distribution:

Departml~t

J. Philip Smith, Esq., U.S.
of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, 4th Floor, Arlington, VA 22203
(Certified Mail)
Mr. Carl Strating, South Texas Aggregates, Inc., P.O. Box 217,
Knippa, TX 78870 (Certified Mail)
Mr. Jinks Coleman, South Texas Aggregates, Inc., P.O. Box 217,
Knippa, TX 78870 (Certified Mail)
nb

430

APPENDIX A_

Gallons of Hydraulic Oil Added

Date
and Day of Week

LR-5
Hough 560 Loader

w
T
M

s

Sa
F
Th

w
T
M

s
Sa
F
Th

w

T
M

s

Sa
F

Th

w
T
M

s

Sa
F

Th

w
T
M

s

Sa
F

Th

w
T
M

s

Sa
F

Th

w

12/14
12/13
12/12
12/11
12/10
12/9
12/8
12/7
12/6
12/5
12/4
12/3
12/2
12/1
11/30
11/29
11/28
11/27
11/26
11/25
11/24
11/23
11/22
11/21
11/20
11/19
11/18
11/17
11/16
11/15
11/14
11/13
11/12
i1r 1
11/10
11/9
11/8
11/7
11/6
11/5
11/4
11/3
11/2

(Z230)
175B Michigan Loader

15
5
0
20
0
20
15
15
10
' -0 .
no record
0
- no record no record - illegible 10
20
- no record or
- no record or
- no record or
- no record or
no record or
0
5
no record -

-

-

0
- illegible -

10
15
10
- no record or
- no record or
- illegible 20
- illegible - illegible 7
- no record or
- no record or
no record or
5
- illegible - illegible

-

-

431

0
5
10
0
0
0
0
20
15
5
- no record
5
no record
- no record - illegible 0 ("OK")
7
illegible illegible
illegible illegible
illegible 15
10
- no record 0
0
25
illegible 0
illegible illegible - illegible 0
- illegible - illegible 0 ("OK")
illegible illegible illegible 20
illegible
10

-

-

-

~

-

-

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

MAR 15 !99i
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 90-160
A.C. No. 46-06887-03519

v.
Docket No. WEVA 90-180
A.C. No. 46-06887-03520

MACK ENERGY COMPANY,
Respondent

Montague Mine
DECISIONS
Appearances:

Pamela s. Silverman, Esq., Office of the
Solicitor, U.S. Department of Labor, Arlington,
Virginia, for the Petitioner;
Gerald P. Duff, Esq., HANLON, DUFF & PALEUDIS,
St. Clairsville, OH 43950 (Certified Mail)

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the pet
against the respondent pursuant
to section llO(a) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 820(a).
Docket No. WEVA 90-160, concerns
alleged violations of mandatory safety standards 30 C.F.R.
§§ 77.410(a) (1), and 71.803(a), and Docket No. WEVA 90-180,
concerns two alleged violations of mandatory safety standard
30 C.F.R. § 77.1605(b).
filed timely notices of contests and hearings
The
The parties filed
were held in Charleston, West Virginia.
, and I have considered their arguments in the
posthearing
udication of these cases.
course of my

The issues presented are (1) whether the cited conditions or
practices constitute violations of the cited standards;

432

(2) whether the alleged violations were significant and substantial (S&S); (3) whether the alleged violations were the result of
the respondent's unwarrantable failure to comply with the cited
standards; and (4) the appropriate civil penalties to be assessed
for the violations taking into account the civil penalty assessment criteria found in section llO(i) of the Act.
Applicable Statutory and Regulatory Provisions

1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seq.
2.

Sections 104(d) (1) and 110(1) of the Act.

3.

Commission Rules, 29 C.F.R.

§

2700.l, et seq.

Pretrial Rulings (WEVA 90-160)
By motions received on Friday, November 30, 1990, the
respondent moved to dismiss this case on the ground that the
petitioner's proposals for assessment of civil penalties were
untimely filed, and that one of the citations (No. 9960563),
initially listed an improper section of the regulation.
In the course of a pretrial telephone conference held with
the parties on November 30, 1990, respondent's counsel was
reminded of the fact that Chief Judge Paul Merlin issued a prior
ruling on August 2, 1990, accepting the late filing of the
petitioner's proposal for assessment of civil penalty. Respondent's counsel acknowledged that his file was incomplete and that
he was unaware of this ruling when the motion was filed.
I
informed counsel that the record reflects that the petitioner's
proposals were filed 20 days late, and that in the absence of any
showing of prejudice, and in view of the decision in Salt Lake
Countv Road Department, 3 FMSHRC 1714 (July 1981), Judge Merlin's
prior ruling would stand and I reaffirmed it and denied the
respondent's motion.
With regard to the motion to dismiss Citation No. 9960563,
on the ground that the citation initially cited an improper
section of the Part 70 standards, counsel was reminded of the
fact that the inspector subsequently modified the citation to
cite section 71.803(a), instead of 70.508(a), and that the
respondent has paid the proposed civil penalty assessment of $20
for the violation.
Counsel confirmed that including this issue
as part of his motion was an oversight and it was withdrawn.
Stipulations
The parties stipulated to the following (Tr. 5-6):

433

1.

The respondent is the operator of the Montague

2.

The respondent and the mine are subject to the

Mine.
Act.
3.
The presiding judge has jurisdiction to hear
and decide these matters.

4. MSHA Inspector Sherman Slaughter was acting in
his official capacity when he issued the contested
citation and orders.
5.
True copies of the citation and orders were
properly served on the respondent or its agent.

6. With regard to Docket No. WEVA 90-160, the
respondent's history of prior violations consists of
41 assessed violations which were issued during
42 inspection days. The violation frequency rate is
.97 assessed violations ~er inspection day, and
reflects a moderate history of prior violations.
7. With regard to Docket No. WEVA 90-180, the
respondent's history of prior violations consists of
43 assessed violations issued during 45 inspection
days. The violation frequency rate is .95 assessed
violations per inspection day, and reflects a moderate
history of prior violations.
8. The cited conditions and practices were abated
by the respondent within the times fixed by the
inspector.
9.
The respondent is a moderate size mine operator with a company annual production of 222,031 tons,
and a mine production of 209,000 tons.

10. With regard to Docket No. WEVA 90-180, petitioner9s exhibit G-4, is a true copy of the preshift
examination report concerning the No. 71, R-50 rock
truck.
The parties agreed that the respondent has paid a $20 civil
penalty assessment for section 104(a) Citation No. 9960563,
issued by MSHA Inspector James M. Wills on January 11, 1990, for
a violation of 30 C.F.R. § 71.803(a), and that this violation
no longer in issue in Docket No. WEVA 90-160.

434

Discussion
Docket No. WEVA 90-160
This case concerns a section 104(d) (1) "S&S" Citation
No. 3334094, issued by MSHA Inspector Sherman Slaughter on
December 4, 1989. The inspector cited a violation of mandatory
safety standard 30 C.F.R. § 77.410(a) (1), and the cited condition
or practice is described as follows:
The R-50 Euclid rock truck (Co. No. 76) being used
to haul spoil at the mine was not equipped with an
automatic alarm that would give an audible alarm when
the truck was put in reverse or any other type of
warning device (sic). This mine had ten citations
issued during an eight month period (10/1/88 to
6/30/89) for violations of 77.410, 30 CFR according to
violation history contained in UMF.
Docket No. WEVA 90-180
This case concerns two section 104(d) (1) 11 S&S 11 orders issued
by Inspector Slaughter on January 4, 1990. Section l04(d) (1)
11
S&S" Order No. 3334014, issued on January 4, 1990, cites a
violation of mandatory safety standard 30 C.F.R. § 77.1605(b),
and the cited condition or practice is described as follows:
The Euclid R-50 rock truck (Co. No. 71) being used
at the mine to haul spoil was not equipped with adequate brakes in that the truck could not be brought to
a stop on the inclined haulroad where it was being used
with a load and when the service brakes were applied
and the truck was rolling before they were applied.
The equipment operatoris preshift safety check list
showed that the operator of the truck had reported the
condition by checking the column "needs corrected" for
01
foot brakes. 11 The check list was dated 1/4/90 and
signed by the equipment operator who according to the
foreman, Grover Riddle, was the competent person who
inspected the truck before it was placed in operation,
Section 104(d) (1) 11 S&S" Order No. 3334015, issued on
January 4, 1990, cites a violation of mandatory safety standard
30 C.FoR. § 77.1605(b), and the cited condition or practice is
described as follows:
The Euclid R-50 rock truck (Co. No. 71) being used
at the mine to haul spoil was not equipped with an
adequate parking brake in that when the truck was
stopped in the inclined area of the haulroad with the
bed loaded and the transmission in neutral {the truck

435

backed up the incline and then put the truck in neutral) and the park brake applied the truck would roll
off. The equipment operator's preshift safety check
list showed that the operator of the truck had reported
the condition by checking the column "needs corrected"
for "parking brakes." The check list was dated 1/4/90
and signed by the equipment operator who according to
the foreman, Grover Riddle, was the competent person
who reported the truck before it was placed in
operation.
Petitioner's Testimony and Evidence - WEVA 90-160
MSHA Surface Coal Mine Inspector Sherman Slaughter testified
as to his experience, training, and prior private industry work
experience which included the operation of rock trucks. He
confirmed that he has conducted several inspections at the mine
beginning in June, 1989, and has spent in excess of 20 days at
the mine during these inspections. He described the mine as an
open pit surface mining operation with primarily level terrain
and indicated that tbe coal ~s located approximately 65 to
70 feet below the surface, and the coal is mined by removing the
overburden and mining the coal "lift." He further stated that
the mine has approximately 42 employees, and operates on two
production shifts. The mine has six mechanics, and 13 to
16 people work the evening shift, and there are approximately
20 pieces of mining equipment at the mine at any given time (Tr.
9-15) .
Mr. Slaughter stated that based on his review of the respondent 1 s compliance and violation history, which includes "quite a
few citations, 11 he believed that the respondent had a compliance
problem which required "special emphasis" by MSHA's "target
mines 11 programo He concluded that the respondent has an "above
averageH compliance record for an operation of its size.
Mr. Slaughter confirmed that he conducted an inspection at
the mine on December 4, 1989, and he identified exhibit G-1, as a
copy of h
inspection notes for November 16, 1989, when the
inspection began, as well as December 4, 1989, when he issued
citation No. 3334094 (exhibit G-2). He confirmed that foreman
Bud Connor accompanied him during the inspection (Tr. 16-20).
Mr. Slaughter stated that he went to the pit area and
observed a back hoe, a dozer, scrapers, and surface personnel
coming in and out of the pit. He also observed the cited R-50
Euclid truck in operation, and he requested the driver to operate
the truck in reverse, and when he did, the reverse backup alarm
did not work. Mr. Slaughter stated that the alarm is usually
installed at the rear of the truck, and that when he and
Mr. Connor looked for it they discovered that the truck had no
alarm at all installed on it. Since section 77.410(a) (1)

436

required the truck to be equipped with a warning alarm which
gives an audible alarm when it is put in reverse, Mr. Slaughter
issued the citation (Tr. 20-22).
Mr. Slaughter stated that he based his significant and
substantial (S&S) finding on the fact that the pit where he
observed the truck in operation was a small area with not much
room, and the haulroad leading to the pit was congested. There
were approximately six people working in the pit, and two haulage
trucks were operating on their normal "haul cycle," and they
would have to pull in and out of the pit area ramp while loading.
Mr. Slaughter stated that he further considered the fact
that service personnel would be in the pit area servicing the
equipment, and if the trucks needed to be serviced they would
direct the trucks to back up to be available for servicing. He
also stated that personnel working in the pit would take their
lunch breaks at the pit area, and that the haulage trucks would
be the last vehicles to come in for the lunch period. The
employees taking lunch, as well as a dozer operator, would be on
the ground during this time. -··He confirmed that the citation was
issued during the lunch hour, and while he observed people on
foot, he could not recall whether any of the trucks were operating at that time.
Mr. Slaughter stated further that service personnel signalling the truck would be on foot and that the driver sometimes
eats his lunch in the truck with the engine running.
If he
decided to back up, the lack of a reverse alarm may not serve to
alert personnel on foot that the truck would be backing up. He
also indicated that a foreman drives a small pickup truck in and
out of the pit and may not be paying attention to a truck which
may be backing up (Tr. 22-30).

Mro Slaughter stated that the truck in question weighs
approximately 100,000 lbs and has a rated payload capacity of
50 tons" The tires are approximately 6 feet high, and he confirmed that he has driven such a truck. He stated that the
driver 1 s view to the rear through the rear-view mirrors would be
obscured for a large distance, but that he could see out of the
side windows.
Based on all of these factors, Mr. Slaughter
concluded that given the weight of the truck, the congested pit
area, and the presence of other equipment and people on foot, it
was reasonably likely that a fatal accident would occur if it
were to back over someone.
If the truck struck another piece of
equipment, he believed it was reasonably likely that a
n lost-time 11 accident, rather than a fatality, would occur (Tr.
30-33).

Mr. Slaughter further stated that he was aware of at least
one fatal accident incident in his district where a dozer operator left his machine on a haulage road and was killed when he got

437

behind a truck and was run over. He also alluded to an MSHA
11
fatalgram 11 which reflected a fatal accident when a rock truck
backed over a pickup truck. He confirmed that the rock trucks
"back up all the time" at the mine for different reasons (Tr.
33-36).
Mr. Slaughter stated that he based his "high negligence"
findings and belief that the respondent engaged in "aggravated
conduct" on the fact that the respondent had been previously
cited 10 times for violations of section 77.410, which should
have made it aware that it had a problem which needed to be
corrected and that an inspection program was needed. He also
believed that the lack of an alarm would be obvious to the
back-hoe and dozer operator. He confirmed that the work shift
began at 6:30 a.m., and that he issued the citation at 12:30 p.m.
(Tr. 36-40).
Mr. Slaughter believed that the 10 prior citations for
violations of section 77.410, was "high," and he confirmed that
he discussed this with mine management and advised them that
there was a need to develop a safety program to address the
problem and that if this weri-not dcine any future citations for
violations of this standard would be "unwarrantable" violations
(Tr. 44-45).
Mr. Slaughter stated that he discussed the matter with mine
superintendent Jack Wilfong. Mr. Slaughter confirmed that the
respondent had a safety program, and it was his understanding
that it was communicated to employees by giving them copies with
their pay checks. He also confirmed that the respondent used its
equipment operators as the competent persons to inspect their
equipment, but he believed that the respondent needed to instruct
the operators as to how they should conduct these inspections and
needed to retrain them to report equipment conditions which
needed attention (Tr. 45-49).
Mr. Slaughter stated that during his discussions with the
superintendent, the superintendent informed him that he was
having problems with equipment break downs, and that "he tried to
fix these things when they occurred on a priority bas 11 (Tr.
9)

0

On cross-examination, Mr. Slaughter confirmed that he was
aware of no fatalities or injuries at the mine attributable to
the lack of a reverse alarm on a piece of equipment. He also
confirmed that the respondent 1 s truck operators were competent
and well-trained in the operation of their equipment. He further
confirmed that with the exception of the lunch hour, there was
not much foot traffic in the pit area, and that those people on
foot would generally observe a truck, and that service personnel
would have their attention directed to the truck (Tr. 50-52).

438

Mr. Slaughter confirmed that he did not see any preshift
inspection report concerning the cited truck. He reiterated that
the truck was not equipped with a reverse alarm, but if it were
so equipped, and did not sound when the truck was operated in
reverse, he would have cited subsection (c) of section 77.410.
He confirmed that he and foreman Connor looked for the alarm on
the cited truck but could not find one installed on the truck.
He agreed that a reverse alarm could break down after 6 hours of
use (Tr. 53-56).
Mr. Slaughter again confirmed that the equipment operators
were used to inspect their equipment, and that in the event they
did not report a condition which needed attention, mine management might not know about the condition. He confirmed that he
was never present during any safety meetings at the mine, but
conceded that they may have been held (Tr. 56).
Mr. Slaughter confirmed that he terminated the citation on
December 14, and he did not know whether the respondent may have
corrected the condition earlier. All that he knew was that the
reverse alarm was working properly when he again inspected the
truck to terminate the citation. He believed that a reverse
alarm on a truck would "get a person's attention to be on the
look-out" for a truck operating in reverse. Mr. Slaughter does
not recall speaking with the truck driver or what he may have
said about the reverse alarm (Tr. 57-62).
Petitioner's testimony and Evidence - WEVA 90-180
Inspector Slaughter confirmed that he conducted a spot
inspection at the mine on January 4, 1990, and he identified
copies of his inspection notes of January 2 and 4, 1990 (Exhibit
G-4). He also confirmed that he issued two section 104(d) (1)
orders for inadequate service brakes and the parking brake on the
cited truck in question (exhibits G-5 and G-6).
With regard to Citation No. 334014, concerning the inadequate service brakes, Mr. Slaughter stated that he went to the
mine to conduct a spot inspection of a back hoe. He noticed that
the cited truck was in operation and he spoke with the driver and
requested him to test the truck after he left the pit with a
load. He asked the driver to apply the brakes when he drove down
the inclined portion of the roadway, and when the driver applied
the brakes the truck would not stop. The inspector confirmed
that the driver informed him that the brakes would not hold or
stop the truck.
Inspector Slaughter stated that the procedure he followed
for testing the truck was a normal method followed by MSHA
inspectors and that this functional test is routinely done by
inspectors to test the adequacy of brakes on an inclined portion
of a roadway where a truck is normally used. He further stated

439

that the term "adequate" brakes means that a truck driver can
stop and control a loaded truck while traveling on his normal
route of travel after applying the service brakes, and in this
case, he confirmed that the service brakes would not stop the
truck when the driver applied the brakes (Tr. 84-90).
With regard to Citation No. 334015, concerning the truck
parking brake, Inspector Slaughter stated that the driver put the
truck in neutral gear on an inclined portion of the roadway, and
the brake would not hold. He confirmed that he requested the
driver to apply the parking brake a second time under similar
circumstances, and when he did, the brake would still not hold
the truck. Mr. Slaughter confirmed that it was sometimes necessary to stop and park the truck on an incline when there was a
breakdown. He confirmed that foreman Grover Riddle was with him
when the truck was tested (Tr. 90-94).
In support of his significant and substantial (S&S) finding
with respect to the truck service brakes, Mr. Slaughter stated
that he considered the fact that the haul road over which the
truck operated was "up and do.wn" and that there was a 11 swag 11 at
the intersection witlra roadway used as a normal approach to the
pit. He also indicated that the main roadway would not allow two
trucks to pass each other, and one truck would have to pull over
and wait for the other one to pass. He also considered the fact
that the left side of the roadway was elevated, as well as
inclined, at an approximate grade of 7 to 10 percent, and that
the swag area near the pit roadway was a "blind spot" except for
a distance of 100 feet prior to the intersection (Tr. 94-99).
Mr. Slaughter stated that the speed of the truck while
traveling down the inclined portion of the roadway approaching
the pit roadway intersection would be approximately 20 miles per
hour, and that dozers, scrapers, and other rock trucks would be
operating at the intersection as they exited the pit. Although
the primary roadway was bermed with 40-to-45-inch high berms, he
ieved that a loaded truck traveling down the inclined roadway
with inadequate brakes would travel through the berm. He also
believed that a truck driver who attempted to position his truck
close to the pit hill to facilitate the loading of the truck
would be exposed to a hazard of going over the hill if the brakes
would not hold (Tr. 99-100).
Mr. Slaughter confirmed that the trucks are equipped with
transmission retarders which could serve as a braking device but
that they are disconnected for longer transmission torque life
and that there
no requirement for the use of the retarders.
Given the size of the truck, including its load, he believed that
a fatal accident was reasonably likely and that one person would
be at risk (Tr. 101-102).

440

With regard to the parking brake citation, Mr. Slaughter
confirmed that he based his S&S finding on the fact that the
truck is parked at different mine areas for different reasons.
Although the driver informed him that the parking brake would not
hold the truck and that he tried to park it in a low spot when it
was necessary, Mr. Slaughter believed that the truck may be
parked in an inclined area and "roll off" (Tr. 103).
Mr. Slaughter stated that a truck driver may or may not get
out of his truck when it is parked, and that he has observed
trucks which were out of commission parked with the operator out
of the truck. He confirmed that service trucks go the pit area
to service equipment, and that employees eat their lunch at the
pit.
If a truck was to run over someone, he believed that it was
reasonably likely that it would result in a fatal injury.
Further, if a driver found what he believed was a "low spot" to
stop and park his truck, this may not be the case, and if the
truck rolled and struck someone, it would be reasonably likely
that a fatality would occur.
With regard to his "high" negligence findings with respect
to both violations, -M'r. Slaughter stated that the truck driver,
Harold Johnson, informed him that he had reported the fact that
the brakes would not work for "the past three days."
Mr. Slaughter identified exhibit G-7 as the equipment check-lists
filled out by the truck driver, and he confirmed that Mr. Johnson
provided him with a copy of his checklist for January 4, 1990,
and that he (Slaughter) only became aware of the checklists dated
January 2 and 3, 1990, shortly before the hearing.
Mr. Slaughter confirmed that Mr. Johnson was designated by
the respondent as the competent person to inspect the trucks, and
that Mr. Johnson told him that he operated the truck because he
would not have any other work to do and would be sent home if he
did not drive it. Mr. Slaughter further confirmed that he
discussed the matter with mine foreman Grover Riddle, but he
could not recall what was specifically discussed. He further
confirmed that he did not know what was wrong with the brakes and
terminated the orders after finding that the service brakes and
parking brakes would stop and hold the truck (Tr. 117-125).
On cross-examination, Mr. Slaughter stated that there are no
MSHA guidelines for determining the adequacy of brakes pursuant
to section 77.1605(b), and that he relies on his experience with
the equipment to make such a determination.
He confirmed that
the driver, Mr. Johnson, was alone in the truck and that he
(Slaughter) did not know how hard Mr. Johnson applied the brakes
or whether he in fact made an honest effort to apply the brakes.
He confirmed that he knew that Mr. Johnson applied the brakes
because he heard the noise made by the air valves. He further
confirmed that the truck brakes were air-over-hydraulic, and that

441

he did not ride in the cab with the driver because the truck only
has one seat.
Mr. Slaughter confirmed that the truck driver on the first
shift (Roach) also filled out check-lists for his inspections of
the truck and found nothing wrong with the brakes. He further
confirmed that he did not speak with Mr. Roach or have him test
the brakes during his shift. He stated that he was not aware
that the prior citations involved any injuries or fatalities at
the mine as a result of improper brakes on any of the respondent 1 s trucks, and he confirmed that the check-lists filled out
by Mr. Johnson do not state that the truck was inoperative.
Respondent's Testimony and Evidence
Jerry Gomer, respondent's secretary and treasurer, identified exhibit R-A as a summary of the repairs made to the cited
truck for December, 1989, and he stated that this reflects that
extensive brake work was done on the truck. He also identified
exhibit R-B as an MSHA Safety award presented to the respondent
in 1988, and exhibit R-C as &-financial statement prepared by the
respondent's accountaht reflecting an accrued loss of $540,000.
Mr. Gomer believed that the payment of civil penalty assessments
"would affect the viability" of the respondent (Tr. 158-163).
On cross-examination, Mr. Gomer stated that payment of the
proposed civil penalty assessments in these proceedings would
probably not put the respondent completely out of business (Tr.
164). Respondent's counsel confirmed that Mr. Gomer had no
personal knowledge of the cited conditions or practices in these
cases (Tr. 166). Mr. Gomer stated that the respondent has a
safety program instituted by the State of West Virginia Department of Energy, that it is reviewed annually, and that he makes
sure that each employee receives a copy of the respondent's
safety program annual
with their pay checks (Tr. 166).
Findings and Conclusions
Fact of Violation
Section 104(d) (1} 11 s&s 1v Citation No. 3334094, December 4, 1989,
(Docket No. WEVA 90-160)
In this case, the respondent
charged with a violation of
mandatory safety standard 30 C.F.R. § 77.410(a) (1), for failure
to equip the cited rock truck with an automatic backup alarm that
would give an audible alarm when the truck was put in reverse.
The cited standard provides as follows:

442

§

77.410

Mobile equipment; automatic warning devices.

(a)
Mobile equipment such as front-end loaders,
forklifts, tractors, graders, and trucks, except pickup
trucks with an unobstructed rear view, shall be
equipped with a warning device that -(1)
Gives an audible alarm when the equipment is
put in reverse; * * *
I take note of the fact that section 77.410(a) (1), is
presently included in MSHA's Part 77 regulations, which were
revised as of July 1, 1990. The citation was issued on
December 4, 1989, and section 77.410, which was included under
the Part 77 regulations revised as of July 1, 1989, provided as
follows:
Mobile equipment, such as trucks, forklifts, front-end
loaders, tractors and graders, shall be equipped with
an adequate automatic warning device which shall give
an audible alarm when such equipment is put in reverse.
Although the inspector cited section 77.410(a) (1), rather
than section 77.410, he testified that section 77.410(a) (1),
became effective in September, 1989, and the requirements of both
standards with respect to backup alarms are identical (Tr. 53).
I find no procedural defect in the citation, nor can I conclude
that the respondent has been prejudiced by the inspector's
citation of the revised standard, rather than the previous
standard which was in effect at the time the citation was issued.
The inspector testified that when he observed the truck in
operation, respondent's foreman, Bud Connor, was with him. The
inspector requested the driver to operate the truck in reverse,
and when he did, the alarm did not sound. The inspector confirmed that when he and the foreman looked for an alarm, which is
usually installed on the rear of the truck, it was discovered
that no alarm was installed on the truck. The inspectorgs notes,
made in the course of his inspection on December 4, 1989, reflect
that upon inspection of the cited truck he noted that "the backup
alarm would not work.
(There was none on it)" (Exhibit G-1, pg.
3 2) •

In its posthearing brief, the respondent argues that the
citation issued by the inspector is not clear as to whether there
was an alarm on the truck and it was not working, or whether
there was no alarm. Respondent also asserts that the preshift
report did not show that the alarm was missing or inoperative.
With regard to the preshift report, the inspector testified
that he never reviewed any such report (Tr. 52).
Further, the
report is not a matter of record, and the respondent never

443

produced it at the hearing. Under the circumstances, the respondent's argument is rejected. The truck driver and the foreman
who accompanied the inspector did not testify in this case, and
the inspector's testimony, which I find credible, is unrebutted.
The inspector confirmed that he cited a violation of section
77.410(a) (1), because the cited truck was not equipped with a
backup alarm that would give an audible alarm when the truck was
operated in reverse (Tr. 53). He confirmed that if the truck
were equipped with such an alarm, and simply did not function, he
would have cited a violation of section 77.410(a) (c), which
requires that such an alarm function (Tr. 53).
With regard to the clarity of the citation, the respondent's
counsel pointed out at the hearing that the statement on the face
of the citation that the truck "was not equipped with an automatic alarm that would give an audible alarm when the truck was
put in reverse" lends itself to different interpretations and
could be construed to mean that an alarm was on the truck, but
that it simply did not function.
Counsel asserted that it has
always been the respondent's ,impression that this was the case
(Tr. 54-55, 91).
I take note of counsel's statement that "we
don't have any evidence on that point," and he asserted that the
respondent's defense deals with the asserted "significant and
substantial" and "unwarrantable failure" findings made by the
inspector with respect to the violation (Tr. 82).
In its answer of July 24, 1990, the respondent suggests that
the cited truck may have been equipped with an alarm, but that it
was simply inoperative. The answer was filed by the respondent's
corporate president, Michael B. Mccort, and he asserts that it
was difficult to maintain backup alarms in proper working order
because of strong equipment vibrations and bumps inherent in
surface mining operations. Mr. Mccort stated that "we know that
the inspector had been informed by the operator of the piece of
equipment, on several citations, that the backup alarm was
working when he put the equipment in the dirt at the start of the
shift. The inspector choose (sic} not to make note of that."
However, Mr. Mccort did not testify in this case, and as noted
earlier, the respondent presented no testimony with respect to
the violation, nor did it present any evidence to support
Mr. McCort 1 s suggestions that backup alarms may be breaking or
malfunctioning because of broken wires due to any adverse working
conditions.
I also take note of Mr. McCort 1 s statement in his
11
answer that removing a piece of equipment from service for
backup
arm repairs is economically difficult."
In view of the foregoing, I conclude and find that the
petitioner has established a violation of section 77.410(a) (1),
by a preponderance of all of the credible and probative testimony
and evidence adduced in this case. Accordingly, the violation IS
AFFIRMED.

444

Fact of Violation
Section 104(d) (1) "S&S" Order No. 334014, January 4, 1990 (Docket
No. WEVA 90-180)
The respondent here is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1605(b), for inadequate service
brakes on the cited rock truck. The cited standard provides as
follows:
77.1605 Loading and haulage equipment;
installations.

§

*

*

*

*

*

*

*

(b) Mobile equipment shall be equipped with
adequate brakes, and all trucks and front-end loaders
shall also be equipped with parking brakes.
The inspector testified ~hat he observed the cited truck in
operation during the eourse of his inspection, and that since it
had been out of service when he conducted a prior inspection, he
decided to inspect it. He informed foreman Grover Riddle, who
was with him, that he would inspect the truck (Tr. 88). The
inspector then spoke with the driver and informed him that he
wanted to determine whether the brakes were adequate. The
inspector asked the driver to load his truck, and that after he
left the pit with his load, he was to tram up a steep incline on
the haulroad, and after reaching the top of the hill "knoll," he
was to apply his service brakes as he came down the roadway on
the other side. The inspector testified that he positioned
himself so that he could observe the truck, and when the truck
came down the hill, the driver could not stop the truck with the
service brakes and it rolled down into the hill 11 swag. 11 The
inspector confirmed that he then spoke with the driver, and the
driver informed him that the brakes would not hold or stop the
truck (Tr. 8 9 ) .
The inspector testified that it is difficult to determine
whether the service brakes on a truck are working by simply
examining and looking at the truck, and that for this reason, a
11 functional
test"
conducted on an inclined roadway where the
truck is used.
In his opinion, the phrase "shall be equipped
with adequate brakes" found in section 77.1604(b), means "that
this equipment would have brakes that will operate and stop coal
loading equipment with the size loads that it carries" (Tr. 90).
Since the truck service brakes would not stop the truck in
question on the inclined roadway, he believed that they were not
adequate within the meaning of the cited standard (Tr. 90).
The inspector confirmed that he simply observed the driver
in the truck, and that he (the inspector) did not try the brakes

445

(Tr. 92). The inspector confirmed that when he reinspected the
truck to abate the violation, he found that the brakes would hold
the truck after another similar "functional test." However, he
had no knowledge of any brake repairs and did not know what was
done to render them serviceable again (Tr. 129-131).
The inspector confirmed that there are no firm guidelines
for determining the adequacy of service brakes, and that any
determination in this regard must be based on "your experience
with the equipment" (Tr. 132). He further confirmed that he was
not in the truck with the driver at the time the test was conducted, and although he did not know whether the driver pressed
down on the brakes "easily" or "all the way, 11 he knew that he
applied the brakes because he could hear the brake air valve (Tr.
135). The inspector stated that he had confidence in what the
driver was doing, and that "I was confident by the test that I
gave on the truck that those brakes weren't good" (Tr. 138). He
confirmed that MSHA's policy does not permit an inspector to get
into a truck and try the brakes himself {Tr. 139), and that the
truck in question only has se~ting for one person (Tr. 144).
The inspector confirmed that he had no reason to question
the competence of the driver with respect to his ability to
inspect and drive the truck (Tr. 142). He stated that the driver
was seated in a normal position in the truck, and he did not
believe that it was difficult for him to apply the brakes (Tr.
142). He confirmed that the "functional test" which he conducted
by observing the driver operate the truck after instructing him
to apply the brakes, was an acceptable MSHA method that he has
regularly used (Tr. 145).
The inspector could not state precisely how fast the fully
loaded truck was traveling down the incline during the test, and
he stated that the truck 11 was free rolling all the way and
stopped in the swag" He didn't have any brakes on the truck"
(Tro 149)
He reiterated that he knew that the driver had
applied the brakes because he could hear the air valves and that
the truck did not stop and eventually came to a stop in the
bottom of the swag (Tr. 150).
o

The respondent argues that contrary to the cited truck
driver 9 s belief that the brakes "need corrected," the day shift
driver of that same truck listed the brakes as "OK" and that
neither driver refused to operate the vehicle or to take it out
of operation by nred tagging 11 it. The respondent concludes that
since the day shift driver found the truck "OK," this
from a competent driver that the brakes were adequate. The
respondent also concludes that its answers to petitioner's
interrogatories show that the brakes were indeed adequate.
The respondent takes the position that the test conducted by
the inspector in support of the violation was inappropriate and

446

flawed in that the inspector was not in the truck with the
driver, did not know whether the driver in fact fully depressed
the brake, and simply relied on what the driver had told him.
The respondent argues further that the inspector was speculating
that the brakes would not hold the truck, and was not acting on
his own personal knowledge, and made a subjective, rather than an
objective determination with respect to the adequacy of the
brakes. The respondent concludes that the cited standard sets no
objective standard for such a determination, that the petitioner
has failed to carry its burden of proof, and that its research
"has not turned up any reported cases on facts such as are
present here."
With regard to the respondent's answers to the interrogatories in question, I find nothing in those responses which may
serve as an evidentiary basis to support any conclusion that the
cited brake were adequate, and the respondent's conclusions in
this regard are rejected. The answers are simply denials and
assertions that the brakes were adequate "all circumstances
considered," that the driver:was experienced, and that "no
accident of such a speculative nature has occurred." Such
statements are hardly proof of the adequacy of the brakes.
Further, although the truck driver and foreman who was present
with the inspector when he conducted his test are readily identified by name, the respondent failed to call them as witnesses.
The respondent's conclusion that the foot brakes were
adequate because the day shift driver (Harold Roach) indicated on
his preshift safety check lists that they were "OK" and that
neither driver refused to operate the truck or to take it out of
service are rejected. The day shift driver, as well as the
driver who was driving the truck, did not testify in this case,
and the inspector's credible testimony that the truck would not
stopr and continued to roll freely when the driver applied the
brakes, stands unrebutted. The inspectores notes made at the
time of the inspection reflect that the service brakes would not
stop the truck when it started down the inclined portion of the
roadway where the inspector observed it (Exhibit G-4, pg. 6).
The respondent's arguments attacking the credibil
and
reliability of the 11 function test" conducted by the inspector in
support of the violation are not well taken and they are
rejected.
In a number of reported cases interpreting the meaning
of the term 11 adequate brakes," such determinations were made by
the inspectors through their inspections of the braking systems
where certain defects were noted, or by tests conducted on the
trucks by operating them on inclines to determine their braking
or stopping capability. These cases are discussed in my
January 15, 1988, decision in Highwire Incorporated, 10 FMSHRC 22
(January 1988), and a summary of these cases follow below.

447

In Concrete Materials, Inc., 2 FMSHRC 3105 (October 1980),
and Medusa Cement Company, 2 FMSHRC 819 (April 1980), Judge
Melick and Judge Cook affirmed violations for inadequate brakes
on haulage trucks based on tests conducted by the drivers by
driving the trucks on inclines to determine their braking and
stopping capability.
In the Medusa Cement case, an MSHA inspector defined the term "adequate" as "capable of stopping and
holding a loaded haul unit on any grade on the mine property."
Judge Cook found that the test conducted by the inspector and his
interpretation of the results obtained sufficiently established a
facie case for inadequate brakes.
In Minerals Exploration Company, 6 FMSHRC 329, 342 (February
1984), Judge Morris affirmed an "inadequate brake" violation
based on an inspector's observation that the cited water truck
was "pulling very hard to the right." Testimony by the operator's foreman reflected that the brakes on the truck had been
relined 2 weeks before the citation was issued.
In Turner Brothers, Inc."·· 6 FMSHRC 1219, 1259 (May 1984),
and 6 FMSHRC 2125, 2;13-4 (September 1984), I affirmed violations
of section 77.1605(b), for inadequate parking brakes on a coal
haulage truck and an endloader based on tests which consisted of
parking the equipment on an incline and setting the brakes to
determine whether they would hold.
In both instances, the brakes
would not hold the equipment, and I concluded that the brakes
were inadequate. Judge Melick made similar findings in another
.:..:::=-"==--=-"'-'="-=-'=:...L.--==·r case, 6 FMSHRC 1482, 1483 (June 1984).
In Wilmot Mining Company, 9 FMSHRC 684, 688 (April 1987),
the Commission affirmed a judge's finding of a violation of
77.1605(b), for inadequate defective brakes on a Terex
front-end loader which was involved in a fatal accident. The
j
us finding was based on evidence which indicated that the
brake master cylinder and an auxiliary brake cylinder were very
low
brake fluid, even though the brakelines, wheel cylinder
and hydraulic brake 1
were intact, i.g., they had not leaked
because of the accident. When tested at operating speed, the
loader would not stop
the normal expected distances.
the operator 1 s contention that the evidence did not
the judge 1 s finding as to the cause of the inadequacy of
the brakes, the Commission stated in pertinent part as follows at
9 FMSHRC 688~
To prove a violation of this standard, however, the
Secretary is not required to elaborate a complete
mechanical explanation of the inadequacy of the brakes.
A demonstrated inadequacy itself may be sufficient.
* * * Whatever the precise cause of the breaking
defect, the evidence amply supports the judge's finding
that the Terex was not "equipped with adequate brakes, 11
in violation of the cited standard (emphas
added).

448

I conclude and find that the unrebutted and credible testimony of the inspector, including the brake functional test which
was performed under his supervision and observation, and which I
find was reliable, proper, and reasonable in the circumstances,
establishes that the cited truck service brakes were inadequate
within the intent and scope of section 77.1605(b). While it is
true that section 77.1605(b), which requires trucks to be
equipped with adequate brakes has no specific requirement that
the brakes be serviceable, I conclude and find that any reasonable interpretation of the intent of this standard requires that
the brakes perform the function for which they are normally
designed when they are on the truck, namely to stop the truck
under normal operating conditions' when the brakes are applied.
Under the circumstances, I further conclude and find that the
petitioner has established a violation by a preponderance of the
evidence, and the violation IS AFFIRMED.
Fact of Violation
Section 104(d) (1) "S&S 11 Orde~ No. 3334015, January 4, 1990
(Docket No. WEVA 90-180)
The respondent here is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1605(b), for an inadequate parking
brake on the same truck which was cited for inadequate service
brakes. The cited standard required the truck to be equipped
with parking brakes.
The inspector testified that after completing his test
concerning the service brakes, and after the truck had come to a
stop in the roadway swag, he asked the driver to back the truck
up the incline and to put the truck in neutral gear and to apply
the park brakeso When he did, the parking brake would not hold
the truck and the truck 1irolled back off" (Tro 91). This test
was conducted more than once, and each time, the brake would not
hold the truck, and the driver informed him that the parking
brake would not hold the truck. The inspector's notes made on
January 4, 1990, reflect that the truck would not stop when the
parking brakes were applied (Exhibit G-4, pg. 7) o
As noted earlier, the respondent called no witnesses for any
testimony concerning any of the violations in these proceedings,
and the inspector's testimony stands unrebutted.
The respondent's arguments with respect to the inadequate parking brake
violation are the same as those advanced with regard to the
inadequate service brakes violation. The respondent argues that
section 77ol605(b) simply requires that a truck be equipped with
a parking brake, and does not require that such a brake be
adequate.
I have previously rejected identical arguments made in
connection with violations of section 77.1605(b).
See: Turner
Brothers, Inc., 6 FMSHRC 1219, 1253-154 (May 1984), where I

449

concluded and found that a reasonable application of this standard requires that a parking brake perform the function for which
it is intended, namely, to hold the truck against movement while
it is in a parking mode, regardless of where it is parked. See
also: Thompson Coal & Construction, Inc., 8 FMSHRC 1748, 1758
(November 1986), upholding a violation for a defective parking
brake on an end loader, where I stated as follows:
Although the language of the standard implies that
brakes other than parking brakes are to be adequate, I
believe the clear intent of the standard is to be
insure that all braking systems on such a piece of
equipment be maintained serviceable and functionable so
as to insure the margin of safety intended by the
installation of these braking systems.
Further, since
the standard is obviously intended for the protection
of the miners, any other interpretation would be contrary to the intent and purposes of the Act. * * * *
For the reasons stated in my findings and conclusions,
concerning the inadeq:1:1ate service brakes violations, which I
herein adopt and incorporate by reference, including my prior
decisions in Turner Brothers, Inc., and Thompson Coal & Construction, Inc., supra, with respect to the interpretation and application of section 77.1605(b), to a parking brake on a piece of
mobile equipment, the respondent's arguments in defense of the
violation are rejected. In the instant case, the credible and
unrebutted testimony of the inspector establishes that when the
parking brake on the cited truck was applied by the driver with
the truck stopped in neutral gear on an incline, the brake would
not hold or prevent the truck from moving or rolling. Under all
of these circumstances, I conclude and find that a violation has
been established by a preponderance of the evidence 1 and IT IS
AFFIRMED.
Significant and Substantial Violations
A 11 significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or heal th hazard. 11
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial nif, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).
In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission explained its interpretation of the term "significant
and substantial" as follows:

450

In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
1129,

In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
(August 1985), the Commission stated further as follows:
We have explained further that the third element
of the Mathies formula "requires that the Secretary
establish a reasonable likelihood that the hazard
contributed to will result in an event in which there
is an injury." U.S. Steel Mining Co., 6 FMSHRC 1834,
1836 (August 1984). We have emphasized that, in
accordance witht.he language of section 104(d) (1), it
is the contribution of a violation to the cause and
effect of a hazard that must be significant and substantial. U.S. Steel Mining Company, Inc., 6 FMSHRC
1866, 1868 (August 1984}; U.S. Steel Mining Company,
Inc., 6 FMSHRC 1573, 1574-75 (July 1984).

In Halfway, Incorporated, 8 FMSHRC 8 (January 1986}, the
Commission upheld a significant and substantial finding concerning a roof area which had not been supported with supplemental
support, and ruled that a reasonable likelihood of injury existed
despite the fact that miners were not directly exposed to the
hazard at the precise moment of the inspection.
In that case 1
the Commission stated as follows at 8 FMSHRC 12~
[T]he fact that a miner may not be directly exposed to
a safety hazard at the precise moment that an inspector
issues a citation is not determinative of whether a
reasonable likelihood for injury existed. The operative time frame for making that determination must take
into account not only the pendency of the violative
condition prior to the citation, but also continued
normal mining operations. National Gypsum, supra,
3 FMSHRC at 825; U.S. Steel Mining Co,, Inc., 6 FMSHRC
1573, 157 4 (July 1984) .
The respondent asserts that the inspector's "S&S'' findings
with respect to all of the violations "are rather incredible."
In support of its conclusion, the respondent argues that the
mining areas in question are remote, with little, if any, pedestrian traffic, and that the cited trucks are large and heavy

451

pieces of "off road" equipment that travel slowly. The respondent asserts that the miners are knowledgeable and experienced
workers who do not customarily come near the trucks or place
themselves at risk by going behind them. Under these circumstances, the respondent concludes that it is highly unlikely that
any miners would be careless around the trucks, and that any
accidents are highly unlikely. The respondent cites the testimony of the inspector who confirmed that there has never been an
accident or injury at the mine due to faulty brakes or the lack
of a backup alarm, and the inspector's confirmation of the fact
that the truck drivers are competent. The respondent also
produced a copy of a safety award issued by MSHA in 1988, for its
"Outstanding Safety Record" for a number of employee hours worked
without a lost workday injury (Exhibit R-B).
The respondent further argues that there was no indiscriminate foot travel near the cited trucks, and that except for
service personnel, everyone would be in their vehicles. The
respondent points out that the only time anyone would be near the
trucks on foot would be during the lunch hour, and it finds
"preposterous" and 11 incredible,'' the inspector's belief that
miners or service personnel would be eating their lunch behind a
truck while it was idling or that a driver would get in the truck
and drive it in reverse during this time. The respondent concludes that the inspector•s belief that an injury would result
from the cited brake conditions is speculative and that the
inspector admitted that "This is not a normal thing, but it can
happen" (Tr. 92).
Backup Alarm Violation (Citation No. 3334094)
The inspector's unrebutted and credible testimony reflects
that at the time of his inspection, two rock trucks, a backhoe,
dozers, and scrapers were working in the p
where the cited
truck was operating and that the backhoe was loading the trucks
with fill material which would be hauled out to another area.
The inspector described the pit area as "small and congested, 11
and he indicated that one truck had to wait on a ramp outside the
pit while another one was being loaded in the
He confirmed
that during the course of a shift, the cited truck would be
backed up non numerous occasions" (Tr. 24, 28, 36). He stated
that a backup alarm emits a 11 loud, piercing-type alarm, 11 that
anyone hearing it would "automatically know something is backing
up, 11 and that the intent of an alarm is to prevent an accident in
the pit area where the truck is working in close proximity of
other equipment (Tr. 60, 63). The inspector confirmed that he
has operated the same type of truck which he c
, and he stated
that while one can see to either side of the truck through the
rear view mirrors, the driver's view to the rear would be
obscured and he cannot see directly behind him for any long
distance (Tr. 31).

452

The inspector confirmed that when he was inspecting the
backhoe during the lunch hour, he observed service personnel, and
dozer and backhoe operators on foot, but he could not recall
whether any of the trucks were in operation at that time (Tr.
25). He further confirmed that with the exception of service
personnel and the other equipment operators, who would be on foot
during the lunch hour, any other miners in the pit area would be
in their vehicles (Tr. 50). The inspector expressed his concern
with the people who would congregate for lunch near the truck,
particularly since the truck was usually the last piece of
equipment to come into the pit and park during the lunch hour.
He indicated that the truck driver, would either pull into the
area where the miners were eating their lunch, or would back the
truck up to park (Tr. 27-28). Although the inspector agreed that
the people having lunch would see the truck coming into the area
if they were looking at it, it was possible they would not see it
if there was a lot of noise and they were not looking at it (Tr.
51) . The inspector believed that any miners who may be in the
proximity of the truck during the lunch hour could be run over if
the driver, who sometimes leaves the engine running while having
lunch, were to pull out and run over them (Tr. 63-65).
Aside from any hazard exposure to the miners having lunch,
the inspector believed that the greater hazard associated with
the absence of a backup alarm on the cited truck was in regard to
service personnel who would be greasing, fueling, or otherwise
servicing the truck in the pit. He confirmed that service
personnel usually are on foot next to their own vehicles when
they signal the truck driver to either pull in or back in for
servicing, and he indicated that they may not be paying attention
to the truck or the driver, but would have their attention on the
truck while it was being serviced (Tr. 24, 28, 52). The inspector also confirmed that during the hauling and loading cycle in
the pit areas? which he has observed, trucks regularly backed
into position next to the backhoes and dozers while loading and
dumping, and the equipment operators are usually on foot when the
trucks are being positioned, or they may be on foot preparing to
go to lunch (Tr. 23-24; 62).
The inspector further testified that in the course of normal
mining operat
, he has observed smaller vehicles operating in
the pit, including a pickup used by the foreman who is regularly
in and out of the pit, and small trucks used by the personnel who
service the larger trucks. He confirmed that he has observed
these smaller vehicles operating in the pit 11 a lot of times in
and around these trucks 11 (Tr. 29-30). He believed that these
smaller vehicles would be exposed to a hazard if they pulled in
behind a truck and were not paying attention to it, or did not
know whether the truck was preparing to move. The inspector
believed that any injury to someone on foot or in a smaller
vehicle which may be run over by a large rock truck "tends to be
a fatal type injury" (Tr. 32). A rock truck backing over a

453

dozer, which is equipped with a protective canopy, would likely
result in a ''lost time accident rather than a fatality (Tr. 33).
Although the inspector agreed that the equipment operators
working in the pit area, including the truck driver, were
well-trained and competent operators, he confirmed that he was
aware of two fatal accidents at other mining operations in his
district.
In one incident, a dozer operator backed up behind a
coal truck and was run over and killed when he left his dozer and
the truck backed over him.
In the second, incident, a rock truck
similar to the one he cited backed over a small pickup and killed
the individual who was in it (Tr. 34-35). No testimony was
forthcoming from the inspector as to whether or not the trucks
involved in these incidents were equipped with backup alarms.
The inspector believed that it was reasonable to expect that
the cited truck, which operated in the small and congested pit
area where other equipment was also operated, could back over
someone if they failed to hear the backup alarm (Tr. 22). Taking
into consideration the congested pit area where the truck and
other equipment would-be operating, the presence of foot traffic
and other smaller vehicles, and the hazard exposure which would
be present in the absence of a backup alarm, the inspector
concluded that it was reasonable to expect "that some time or
other this truck would back over someone that wasn't aware that
it was backing up because it had no alarm on it" (Tr. 32).
After careful consideration of the testimony of the inspector with respect to the hazard associated with the miners who
were on foot in the pit area during their lunch break, I cannot
conclude that there was a reasonable likelihood of an accident or
injury with respect to these individuals.
The inspectors conclusions that an accident or injury was reasonably likely in this
scenario was based on a number of speculative variable, including
the possibility that the miners would not see the truck if they
were not looking at it, particularly if there were a lot of
noise, and the possibility of the truck driver pulling out after
completing his lunch and running over the other miners eating
their lunch. There
no evidence as to the source of the
~ 1 no
vu alluded to by the inspector, and since the equipment
would be idle while the operators were eating lunch, the only
other possible noise source would be the truck pulling into the
area.
I have difficulty believing that the miners having lunch
would not see the truck or would deliberately place themselves at
risk by eating their lunch in close proximity to a truck with its
eng
running while it was parked or while it was backing in.
I conclude and find that the credible and unrebutted testimony of the inspector establishes that during a normal working
shift before and after the lunch hour, the dozer and backhoe
operators, as well as service personnel servicing the truck,
would at various times be on foot in close proximity of the rock

454

truck which would be backing in for loading and dumping, and
possibly for servicing.
In the context of continuing mining
operations, and in the absence of a backup alarm to alert or warn
these individuals that the truck was backing up, particularly in
a situation where the truck is operating in a small and congested
pit area, and where the truck driver•s view to the rear of the
truck is obstructed because of the size of the truck, I believe
that one may conclude that it would reasonably be likely that a
serious injury or accident would result if the truck were to
strike a dozer, backhoe, or the equipment operators on foot in
close proximity to the truck.
I further conclude and find that
the inspector's conclusion that the violation was significant and
substantial was proper and reasonable in the circumstances
presented, and his finding in this regard IS AFFIRMED.
Service Brakes Violation (Order No. 3334014)
The inspector testified that the inclined haulroad where thn
truck operates was elevated approximately 45 to 50 feet from the
bottom of the pit on the left~hand side of the road at an estimated grade of 7 to 10 percent. · ~e stated that after a truck
travels over the high knoll and proceeds down the roadway into
the swag, the road intersects at that point with another approach
road to the pit where there is "cross traffic" consisting of
other equipment and other rock trucks. The haulroad is not wide
enough to permit trucks to pass at all locations, and the intersection at the approach road is a "blind area" where one truck
would have to stop in order to see another truck coming down the
inclined roadway. Any equipment or personnel going into the pit
area would use the approach road, and the "blind area" would be
"more or less 100 feet" from the intersection (Tr. 94-97).
The inspector estimated that a loaded rock truck would be
traveling 15 to 20 miles an hour down the inclined roadway, and
that any traffic approaching the intersection would be traveling
20 miles an hour.
In addition to the rock trucks using the
roadway, the inspector stated that dozers, scrapers, and service
personnel and foremen would be working in the approach road area
or would be using that road at different times, and they would be
exposed to a collision hazard as a result of inadequate service
brakes on the cited truck in question (Tr. 98-100). The inspector also believed that the truck would be at risk when it was in
the pit fill area while the driver was attempting to get as close
to the edge of the fill as he can to dump, and although there is
a berm at that location, if the driver cannot stop because he has
no brakes, he could back over the edge of the fill (Tr. 100).
Further, although the roadway is bermed with 40 to 50 inch berms,
if the driver were to get into the berm he could go through it
because a berm is only intended to retain a vehicle, and it is
not high enough to prevent a loaded truck from going through it
(Tr. 100-101).

455

The inspector confirmed that the service brakes were the
only means of stopping the truck, and that the transmission
retarders are not used (Tr. 101). In view of the weight and size
of the truck, and the speed at which it would be traveling, it
was his judgment that any truck collision would probably result
in a fatality to anyone struck by the truck (Tr. 102).
Based on the credible and unrebutted testimony of the
inspector, I conclude and find that the lack of adequate brakes
capable of stopping the cited truck on the inclined portion of
the roadway where it would normally travel in the course of a
working shift presented a reasonable likelihood of an accident
which would reasonably and likely be expected to result in
injuries to the driver as well as to the other equipment operators and mine personnel exposed to such a hazard. The evidence
establishes that the truck driver would be at risk if he were to
travel over the edge of the pit fill area where he normally
dumped his load if his brakes would not stop the truck, and he
would also be at risk if he were to leave the inclined portion of
the haulroad with a loaded t~µck and go through the berm.
Further, both the driver and the other equipment operators using
the pit approach road which intersected the haulroad on which the
truck would be traveling would be at risk in the event of any
collision resulting from the failure of the truck to stop because
of inadequate service brakes. Under all of these circumstances,
I conclude and find that the inspector's significant and substantial finding was reasonable in the circumstances presented, and
IT IS AFFIRMED.
Parking Brake Violation (Order No. 3334015)
The inspector testified that while it was not normal for a
truck driver to stop or park his truck on an inclined portion of
the haulroad 7 11 it happens lots of timen if the truck were to
break down or break a
shaft coming out of the p
(Tr. 92).
The inspector confirmed that the mine terrain before any pits are
developed is flat, but once the coal seam itself is developed,
the pits are inclined areas and trucks hauling in and out of the
pit area are operating in areas which are not level. He
cated that service work may be performed on the haulroad, but
that the trucks normal
load, travel, and dump from one end of
the p
to the other end of the pit where the fill area is
located {Tr. 67-68).
In his inspection notes of January 4, 1990, the inspector
noted that according to the driver of the cited truck, the truck
was usually parked in a dip area were
would not 11 roll off 11
(exhib
G-4, pgs. 7, 8). However, the inspector also noted that
"if for some reason the truck had to be parked elsewhere (maybe
catch on fire or break down) then there was not a brake to hold
it. This made it reasonable to expect an occurrence.
If the

456

truck did roll off the most severe injury that would occur would
be fatal. 11
The inspector testified that one of the reasons which
contributed to his "S&S" finding was the admission by the truck
driver that he knew the parking brake would not hold the truck
and that he had to find a "dip or low point" to park the truck so
that it would not roll off (Tr. 103). The inspector also testified that the truck is parked near the backhoe if that piece of
equipment is down for any reason, and that the truck is also
parked in a number of areas where it may be serviced, and when
the driver eats lunch. The transmission will not hold the truck
while it is parked, and the service brake is the only means of
holding the truck while it is parked (Tr. 103). If the truck
were parked in the pit area, service personnel and other equipment operators who may be parked behind the truck would be
exposed to a hazard if the truck were to roll. The inspector
stated that the only level area in the pit "is right on the
coal, 11 and that the pit entrances and exits are inclined (Tr.
105) .
The inspector suggested that a truck driver may leave his
vehicle parked unattended if he were to have a break down, or
that he may leave the truck to talk to people, or for some other
reason. He believed that a driver might park his truck in an
area that he believes
a low place, but that it may be slightly
inclined and the truck might roll back to a lower place. He
confirmed that he has observed a truck parked in a position where
it could roll off while it was being serviced (Tr. 106-110). The
inspector also believed that a truck parked in the area where
miners are eating their lunch could roll off and place these
miners at risk if they were down grade from the truck and the
truck was pointed in their direction (Tr. 111-112). However, the
inspector conceded that he did not observe any miners eating
within the "zone of danger 11 of the truck which he cited,
but he confirmed that he has observed this situation with other
rock trucks (Tr. 112). There is no evidence as to whether these
other trucks had any inadequate brakes, and the inspector conceded that the driver of the cited truck informed him that he
used special precautions as to where he parked the truck because
he knew the parking brake would not hold (Tr. 106).
The inspector testified that it would be reasonable to
expect that a fatality would occur if the truck were to roll off
while it was parked because 11 if this truck runs over a person,
it 1 s more than likely he will kill that person 11 (Tr. 116). The
inspector stated that the driver finds what he thinks
a low
spot and stops the truck and that "if he is right,
will sit
there, and if he's wrong, it will move" (Tr. 116). He believed
that it would be reasonably expected that a truck would roll off

457

in the pit area where there are not many actual level spots (Tr.
116). The inspector confirmed that the mine has never experienced any accident or injuries because of any inadequate making
brakes or service brakes, and that based on the history of any
such incidents at the mine in question, no accidents have
occurred (Tr. 141). The inspector also confirmed that he had no
reason to question the driver's competency to inspect or operate
the cited truck (Tr. 142).
After careful consideration of all of the testimony of the
inspector, which stands unrebutted, I conclude and find that his
determination that the violation was significant and substantial
is correct. Although the inspector had no reason to question the
driver's competency to drive or inspect the truck, I have serious
reservations about the competency of a driver who would consciously operate a truck knowing that the parking brake (and
service brakes) were inadequate. Although the driver indicated
to the inspector that he normally does not park on an incline,
and took special precautions in this case because the brakes
would not hold, the fact remq,ins that in the normal course of
business, the drive:i::--would be traveling down an inclined roadway
with inadequate parking brakes, as well as inadequate service
brakes, and would likely place himself and others at risk.
There
no evidence to establish whether or not the area
where the truck was parked during the lunch hour was inclined or
level, and I
no reasonable basis for any conclusion that
those miners were exposed to any hazard.
Indeed, the inspector
conceded that these miners were not within the ''zone of danger."
However, the inspector's testimony establishes that most of the
pit areas where the truck would be stopped for servicing, or
while loading and dumping, were inclined and not level, and he
confirmed that he has personally observed trucks parked in a
position where they could roll off and injure someone. Further,
while it may be true that a truck may not normally be serviced on
an inclined haulroad, in the event of an emergency or a breakdown
on the inclined portion of the haulroad, the lack of an adequate
parking brake, which was the only means of holding the truck
while it was stopped or parked, would
the driver, and
possibly other
drivers who used the haulroad, at risk.
Further if the truck were parked or stopped in an inclined pit
area in close proximity of other servicing and operational
equipment,
could roll off and collide with such equipment.
Under all of these circumstances, I conclude and find that this
violation was significant and substantial, and the inspector 1 s
finding IS AFFIRMED"
The Unwarrantable Failure Issues
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided

458

under the 1969 Act, and it held in pertinent part as follows at
7 IBMA 295-96:
In light of the foregoing, we hold that an inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several subsequent decisions concerning the interpretation and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of
the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December
1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December
1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC
249 (March 1988). Referring to its prior holding in the Emery
Mining case, the Commission stated as follows in Youghiogheny &
Ohio, at 9 FMSHRC 2010:
We stated that whereas negligence is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable
ilure sanctions assume their intended
distinct place in the Act's enforcement scheme.
In Emerv Mining, the Commission explained the meaning of the
phrase 11 unwarrantable failure" as follows at 9 FMSHRC 2001:
We first determine the ordinary meaning of the
phrase iuunwarrantable failure. H 11 Unwarrantablen
defined as nnot justifiable" or vvinexcusable. 11 11 Failuren is defined as "neglect of an assigned, expected,
or appropriate action. 11 Webster 1 s Third New International Dictionary (Unabridged) 2514, 814 (1971)
1
11
( 11 Webster s
),
Comparatively, negligence is the
failure to use such care as a reasonably prudent and
careful person would use and is characterized by
"inadvertence," "thoughtlessness," and "inattention."
Black's Law Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *

459

Backup Alarm Violation
The respondent argues that there is no proof of any unwarrantable failure in that the cited backup alarm was not proven to
have been listed as broken or absent, and it is not known how
long it was not in compliance--if at all. The petitioner argues
that the circumstances presented indicates that the respondent
displayed a high degree of negligence amounting to aggravated
conduct in allowing the violation to occur.
In support of this
conclusion, the petitioner points out that on November 16, 1990
(sic), the inspector discussed the requirements of section
77.410(a) (1) with mine management and indicated his concern with
the respondent's previous compliance with this standard, as
reflected in its history of prior violations, and instructed the
respondent that it needed to take affirmative steps to improve
its compliance with this standard.
I take note of the fact that
the violation in question was issued on December 4, 1989, and
considering the petitioner's assertion that only "days later"
after the inspector spoke with management, the respondent permitted the truck to be operated without a backup alarm, the petitioner's statement that the inspector spoke to management on
November 16, 1990, appears to be a clerical error.
The petitioner further argues that the situation presented
is not one in which the alarm was present, and simply failed to
function for mechanical reasons.
Petitioner points out that the
alarm, which should have been situated on the rear of the truck,
in plain sight, was simply not there, and that the truck was
operated for at least 6 hours on the day in question under
conditions which should have made the violation obvious to
everyone in the area.
The inspector testified that his review of the "mine file"
prior to his inspection reflected that the respondent had previously been cited 10 times over an 8-month period vv for this
condition 1u (Tro 36) o His inspection notes confirm that he
reviewed the history of prior violations, and found 10 prior
citations of section 770410, and he noted that "violations of
770410 should be unwarrantable based on this history'' (Exhibit
G-1)
The inspector testified that based on this history, he
concluded that the respondent had failed to make an effort or
take steps to develop and implement an equipment inspection
program to preclude such violationso He stated that the history
11
exhibits what we call aggravated conduct on their part and we
determined it to be unwarrantable conduct" (Tr. 36) o
o

The inspector confirmed that he had a pre-inspection conference with the two representatives of mine management when he
started his inspection on November 16, 1989, and that he discussed the respondent's safety program and the examination of its
equipment, and pointed out that the respondent had received the
10 prior citations. The inspector confirmed that he advised

460

management that "if a condition did exist, it was an unwarrantable type condition," and that if a safety program was not
developed any future citations "would have to be unwarrantable"
(Tr. 16, 44-45). The inspector testified that when he began his
inspection in November, the respondent did not have a safety
program posted, but that a copy was found by the superintendent
and it was then posted. The superintendent informed him that
copies of the program were distributed to the employees with
their pay checks, but the inspector indicated that he never saw
the checks or the safety statements (Tr. 45).
The inspector further testified that any safety program
should include some instructions or meetings with the equipment
operators "to let them know when they have a problem" (Tr. 46).
He confirmed that management informed him that safety meetings
were held, and he confirmed that a safety program which was in
booklet form, and which the respondent had "for a long period of
time," was in fact posted (Tr. 47). The inspector confirmed that
he never attended any safety meetings, and was unaware of any
written materials concerning section 77.410, but he conceded that
safety meetings may have been,held (Tr. 47). He further confirmed that foreman C6nner informed him that there were a lot of
equipment breakdowns and repairs to be made and that he tried to
"fix these things when they occurred on a priority basis" (Tr.
49). Although the inspector indicated that he was unaware of any
retraining for the equipment operators with respect to section
77.410, he confirmed that they were well trained and competent
equipment operators (Tr. 47, 50).
The inspector confirmed that the respondent utilizes the
equipment operators to conduct the preshift of the equipment, and
he agreed that if an operator does not inform management of any
condition that needs attention, or does not record it, management
would be unaware of it unless it were verbally communicated by
the operator (Tro 55-56)
However, the inspector believed that
the lack of a backup alarm should have been obvious to the
backhoe and dozer operators working the pit, and that the working
shift had been in operation for 6-hours prior to his inspection
of the truck. He could not recall where the foreman was located
on the day in question (Tr. 38).
o

The inspector confirmed that in the case of an alarm which
may have been rendered inoperative because of a loose or pulled
wire, he attempts to ascertain what may have happened. However,
in the instant case, since he did not find any alarm on the
truck, he could not recall any conversation with the foreman or
the driver explaining the absence of the alarm (Tr. 70). He
confirmed that the driver is required to examine his equipment
before he operates it, and is required to fill out a preinspection safety checklist. However, in this case, he was not
sure that the driver filled one out, and the foreman could not
find one which is normally placed in his mailbox. The inspector

461

stated that the checklists filled out by the equipment operator
at the start of his shift is placed in the box to be picked up at
the end of the shift (Tr. 70-71). He also confirmed that this
checklist system used by the respondent is required by state law
(Tr. 72) .
The inspector stated that section 77.404(a) requires the
removal of unsafe equipment from operation, and that section
77.1606(c) requires the inspection of equipment for defects, and
the recording of needed repairs. However, he did not cite the
truck in question with any of these violations, but did cite some
other pieces of equipment (Tr. 73).
The 10 previously issued section 77.410, citations reflects
that they were all issued as section 104(a) citations. Six of
the citations were "S&S," and they were issued at least 1 year
earlier than the contested citation in this case.
Four were
non-"S&S" and were issued 7-months prior to the contested citation. The remaining violations for other standards were all
issued as section 104(a) citations. This record does not reflect
a history of unwarra~table failure violations.
The inspector confirmed that the respondent has approximately 20 pieces of mobile equipment on the day shift that are
required to be equipped with backup alarms, and he considered the
previously issued 10 citations for violations of section 77.410,
over an 8-month period to be "unusually high" (Tr. 42-43).
However, copies of these prior citations were not produced by the
petitioner, and the conditions which resulted from those violations are not known, and there were is no evidence that any of
these prior citations involved rock trucks. Absent such information, I am unable to determine whether or not the previously
cited conditions resulted from the absence of a backup alarm, or
whether the alarms were on the equipment, and simply did not
function for some reason.
In the context of negligence, such
information would be relevant in determining whether or not the
respondent totally ignored the requirement for installing backup
alarms on its mobile equipment, or whether the alarms were
installed, but failed to sound because of any adverse working
conditions or unforeseen mechanical malfunctions.
On the facts of this case, I cannot conclude that the
evidence presented by the petitioner establishes that the violation was an unwarrantable failure.
Although the foreman and
driver were both present, there is no evidence that the inspector
made an attempt to ascertain why the alarm was missing, or the
duration of its absence. Aside from the absence of any daily
preshift report, which is apparently turned in by the driver at
the end of the shift, there is no evidence that the inspector
made any attempt to review any prior reports to determine whether
or not the missing alarm had ever been reported, and there is no
evidence that the driver was aware of the fact that the alarm was

462

missing, or whether he had reported it to the foreman.
While it
may be true that the absence of the alarm should have been noted
during the course of the shift, the inspector apparently made no
effort to interview any of the other equipment operators who may
have been working in proximity of the truck while it was in the
pit, and there is no evidence to establish that management was
aware of the condition.
Notwithstanding the petitioner's arguments to the contrary
during the course of the hearing, on the facts of this case, I
believe that the inspector was strongly influenced by the fact
that the respondent had been previously cited for violations of
section 77.410.
I further believe that the inspector's finding
of unwarrantable failure borders on a per se finding based on
prior history.
In my view, unwarrantable failure and negligence
are distinct concepts, and the application of prior history to
these determinations must be considered in context, and not in
the abstract. Although prior history may be relevant in any
finding of unwarrantable failure or the degree of negligence,
Youghiogheny & Ohio Coal Company, supra, at 9 FMSHRC 2011, I
believe it is but one ingredient which may be considered, but it
is not the sole determining factor.
I reject any notion that
simply because a mine operator has been previously cited for a
violation of a mandatory standard, he may at some future time be
considered per se guilty of "aggravated conduct" for any repeat
violations, regardless of the time frames or the facts and the
circumstances associated with those prior violations.
As noted earlier, the prior section 77.410 citations were
issued 7 months or a year prior to the contested citation in this
case, and the facts and circumstances surrounding the issuance of
those citations are not in evidence. There is no evidence that
any of those prior violations involved circumstances similar to
those which were present in this case.
I find no credible evidentiary support for the inspector 1 s
belief that the respondent had no safety program, held no safety
meetings or discussions with its equipment operators, and that
the operators were not retrained. The inspector himself confirmed that the respondent had a long standing and posted safety
program and that the equipment operators were well-trained and
competent. The unrebutted testimony of the respondent's only
witness reflects that the respondent has a safety program, that
its preshift inspection system was in compliance with state law,
and that MSHA had bestowed a safety award on the company for an
accident free safety record. With regard to the asserted lack of
safety meetings, the petitioner simply has not met its burden of
proving that safety meetings were not held, and the inspector
apparently spoke to no equipment operators or other mine personnel in this regard.

463

I find no credible or probative evidence of aggravated
conduct by the respondent in connection with this violation, and
I conclude and find that the petitioner has failed to establish
an unwarrantable failure violation. To the contrary, I conclude
and find that the violation resulted from mine management's
inattention and failure to exercise reasonable care. Under the
circumstances, the inspector's unwarrantable failure finding IS
VACATED, and the section 104(d) (1) citation which he issued IS
MODIFIED to a section 104(a) citation with significant and
substantial findings, and as modified, the citation IS AFFIRMED.
Service and Parking Brake Violations
The respondent argues that the day shift truck operator
repeatedly listed the brakes "OK," and that it is uncontested
that the respondent had made extensive repairs and maintenance on
the equipment in December, 1989, and that only minor adjustments
were made after the violation was issued (exhibits R-1 and G-8).
Under these circumstances, the respondent concludes that the
truck was not neglected. The respondent also relies on my bench
comments concerning the prior backup alarm citation, and whether
or not a history of 10 prior citations may or may not support an
unwarrantable failure violation (Tr. 76), in support of its
argument concerning the cited brake conditions in this case.
The petitioner points out that section 77.1606(a) requires
the inspection of haulage equipment by a competent person before
the equipment is used, and that any equipment defects affecting
safety must be recorded and reported to the mine operator.
Section 77.1606(c) requires that all equipment defects affects
safety be corrected before the equipment is used. The petitioner
argues that the respondent selected truck driver Harold Johnson
to inspect the truck in question, and that on January 2, 3, and
4, 1990 1 Mr, Johnson reported defects in both the service brakes
and the parking brakes in his preshift examination reports
(exhibit G-7),
Since the reports are signed by foreman Grover
Riddle, the petitioner concludes that mine management had actual
knowledge of the defects, but took no action to correct the
defects before the truck was used again.
In response to the respondent 1 s contention during the
hearing that there is no proof that a defect affecting safety was
reported because the form filled out by Mr. Johnson merely
indicates thc.t the parking and service brakes "need corrected,"
the petitioner argues that the form provides space for equipment
operators to remark on 11 any other mechanical or safety defects, 11
and that the plain meaning of this language is that this space
used to remark on mechanical or safety defects
than those
already listed on the form.
The petitioner points out that the
form is one which is used by the respondent to record and report
safety defects as required by section 77.1606(a), and it concludes that when taken as a whole, the part which was filled out

464

by Mr. Johnson is intended to be used for the reporting of safety
defects.
The "narrative findings" of the special assessment officer
who assessed both of the brake violations, which are included as
part of the pleadings filed by the petitioner, contain statements
that "numerous citations have been issued during previous inspections at this mine for failure to maintain adequate service
brakes and adequate parking brakes on mobile equipment."
Two memorandums dated March 6, 1990, from MSHA's district
manager to the director of the Office of Assessments, state as
follows:
Operating unsafe defective equipment at this mine
appears to be normal and allowed by the operator. MSHA
inspectors have is~ued numerous citations for these
conditions in the past and the operator has not initiated any corrective action to assure adequate brakes
(and adequate parking brakes) are maintained on the
equipment; therefore, an ,extraordinarily high degree of
negligence was determined.
The petitioner's assertions that the cited brake violations
were repetitious and that "numerous citations" have been issued
at the mine for failure to maintain adequate service brakes and
parking brakes are unsupported by any credible evidence and I
have given it no weight. Aside from the fact that the petitioner
produced none of the prior citations, the computer print-out
reflecting the respondent's history of prior violations, submitted in WEVA 90-160, reflects no prior citations for violations
of section 77.1605(b). Although the parties stipulated in WEVA
90-180, that the respondent has a "moderate history of prior
violations 11 consisting of 43 assessed violations, no further
information or evidence was forthcoming with respect to those
violations"
Further, the "assessed violations 11 history served on
the respondent by the petitioner during discovery simply list the
total number of assessed violations issued during 1987 through
1989 1 and it does not include a breakdown of those violations.
After careful review of all of the evidence and testimony
adduced in this case, the only support that I can find for the
inspector~s unwarrantable failure findings lies in the equipment
safety check lists signed by truck driver Johnson and countersigned by foreman Riddle.
The inspector testified that when he
spoke with Mr. Johnson on January 4, he informed him that the
brakes were not working that day, as well as the previous two
shifts, and that he had reported this on his checklists for all
of these days (Tr. 127-128). The inspector's notes for
January 4, reflect the following notation with respect to his
conversation with Mr. Johnson:
"When asked how long this condition had existed he said several shifts, specifically 1/4/90 and

465

the two preceding shifts. He said he had reported it each day on
the check list" (Exhibit G-1, pg. 7). With respect to the
preshift report of January 4, 1990, which Mr. Johnson showed to
the inspector, the inspector's notes contain the following
notation:
"The condition was on the preshift check list and the
company knew about it" (Exhibit G-1, pg. 9).
The inspector confirmed that he discussed the brake conditions with foreman Riddle on January 4, but he could not recall
the specifics of that conversation. With regard to the daily
examination record books, the inspector's notes contain the
following notations:
"When Grover Riddle was asked to show the
daily examination record book he did not have one. He said the
book was in Jack Wilfong's truck which was not at the mine and he
did not have any other book at the mine" (Exhibit G-1, pg. 10).
The notes reflect that the inspector issued a citation, and I
assume it was for not having the examination book at the mine.
The inspector confirmed that he did not speak with the day
shift truck driver Roach, and that he did not see the safety
check list reports filled out by Mr. Roach, or the check lists
filled out by Mr. Johnson for January 2 and 3, until the hearing
in this case. Even if he had seen them, they would not have
changed his mine because he was confident that the truck tests
indicated that "those brakes weren't good'' (Tr. 137-138).
The inspector further confirmed that M~. Riddle informed him
that superintendent Wilfong picked up the checklists from the
mailbox and took them with him when he left the mine on the
evening of January 4, (Tr. 152). The inspector explained that
except for the January 4, check list which Mr. Johnson showed him
that day, and since the other reports were not at the mine, he
did not at that time know that Mr. Riddle had countersigned the
previous reports and had no reason for discussing them with him.
With regard to Mr" Johnson°s January 4, check list report, the
inspector stated that Mr" Johnson produced it that same day and
that Mr. Riddle signed it at the time it was produced by
Mr. Johnson (Tr. 154). The inspector confirmed that Mr. Riddle
then informed him that he was not aware that the brakes would not
hold the truck on the hill, but that he did not discuss with
Mr. Riddle the reasons for his failure to do anything about it
earlier (Tr. 154)"
The record reflects that the day shift driver Roach marked
his check lists for January 2, 3, and 4, 1990, "OK" in the spaces
provided for reporting the condition of the service brakes and
parking brakes, and that evening shift driver Johnson marked each
of his lists for those same days "Needs Corrected" (Tr. 119-122)"
In explaining the contradictory reports made by the two drivers
of the same truck, the inspector stated "some operators just
won't report that stuff, some will. That's the reason" (Tr.
122). With regard to the earlier backup alarm violation, the

466

inspector suggested that an equipment operator may not report a
defective condition because there may not be an extra truck for
him to drive, and if he were unable to do any work, he would be
sent home (Tr. 106-107).
The evidence in this case reflects that the safety check
list system used by the respondent required the equipment operator to check his equipment and to fill out the form at the
beginning of his shift and to turn it in at the end of the shift.
With regard to Mr. Johnson's check list for January 4, 1990, it
would appear from the inspector's testimony that Mr. Johnson
produced this report before his shift ended and after the inspector asked about it, and that Mr. Riddle signed it immediately.
Under these circumstances, insofar as that day is concerned, I
cannot conclude that Mr. Riddle had prior knowledge that
Mr. Johnson had checked the brake conditions as "Needs
Corrected."
With regard to the check lists signed by Mr. Johnson on
January 2 and 3, 1990, they are both countersigned by Mr. Riddle,
and they were received in evid.ence without objection. Absent any
evidence to the contrary, and based on the unrebutted testimony
of the inspector, I conclude and find that Mr. Johnson submitted
these reports to mine management and that foreman Riddle, for at
least two working shifts prior to the inspection, knew or should
have known that the service and parking brakes needed attention,
or "Needs Corrected," as that phrase appears on the face of the
forms.
Under these circumstances, and as the responsible foreman, Mr. Riddle had a duty to at least inquire further as to the
condition of the brakes, or to otherwise take corrective action
to insure that the brake conditions which had been reported to
him over a 2-day period were taken care of. Although a maintenance work report reflects that some work had been done on the
cited truck on January 2 and 3, 1990 (Exhibit G-8), I find
nothing on that report to establish that any brake work was done
on those days"
The fact that day shift driver Roach marked his safety check
lists "OK" for the two prior shifts of January 2 and 3, 1990, is
in my view irrelevant to the question of foreman Riddle's prior
knowledge of the brake conditions as reported by Mr. Johnson.
Mr. Roach and Mr. Riddle worked on different shifts, and
Mr. Roach's check lists are countersigned by superintendent
Wilfong, and not Mr. Riddle. Under the circumstances, there is a
strong presumption that Mr. Riddle had no knowledge that
Mr. Roach found the truck brakes "OK, 11 and any suggestion by the
respondent that it relied on Mr. Roach's "OK" assessment of the
brake conditions, or that this excuses Mr. Riddle's failure to
act, is rejected.
Insofar as Mr. Riddle is concerned, I conclude
and find that his failure to act after he knew that the truck
brakes in question needed attention was inexcusable and constituted a lack of due diligence to follow up on some potentially

467

hazardous brake conditions which he knew or should have known
existed for at least two shifts prior to the inspection of
January 4, 1990.
I further conclude and find that Mr. Riddle's
failure to take any action constitutes aggravated conduct with
respect to both brake violations. Under the circumstances, the
inspector's unwarrantable failure findings with regard to the
service brakes and parking brake violations ARE AFFIRMED.
The Unwarrantable Failure "Chain"
In its posthearing brief, the respondent argued that the
petitioner failed to prove the section 104(d) "chain" as to all
three violations. Section 104(d) (1) of the Act authorizes an
inspector to issue an unwarrantable failure citation if he finds
a violation of any mandatory safety standard which does not
constitute an imminent danger, but does involve conditions which
the inspector believes are significant and substantial and which
he believes resulted from an unwarrantable failure by the mine
operator to comply with the requirements of the cited standard.
Section 104(d) (1) further authorizes the inspector to issue an
unwarrantable failurs= order'if, during the same inspection, or
any subsequent inspection conducted within 90 days after the
issuance of the initial unwarrantable failure citation, he finds
another violation of any mandatory safety standard which he
believes was also caused by an unwarrantable failure by the
operator to comply.
The record in this case reflects that the section 104(d) (1)
unwarrantable failure citation issued by the inspector was issued
on December 4, 1989. The two unwarrantable failure orders were
subsequently issued by the inspector 30 days later on January 4,
1990, and in each instance the inspector noted on the face of the
orders that they were based on the previously issued underlying
section 104(d) (1) citation. The inspector's unrebutted and
testimony establishes that there were no intervening
:nc1ean• 1 inspections, that ngo days did not go by without another
order" The 90 day period has to elapse before you get off that
chain. 11 Under all of these circumstances, I conclude and find
that the citation and orders issued by the inspector were procecorrectF and that all of the 11 chain 11 requirements found
the Act for the issuance of such citations were followed by
the inspector" However, in view of my vacation and modification
of the initial underlying section 104(d) (1) citation rel
on by
the inspector to support his subsequently issued section
104(d) (1) orders, those orders ARE MODIFIED to section 104(d) (1)
citations, with 11 8&8 11 findings, and as modified, they ARE
AFFIRMED.

468

History of Prior Violations
The parties have stipulated that the respondent has a
moderate history of prior violations and I have taken this into
account in these proceedings.
Size of Business and Effect of Civil Penalty Assessments on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a moderate
size mine operator. Although the respondent's
secretary/treasurer Gomer believed that payment of the proposed
civil penalty assessments will affect the "viability" of the
company, he conceded that it would probably not put it out of
business. Although the financial balance sheets produced by
Mr. Gomer show an accrued loss, the accompanying letter by the
C.P.A. who prepared the.reports contains a disclaimer with
respect to any opinion concerning the financial statements taken
as a whole, and the respondent has not produced any tax returns
or net worth statements relative to its current financial condition.
In the absence of any ±:urther credible evidence to the
contrary, I cannot c9nclude that payment of the civil penalty
assessments which I have made for the violations which have been
affirmed will adversely affect the respondent's ability to
continue in business.
Negligence
On the basis of my unwarrantable failure findings and
conclusions with respect to the two brake violations, I conclude
and find that these violations resulted from a high degree of
negligence on the part of the respondent, and the inspector's
findings in this regard are affirmed. With regard to the backup
alarm violation 1 I conclude and find that the violation resulted
from the respondent 1 s failure to exercise reasonable care, and
that this constitutes ordinary and moderate negligence.
Gravity
In view of my "significant and substantial" (S&S) findings,
I conclude and find that all of the violations which have been
affirmed were serious.
Good Faith Compliance
The parties stipulated that the violations were timely
abated by the respondent, and I have taken this into consideration in these proceedings.

469

civil Penalty Assessments
On the bas
of the foregoing findings and conclusions, and
taking into account the six statutory civil penalty assessment
criteria found in section llO(i) of the Act, I conclude and find
that the following civil penalty assessments are reasonable and
appropriate.
Docket No. WEVA 90-160
citation No.
3334094

30 C.F.R. Section

Assessment

77. 410 (a) (1)

$275

12/04/89

30 C.F.R. Section

3334014
3334015

77.1605(b)
77.1605(b)

01/04/90
01/04/90

$650
$350

ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the amounts shown above within thirty (30) days of the date of
these decisions and order. Payment is to be made to MSHA, and
upon receipt of payment, these cases are dis~issed .

.$

/~

~/e~ A1Koutras

Administrative Law Judge

Distribution~

Pamela So Silverman, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Gerald P. Duffp Esqo, HANLON, DUFF & PALEUDIS CO., LPA, 46457
National Road West, St. Clairsville, OH 43950 (Certified Mail)
/fb

470

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

20006

March 15, 1991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 90-303
A. C. No. 46-01452-03746

v.

Blacksville No. 1 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before:

Judge Merlin

The Solicitor has filed a motion to approve settlement of
the two violations involved in this case.
The originally assessed penalty was $384 and the proposed settlement is $200.
The
Solicitor discusses the violations in light of the six statutory
criteria set forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977.
Citation No. 3314744 was issued for a violation of 30 C.F.R.
75.316.
The approved ventilation plan was not being complied
with at the 9 north and 10 north air course regulators because
the wooden portions of the regulators had not been painted with
fire resistant material.
The proposed settlement would modify
the citation to reflect that the violation was not significant
and substantial. The originally assessed penalty was $192 and
the proposed settlement is $100. The Solicitor represents that
the reduction and modification are warranted because gravity was
not as severe as had been first estimated.
According to the
Solicitor, the regulators in question were not located near any
ignition source and were not likely to be exposed to flame or
excessive heat except during a significant mine fire or explosion.
In additionp there were no conditions in the mine at the
locations of the regulators to suggest that such an event was
likely to occur.
I accept the Solicitor's representations and
based upon them find that gravity was less than originally
thought,
Accordingly, I approve the recommended settlement and
find that the citation should be modified as requested.
§

Citation No. 3314753 was issued for a violation of 30 C.F.R.
75.316.
The approved ventilation plan was not being complied
with becauae one hundred eighty feet of energized power cable for
the muck pump located at the No. 2 conveyor belt transfer was not
support on well-insulated insulators.
The inspector noted that
the cable was lying on the damp pavement and that insulators had
§

471

not been installed.
The proposed settlement would modify the
citation to reflect that the violation was not significant and
substantial.
The originally assessed penalty was $192 and the
proposed settlement is $100.
The Solicitor represents that the
reduction and modification are warranted because gravity was not
as severe as had been originally thought.
According to the
Solicitor, the power cable was not usually handled or touched by
miners and was in good shape. Moreover, the cable was fully
protected by an undamaged outer jacket of hard rubber material.
I accept the Solicitor's representations and based upon them find
that gravity was less than originally thought.
Accordingly, I
approve the recommended settlement and the citation should be
modified as requested.
Accordingly, it is ORDERED that Citation Nos. 3314744 and
3314753 be MODIFIED to delete the significant and substantial
designations.
It is further ORDERED that the proposed settlement be
APPROVED and the operator PAY $200 within 30 days of the date of
this decision.

\~

•

\

Paul Merlin
Chief Administrative Law Judge
Distribution:
Page Ho Jackson, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)

Mro David Myers, UMWA, Route 1, Box 47-A, Morgantown, WV
(
fied Mail)

26505

Mr" Barry Dangerfield, Consolidation Coal Company, P. o. Box 100,
Osager WV 26543
(Certified Mail)

/gl

472

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

March 15, 1991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 90-307
A. C. No. 46-01968-03878

v.

Blacksville No. 2 Mine

CONSOLIDATION COAL COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
ORDER TO MODIFY
ORDER TO PAY
Before:

Judge Merlin

The Solicitor nas filed a motion to approve settlement of
the four violations involved in this case. The originally assessed penalty was $924 and the proposed settlement is $672. The
Solicitor discusses the violations in light of the six statutory
criteria set forth in section llO(i) of the Federal Mine Safety
and Health Act of 1977.
Citation No. 2708200 was issued for a violation of 30 C.F.R.
75.316. The intake escapeway of the 12 L longwall panel did
not have a constant air pressure from the intake escapeway to the
track from the No. 2 block through the No. 23 block and including
the area of the air lock haulage doors at No. 21 block. The
proposed settlement would modify the citation to reflect that the
violation was not significant and substantial. The originally
assessed penalty was $450 and the proposed settlement is $300.
The Solicitor represents that the reduction and modification are
warranted because gravity was not as severe as had been first
estimated.
§

By way of background, the Solicitor discusses the
requirements of the operator 1 s approved ventilation and dust
control plan for the Blacksville No. 2 Mine. The plan requires
that the operator maintain a constant air pressure from the
intake escapeway to the track haulage entry on the 12L longwall
panel. This provision was adopted because the operator elected
to install air lock doors between the track entry and the intake
escapeway entry to facilitate the movement of supplies to the
working face of the section. The constant air pressure provision
is intended to maintain the integrity of the intake escapeway in
the event the air lock doors become damaged or open during a fire
or other emergency in the track entry.
In order to maintain the
positive pressure differential, the operator hung a check curtain
in the intake side of the longwall.
Damage to the check curtain
by the movement of equipment and men caused the violation.

473

According to the Solicitor, the violation was detected only
when the air lock doors were open and that the when the doors
were closed the violation was not readily apparent. The
Solicitor further advises that the inspector was unable to
quantify the volume of the air passing from the track entry to
the intake escapeway when the air lock doors were not in use.
And it is possible that the volume was small since the violation
was abated by simply tightening the check curtain on the intake
side of the section.
In addition, the Solicitor avers that the
air lock doors were only in use two or three times a shift for
relatively short periods of time and that it was not likely that
a fire or other emergency would occur in the track entry during
the short period of time that the doors were utilized.
I accept
the Solicitor's representations and based upon them find that
gravity was less than originally thought. Accordingly, I
approve the recommended settlement and modification of the
citation.
Citation No. 3314981 was issued for a violation of 30 C.F.R.
75.515 because the conduit to the flow control switch of the
No. 2 Peerless pump, located -in a crosscut two blocks down the
empty track from tha rotary dump, had been pulled out of the
fitting leaving the insulated wires loose to rub on the metal
frame.
The proposed settlement would modify the citation to
reflect that the violation was not significant and substantial.
The originally assessed penalty was $227 and the proposed
settlement is $125. The Solicitor represents that the reduction
and modification are warranted because gravity was not as severe
as originally thought. According to the Solicitor, the ground
flow switch is not on the pump but rather is a permanent
installation surrounded by water, and, therefore, not generally
handled by miners. The Solicitor further states that the switch
is protected by a separate ground fault device.
I accept the
Solicitorus representations and based upon them find that gravity
was not as severe as originally estimated. Accordingly, I
approve the recommended settlement and the citation should be
modified as requested.
§

Citation No. 2708384 was issued for a violation of 30 C.F.R.
45.4(b) because the management failed to maintain in writing
the information required for certain trucking companies serving
as independent contractors. The originally assessed penalty was
$20. Citation No. 3314695 was issued for a violation of 30
C.F.R. § 75.303(a) because an adequate preshift examination had
not been performed for the morning shift on the 6 north loaded
track area. The originally assessed penalty was $227. After
investigating these matters, the Solicitor believes the evidence
at trial would support the fact of the violations and the
inspector's evaluations of gravity and negligence. Settlements
in the amount of the original assessments are sought for these
citations.
I accept the Solicitor's representations and approve
the proposed penalties.
§

474

Accordingly, it is ORDERED that Citation Nos. 2708200 and
3314981 be MODIFIED to delete the significant and substantial
designations.
It is further ORDERED that the proposed settlement be
APPROVED and the operator PAY $672 within 30 days of the date of
this decision.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Page H. Jackson, Esq., Office of the Solicitor, U. s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller III, Esq., Consolidation Coal Company, Consol
Plaza, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Mr. Merie M. Myers, UMWA, Route 2, Box 147, Rivesville, WV
(Certified Mail)
/gl

475

26588

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

DISCRIMINATION PROCEEDING

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

Docket No. PENN 90-249-DM
PITT CD 90-24

v.

Hamilton Strip

AL HAMILTON CONTRACTING CO.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Broderick

On March 14, 1991, the Secretary of Labor filed a motion to
withdraw the complaint of discrimination filed on behalf of
William McDonald.
On March 5, 1991, McDonald entered into a settlement
agreement with Respondent by which Respondent agreed to post a
notice at the mine that it .would not discharge or otherwise
discriminate against any miner in violation of the Mine Act.
It
also agreed to pay McDonald three days back pay with interest, to
expunge any reference to the discipline imposed on McDonald
involved in this proceeding from its personnel records and to pay
a civil penalty of $500.
In return, McDonald agreed to withdraw
his discrimination complaint.
I conclude that the motion and the settlement agreement
effectuate the purposes of Section l04(c) of the Act and should
be approved.
Accordingly, the motion is GRANTED, and, subject to the
completion performance by the parties of the settlement
agreement, this proceeding is DISMISSED •

.' '14 ' /
( (/J II L-'- ~_:)

James A. Broderick
Administrative Law Judge

476

Distribution:
Linda M. Henry, Esq., U.S. Department of Labor, Office of the
Solicitor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Alan F. Kirk, Esq., Kriner, Koerber & Kirk, 110 North Second
Street, P.O. Box 1320, Clearfield, PA 16830 (Certified Mail)
slk

477

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

HAR 1. 9 1991
CIVIL PENALTY PROCEEDINGS

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

Docket No. WEVA 90-166
A.C. No. 46-06647-03553
Docket No. WEVA 90-228
A.C. No. 46-06647-03552

BETHEL FUELS INCORPORATED,
Respondent

No. 1 Deep
DECISIONS APPROVING SETTLEMENTS
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties 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). The petitioner has filed motions
pursuant to Commission Rule 30, 29 C.F.R. § 2700.30, seeking
approval of the proposed settlements of the matters. The
citations, initial assessments, and the proposed settlement
amounts are as follows:
DocJ<et No, WEVA 90-166
30 C.F.R.
Section

Order No.
3311311

11/14/89

75.1704-2(e)

Assessment

Settlement

$600

$400

Docket No. WEVA 90-228
30 C.F.R.
Section
3311578

11/08/89

75.202(a)

478

Settlement
$600

-$600

Discussion
In support of the proposed settlements, the petitioner has
submitted information pertaining to the six statutory civil
penalty criteria found in section llO(i) of the Act.
In
addition, the petitioner has submitted a full discussion and
disclosure as to the facts and circumstances surrounding the
issuance of the citations in question, and a reasonable
justification for the approval of the settlements.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of these cases, I conclude and find that
the proposed settlement dispositions are reasonable and in the
public interest. Accordingly, pursuant to 29 C.F.R. § 2700.30,
the motions ARE GRANTED, and the settlements ARE APPROVED.
,ORDER
The respondent IS ORDERED to pay civil penalty assessments
in the settlement amounts shown above within thirty (30) days of
the date of these decisions and order. Payment
to be made to
MSHA, and upon receipt of payment, these proceedings are
dismissed.

~fo~
~~~strative
Law Judge
Distribution~

Pamela S. Silverman, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Room 516, Arlington,
VA 22203 (Certified Mail)
Mr. Thomas Stockdale, Safety Coordinator, Bethel Fuels, Inc.,
Route 7, Box 510, Morgantown, WV 26505 (Certified Mail)
/fb

479

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

MAR 19 J99L
DISCRIMINATION PROCEEDING

LONNIE JONES,
Complainant

v.

Docket No. KENT 91-78-D
MSHA Case No. BARB CD 91-05

DEER PATH CORPORATION
Respondent

No. 1 Mine

ORDER OF DISMISSAL
Before:

Judge Fauver

At a conference call on March 14, 1991, with the judge, the
Complainant, and counsel for Respondent, the Complainant moved to
withdraw his complaint and dismiss this case.
The motion is GRANTED, and this proceeding is DISMISSED.

tt)~f~

William Fauver
Administrative Law Judge

Distribution~

Mr. Lonnie Jones, 730 Highway 26, Williamsburg, KY 40769
(Certified Mail)
Mr. Michael E. Demski, General Manager, Deerpath Corporation,
P.O. Box 759, Jellico, TN 37762 (Certified Mail)
/fb

480

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

22041

MAR 19 \991
DISCRIMINATION PROCEEDING

ARNOLD R. SHARP,
Complainant

Docket No. KENT 89-147-D

v.
PIKE CD 89-08
BIG ELK CREEK COAL COMPANY,
Respondent
DECISION

Appearances:

Before:

Joe T.~Roberts, Esq., London, Kentucky for
the Complainant;
Edwin s. Hopson, Esq., Wyatt, Tarrant & Combs,
Louisville, Kentucky for the Respondent.

Judge Melick

This case is before me upon the Complaint by Arnold R. Sharp
under section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et seq., the 11 Act" alleging unlawful
discharge on February 28, 1989, by the Big Elk Creek Coal Company
(Elk Creek) in violation of section 105(c) (1) of the Act 1 •
1

section 105(c) (1) of the Act provides as follows:

No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights
of any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this Act because such
miner,
representative of miners or applicant for
employment, has filed or made a complaint under or
related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative
of the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other
mine or because such miner, representative of miners or
applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to section 101 or because such
representative of miners or applicant for employment has
instituted or caused to be instituted any proceedings
under or related to this Act or has testified or is about

481

More particularly Mr. Sharp alleges in his Complaint as
follows:
On February 28, 1989, I was discharged from my job
for missing too much work and for not signing a medical
authorization form concerning an accident I had at work
on January 20, 1989. The days I have missed worked
[sic] were mostly due to my becoming sick after working
in terrible weather conditions and I have always gave
[sic] them doctor's statements. In regard to the
request for a medical release, I filled out an accident
report, submitted emergency room records and submitted
a doctor's statement from Dr. Ratliff.
Since I won a previous discrimination case against
this company and was put back to work, I have
continually been harassed and have been wrongfully
fired.
I request reinstatement and all other relief to
which I am entitled.
In his post hearing brief.the Complainant appears to have
abandoned this assereion that his discharge was the result of the
settlement of a previous discrimination case against this mine
operator and he makes new claims of certain additional protected
activity, namely that he "complained to his supervisors and also
to MSHA about the unsafe conditions of the burm [sic], truck,
sweeper, and steam jenny as well as the health hazard to the
sweeper and steam jenny". ·
In order to establish a prima facie case of discrimination
under Section 105(c) of the Act, a complaining miner bears the
burden of proving that (1) he engaged in protected activity and
(2) the adverse action complained of was motivated in any part by
the protected activity. Secretary on behalf of Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (1980), rev 1 d on
other grounds, sub nom. Consolidation Coal Co. v. Marshall 663
F.2d, 1211 (3rd Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Company, 3 FMSHRC 803, 817-818 (1981).
The mine operator may rebut a prima facie case by showing
either that no protected activity occurred or that the adverse
contid fn.1
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.

482

action was in no part motivated by protected activity.
If the
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity. Pasula, supra, Robinette, supra; See also Eastern
Associated Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir.
1987); Donovan v. Stafford Construction Co., 732 F.2d 954 (D.C.
Cir. 1984); Baich v. FMSHRC, 719 F.2d 194 (6 Cir. 1983)
(specifically approving the Commission's Pasula-Robinette test)·.
see NLRB v. Transportation Management Corporation, 462 U.S. 393
(1983), approving a nearly .identical test under the National
Labor Relations Act.
While it has never been clearly articulated, it appears
from the "statement of the case" in the Complainant's Brief that
he is now maintaining that his discharge by Elk Creek on February
28, 1989, was a discriminatory response to the following
protected health and safety complaints and activities:

* * *
(1) After Claimant, Mr. Sharp, went back to work
on January 25, 1989, he went back to running the same
steam jenny and also ran a blue and white broom, which
sweeps the coal, and known as a coal sweeper, which had
no doors, windows, roll bar protection, and no heater,
and while running the broom, Mr. Sharp would get
soaking wet with freezing ice covering his body and
clothing and further that the sweeper had no windshield
and did not have protective goggles and therefore,
debris, dirt and coal came into the cab of the broom
actually hitting Mr. Sharp. (Tr.28)
Mr. Sharp complained to the foreman, Harlen couch, that
the broom sweeper was ·unsafe and Mr. Couch told Mr.
Sharp that he would run it or be fired and Mr. Sharp
also complained to the superintendent Mr. M.C. Couch
about the broom being unsafe and was told "you will run
or be fired. 11 Then Mr. Sharp complained to Jim
Meese at the Lexington Off ice and explained the
situation to Mr. Meese and the condition of the broom
sweeper and was told by Mro Meese, "you will work, Mr.
Sharp, or you will be fired."
(Tr. 29)
The broom sweeper had no doors, no windows, no heater,
and no roll bar protection and therefore Mr. Sharp,
after exhausting his reports of the unsafe conditions
to the company, finally reported it to the Federal Mine
Safety people, and the government issued a citation but
Mr. Sharp was filed [sic] before he could observe
whethQr the unsafe conditions on the broom could be
corrected by the company.
(Tr. 29-30) on February 20,
19 8 9 •
(Tr. 3 1)

483

Mr. Sharp also, between January 20, and February 28,
1989, complained to his supervisors and to the Federal
Mine Safety people that the steam jenny was unsafe and
was a health hazard,

* * *

Mr. Sharp had previously been fired and made
complaint and after hearing/trial, he was ordered
reinstated by the Administrative Law Judge and went
back to work in September, 1987, and was supposed to go
back to work on the rock truck, but at that time they
put him on the steam jenny through September and
October and in October, 1987, the steam jenny was
parked and anti-freezed, and covered with plastic and
Mr. Sharp was then put back on the rock truck in
November of 1987, and from November until January 5,
1988, Mr. Sharp was the sole driver of the rock truck
and at that time made complaints about the brakes, horn
and lights to his foreman, Willie Martin, and the
problems were not taken care of by the company, and
then Mr. Sharp compla{ned to. MSHA in November of 1987
and an inspector came and looked at the truck, and Mr.
Sharp also complained about the burm (sic] on the edge
of the hollowfill, and the inspector wrote up a
citation on the truck and on the burm [sic].
(Tr. 5762)

* * *

(3) when he [Mr. Sharp] went back to work on
February 22, 1988, he went back to work on a new rock
truck in which he drove up until June and he was taken
off the new truck and placed on the truck that he had
previously operated and made prior complaints about
which still had no horns, neither front nor rear, and
the brakes were metal against metal, which had never
been fixed since he had reported and MSHA had issued a
citation and this was truck number 621 1 and again Mr.
Sharp complained to Mr. M.C. Couch, Herlan couch, and
Jim Meese, who were all his immediate superiors about
the safety of the truck and which they did nothing
about andv
* * *
(4) Since Mr. Sharp began working for the
Respondent he has driven a rock truck, helped operate
an augerr a steam jenny and a coal sweeper and Mr.
Sharp has made complaints to his fellow employees,
foremen, supervisor, and administrators, as well as to
MSHA about the unsafe conditions of all the equipment
that he has operated or helped operate for the
Respondent and also has made complaints about unsafe
conditions of the burm (sic] where the rock trucks dump
into the hollowfill, and Exhibit C-5, shows that MSHA
wrote a citation on the broom for being unsafe and a
health hazard which Mr. Sharp had reported on

484

February 20, 1989, and Mr. Sharp was fired on
February 28, 1989.
(Tr.· 104-106) •

* * *

It is noted preliminarily that several of the above
allegations of protected activity and harassment have been the
subject of previous complaints under section 105(c) of the Act.
Those complaints have been considered and rejected by the
Department of Labor's Federal Mine Safety and Health
Administration and, in those cases pursued to this Commission, by
a Commission administrative law judge, and have since become
final. 2
I do however find in this case credible evidence to support
many of Sharp's claims of protected safety and health complaints.
While Harlen Couch denied at hearing that Sharp had ever made
complaints to him neither M.C. Couch nor Willie Martin, two of
Sharp's former supervisors, were called to testify. Sharp's
allegations of complaints to them therefore stand unrebutted.
In
addition, Elk Creek Administrator, James Meese, was candid in
acknowledging that not only did Sharp complain to him about
alleged unsuitable rairt gear and about alleged unsafe conditions
on the steam jenny (Tr.189) but also that Sharp regularly told
him of complaints he was making to MSHA (Tr.200).
Sharp has failed however to sustain his burden of proving
that Elk Creek was thereby motivated by such activities in
discharging him. According to the credible testimony of
James Meese he was the person who made the final decision to fire
Sharp and his decision was based solely on Sharp's attendance
problems and refusal to sign the medical information release. He
Those prior 105(c) complaints were as follows~
lo
BARB-CD 87-53 -- A Complaint concerning a lack
of training and not being reinstated to the proper job.
This was withdrawn on August 19, 1988, and approved by
Judge George Koutras.
2. PIKE-CD 88-10 -- A Complaint about warnings for
missing work, dismissed March 20v 1989 by Judge Koutras.
3o
PIKE-CD 88-18 -- A complaint of harassment for
Sharp 1 s not reporting to work as scheduled following a
training session on First Aid.
this was dismissed at
Sharp 1 s request on March 30, 1989 by Judge Koutras.
4.
PIKE-CD 89-02 -- A Complaint about a warning
concerning absenteeism for staying home with his wife,
dismissed by Judge Koutras on August 22, 1989.
5.
PIKE-CD 89-07 -- A Complaint filed by Sharp
alleging. he was assigned to the steam jenny in
retaliation for his earlier 105(c) Complaints. this was
dismis.sed by MSHA on March 30, 1989, and no further
review was sought by Sharp.
2

485

specifically denied placing any reliance on Sharp's record of
making health and safety complaints to the company and to MSHA.
I find this testimony completely credible.
This conclusion is strongly reinforced by the evidence that
Elk Creek's justification for its discharge of Sharp was based
upon credible, documented and well-founded unprotected business
reasons. This evidence supports both the finding that his
discharge was not motivated by any protected activity but also
that even assuming, arguendo, Sharp had established a prima facie
case, it would have been rebutted. Robinette supra.
In this regard the letter of discharge to Mr. Sharp dated
February 28, 1989, states as follows:
We have given you ample time since your first notice on
November 15, 1988, to improve your attendance at Big
Elk Creek Coal Company. on January 17, 1989, you were
advised for the second time in two months that your
attendance was unaccept~ple and that for the following
90 days your att~ndance would be closely reviewed.
Since your second notice on January 17, 1989, you have
missed another 5 days for various illness or personal
reasons.
Also, on January 29, 1989, you claim you injured a
muscle in your right leg in an alleged on-the-job
injury but did not report it to your foreman at the
time.
You missed 4 days for this claimed injury. We
have repeatedly asked you to sign a medical
authorization so that we could obtain information from
your doctor about this claimed injury. As recently as
February 24, 1989, you were advised that if you didn't
return the formv signed, you would be subject to
discipline up to and including discharge"
You have
refused to sign and return the formo
At this time, we feel you have missed too much time
during the 90-day period and, in view of all of this,
we have no alternative but to terminate your employment
effective February 28 7 1989.
(Exhibit No. C-10)
The credible evidence supports the allegations in the above
letter.
In particular the credible evidence shows that from the
week ending November 11, 1988 through February 25, 1989, Sharp
was absent from work 26 days out of 94 workdays {excluding
excused absences and 81 injury" days) or about 25 percent of his
scheduled work days. The evidence further shows that on
January 17r 1989, Sharp was advised by Elk Creek for the second
time in two-months that his attendance was not acceptable and
that it would be closely monitored for the next 90 days.
Following the second notice on January 17, 1989, the evidence
shows that Sharp indeed missed another five days for various
illnesses or for personal reasons.
It can reasonably be inferred

486

from the evidence in this case that three of those days were
unexcused and indeed that Sharp was falsely claiming a medical
excuse for those absences on January 21, through 23, 1989.
The discharge letter also refers, as a separate ground for
discharge, Sharp•s refusal three times to sign a release to
permit review by Elk Creek of medical reports relating to that
absence. The reports provided to the operator by Sharp are not
legible and appear to offer contradictory diagnoses. Under the
circumstances the operator was justified in seeking further
explanation.
This procedure was even more warranted in light of Sharp's
previous history of attendance deficiencies and of his
predictions purportedly made to Elk Creek Administrator, James
Meese, shortly before the absence, that he might very well get
hurt working on the task that he was then performing. According
to the credible and undisputed testimony of Meese, Sharp
complained to him on January 21, 1989, about working the steam
jenny and predicted that he might get hurt.
Under all the circumstances I do not find that Mr. Sharp has
sustained his burden of proving that he was discharged in
violation of Section 105(c) (1) of the Act.
ORDER

Discrimination Complaint Docket No. K
DISMISSED.

Law Judge
Distribution~

Joe T. Roberts; Esq. Roberts Building, 405 South Main Street
London; Kentucky 40741 (Certified Mail)
Edwin S. Hopson, Esq., Wyatt, Tarrant & Combs
Louisville, Kentucky 40202 (Certified Mail)
nb

487

1

1

Citizens Plaza,

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR

5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA

22041

MAR 2 8 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Dccket No. KENT 90-442
A.C. No. 15-13576-03S06

v.
Ely Fuel Company

ELY FUEL COMPANY,
Respondent
DECISION

Appearances:

Before:

Elaine Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee for
Petitioner;
Frank Stewart, President, Ely Fuel Company,
Pineville, Kentucky for Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of the
Federal Mine
and Health Act of 1977, 30 u.s.c. § 801
e't sea., the "Act," .in which the Secretary has proposed civil
pen.alties for two alleged violations by the Ely Fuel Company
(Ely) of mandatory standards, The general issues before me are
whether Ely committed the violations as alleged and, if so, che
amount of civil penalty to be assessed.

c tat.ion No. 3380133 alleges a usignificant and substantial"
violation of the standard at 30 C.F.R. § 77.502-2 and charges
that "the co. nas not conducted a monthly examination and
~ecorded it in an approved MSHA record book by a qualified
person."
The standard at 30 C.F.R. § 77.502-2 is requires that "the
examinations and tests required under the provisions of this
section 77.502 shall be conducted at least monthly." The
standard at 30 C.F.R. § ~7.502 provides as follows:
Electric equipment shall be frequently examined,
tested~ and properly maintained by a qualified person
to assure safe operating conditions. When a
potentially dangerous condition is found on electric
equipment, such equipment shall be removed from service
until such condition is corrected. A record of such

488

examinations shall be kept.
In its Answer and at hearings in this case Ely acknowledges
that the violation occurred as charged but denies that an injury
or illness was likely to result from the violation and denies
that it was a "significant and substantial" violation. According
to Inspector Richard Saylor of the Federal Mine Safety and Health
Administration (MSHA), during the course of his regular
inspection on June 20, 1990, he examined the record books for the
monthly electrical examinations at the subject mine and found
that the monthly examination had not been performed.
Ely
Foreman, J. c. Smith, acknowledged that they had not performed
the monthly exam. According to Saylor an injury was "reasonably
likely" and it was "very likely that something could happen and
cause a person to get hurt or injured." He noted that the
purpose of an electrical inspection is to determine that nothing
is wrong with the electrical system.
Saylor testified that if a
person "got in electricity it would have to be serious". He
noted that there were electrical motors, and transformers on
the crushers and it involved high voltage.
More particularly he
noted that a motor could get "shorted out" and you would "get
power on" the person .. -He opined that injuries would occur to
only one person that being the person operating the tipple.
Ely President Frank Stewart denied at hearing that the
violation was serious. He observed that the tipple is run only
five months a year and he is given a day or two notice by his
contractor to run the tipple.
It is only upon such notice that
he arranges for the electrical inspection. On this occasion
Stewart maintains he called his regular electrical inspector,
Donald Dunn, the day before the citation was issued to inspect
the tipple.
According to Stewart, Dunn was late showing up and
the MSHA inspector arrived first.
Dunn purportedly showed up
later.
Neither Inspector Saylor nor Dunn apparently found any
electric
fects in the equipment.
Stewart also testified that the requisite electrical
inspection had been made early the month before and that his
foreman J.C. Smith, though not a certified electrician had 35
years electrical experience and regularly inspects the tipple
himse'
It is noted that Ely had previously been cited for a
violation of the same standard at issue herein for failing to
conduct the required monthly electrical examination under
30 C.F.R. § 77.502-2, only four months before.
It is also
apparent that Ely management-including foreman J.C. Smith knew
that the required electrical inspection had not been performed
when they commenced operation of the tipple knowing that such an
examination was required.
The violation was therefore the result
of high negligence.

489

While there was no record of any violative electrical
condition existing on the date of the citation it may
nevertheless reasonably be inf erred that the violation was
''significant and substantial". The circumstances expected in
continuing mining operations may be considered in the evaluation
of whether a hazard would be reasonably likely.
Under the
circumstances I conclude that the violation was indeed
"significant and substantial". See Mathies Coal Company,
6 FMSHRC 1 (1984).
Considering the criteria under section llO(i) of the Act
concur with proposed civil penalty of $36.

I

Citation No. 3380134 alleges a violation of the standard at
30 C.F.R. § 77.1707 and charges that "the company didn't have an
adequate first aid kit at the tipple and that some items were
missing."
The cited standard, 30 C.F.R.
follows:

§

77.1707 provides in part as

(a) Each opera-tor of a surface coal mine shall maintain
a supply of the first aid equipment set forth in
paragraph (b) of this section at or near each working
place where coal is being mined, at each preparation
plant and at shops and other surf ace installations
where ten or more persons are regularly employed.
(b) The first aid equipment required to be maintained
under the provisions of paragraph (a) of this section
shall include at least the following:
(1) One stretcher;
(2) One broken-back board (if a splintstretcher combination is used it will satisfy
the requirements of both paragraph (b)(l) of
this section and this paragraph (b) (2);
(3) Twenty-four triangular bandages (15 if a
splint-stretcher combination is used);
(4) Eight 4-inch bandage compresses;
(5) Eight 2 inch bandage compresses;
(6) Twelve 1-inch adhesive compresses;
(7) An approved burn remedy;
(8) Two cloth blankets;
(9) One rubber blanket or equivalent substitute;
(10) Two tourniquets;
(11) One 1-ounce bottle or aromatic spirits of ammonia
(12) The necessary complements of arm and leg
splints or two each inflatable
plastic arm and leg splints.
(c) All first aid supplies required to be maintained
under·the provisions of paragraphs (a) and (b) of this
section shall be stored in suitable, sanitary, dust
tight, moisture proof containers and such supplies

490

shall be accessible to the miners.
Ely does not dispute the violation but maintains that there
were only a few items missing from the first aid kit and argues
that the allegation in the citation was ."so frivolous that it
defies belief".
Inspector Saylor acknowledged that the violation was of low
gravity and that only a few items were apparently missing from
the first aid kit but noted that he does not have the discretion
to overlook violations even when they are not serious.
Indeed
Saylor has noted on the citation that the violation herein was
not serious and the Secretary has proposed only a nominal penalty
of $20.
There is, in addition, little evidence in this case of
operator negligence.
Under the circumstances and considering the
relevant criteria under section llO(i) of the Act I find the
Secretary's proposed penalty of $20 to be appropriate.

ORDER
Ely Fuel Company is hereby .directed to pai civil penalties
of $56 within 30 days-of the date -0f his deci ion.

(/

I

I '

r'

11

'l

Ii
j

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,. _/·, '----.....

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VV'\
,Gary Melick
\ \
./
/ Admi 'istrative\ Law Judge

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Distribution:

\
Elaine Smith, Esq., U.S. Department of Labor, O~fice
of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nasvhil
, TN
37215
(Certified Mail)
President Frank Stewart, Ely Fuel Company, P.O. Box 980,
Pineville, KY 40977 (Certified Mail)
nb

491

"-

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

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

22041

CIVIL PENALTY PROCEEDING
Docket No. PENN 90-258
A.C. No. 36-05658-03681

v.
Urling No. 3 Mine
KEYSTONE COAL MINING
CORPORATION,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

This case is before me upon a petition for assessment of a
civil penalty under § 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801
seq.
Petitioner has filed
a motion to approve a settlement agreement and to dismiss the
case.
I have considered the representations and documentation
submitted and I conclude that the proffered settlement is
consistent with the criteria in § llO(i) of the Act.
WHEREFORE, IT IS ORDERED that the motion for approval of
settlement is GRANTED, and Respondent shall pay the approved
penalty of $135 within 30 days of this decision.
Upon such
payment this case is DISMISSED.

td~?t~v~
William Fauver
Administrative Law Judge
Distribution:
Susan M. Jordan,
., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104_,(Certified Mail)
William M. Darr, Esq., Keystone Coal Mining Corporation, P.O.
Box 792, Indiana, PA 15701 (Certified Mail)
/fb

492

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

CIVIL PENALTY PROCEEDING

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

.

Docket No. SE 90-79-M
A.C. No. 31-01869-05525

v.
Miller Hill Quarry
CALDWELL STONE COMPANY, INC.,
Respondent
DECISION

·-

Appearances:

Leslie John Rodriguez, Esq., Office of the
Solicitor, U.S. Department of Labor, Atlanta,
Georgia, for the Petitioner;
Mr. Dale Caldwell, President, Caldwell Stone
Company, Inc., Hudson, North Carolina, prose, for
the Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated 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).
Petitioner seeks a civil penalty assessment in the amount of $650
for an alleged violation of mandatory safety standard 30 C.F.R.
§ 56.14107(a).
The respondent filed a timely answer contesting
the alleged violation, and a hearing was held in Hickory,
North Carolina. The parties waived the filing of posthearing
briefs but I have considered their oral arguments made on the
record in the course of the hearing.
Issues
The issues presented in this case are (1) whether the
respondent violated the cited mandatory safety.standard, and
(2) the appropriate civil penalty to be assessed pursuant to the
civil penalty assessment criteria found in section llO(i) of the
Act.

493

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 301, et seq.
2.

30 C.F.R. § 56.14107(a).

3.

Commission Rules, 29 C.F.R. § 2700.1, et seq.

Stipulations
The parties stipulated that the Commission has jurisdiction
in this matter and that the respondent is a small mine operator
(Tr. 4) .
Discussion
The contested section 104(a) non- 11 S&S" Citation No. 3254968,
issued by MSHA Inspector William T. Hall on February 6, 1990,
cites an alleged violation of mandatory guarding standard
30 C.F.R. § 56.14107(a), and ~he cited condition or practice
states that "The head-pulley and drive unit were not guarded on
the surge conveyor."
Petitioner's Testimony and Evidence
MSHA Inspector William T. Hall testified as to his education, experience, and training, and he confirmed that he holds a
bachelor's degree in industrial technology and occupational
safety and health from the University of Kentucky (Tr. 10-12).
He confirmed that he conducted an inspection at the respondent's
mining operation on February 6, 1990, and that foreman John Cline
accompanied him (Tr. 13).
Mr. Hall stated that he issued the citation in question
after finding that the surge conveyor head pulley and drive unit,
which constituted moving machine parts, were not guarded.
In
view of the numerous inspections he has conducted, Mr. Hall could
not specifically recall or describe the area where the violative
conditions were present. However, he confirmed that the hazard
concerned exposed moving machine parts which could cause injury
to only one employee, namely, a plant utility clean-up man who
would be in the area. Under the circumstances, he concluded that
an injury was unlikely 1 and that the violation was non- 11 8&8 11 (Tr.
14) ,

Mr. Hall confirmed that subsection (b) of section 57.14107,
provides an exception which does not require a guard if the
exposed moving part is at least 7 feet away from any walking or
working area.
However, in the instant case, there was a material
spillage buildup of approximately 1-foot under the conveyor and
this placed the unguarded head pulley within 6 feet of the

494

spillage and outside of the exception. He confirmed that he is
6-foot one and a-half inches tall, and when he stood on the
material he was "looking right at the head pulley" which he
estimated was 6 feet above the material on which he was standing
(Tr. 14 -15) •
Mr. Hall could not recall that foreman Cline made any
comments about the violation, and he confirmed that it was abated
(Tr. 15). He stated that he based his "high negligence" finding
on the respondent's prior violation history of the guarding
standard. He confirmed that the unguarded pulley was readily
observable, and it appeared that a competent person had not
inspected the workplace for a hazard. Under the circumstances,
he found no mitigating circumstances with respect to the respondent's negligence (Tr. 16).
Although Mr. Hall agreed that someone would have to make a
deliberate effort to reach the unguarded pulley, he nonetheless
believed that anyone walking on the material spillage buildup
could slip and fall into the pulley. However, he believed that
an injury was unlikely, and that the violation was not significant and substantial~ because only one person was in the area.
Mr. Hall confirmed that he recommended a "special civil penalty
assessment" for the violation because of the respondent's past
history of violations of the guarding standard in question (Tr.
17-18)
0

On cross-examination, Mr. Hall stated that if someone
tripped on the material spillage pile he could fall into the head
pulley which would be 6 feet above ground at this location (Tr.
19).
He confirmed that he did not measure the distance between
the top of the pile and the unguarded pulley because "I could
walk right up to it and see it was 6 feet above the ground" (Tr.
2 0)

0

After reviewing several photographs of the conveyor produced
Mr. Hall stated that he could not identify the
cited unguarded pulley in question because he could not specifically recall it because nit's been over a year ago and things
could have changed on the property 11 (Tro 21-22; exhibits R-1
through R-4)"

by the respondent,

Referring to photographic exhibit R-3, the respondent 0 s
representative, Dale Caldwell, stated that Inspector Hall listed
the wrong conveyor in his citation, and he believed that Mr. Hall
mistook the tail pulley of the No. 2 surge conveyor for the head
pulleyo However, Mr. Caldwell explained that the surge conveyor
cited by the inspector is a part of the "second phase" of the
surge conveyor which is "the belt coming out of the tunnel 11 (Tr.
33). Inspector Hall could not recall the head pulley and drive
unit that was cited (Tr. 33). Although he identified a drive

495

unit in the photograph, Mr. Hall reiterated that due to the
passage of a year, he could not recall the specific situation
(Tr. 34).
In response to further questions, Mr. Hall stated that he
relied on a computer print-out of the respondent's history of
prior violations which is on file in his office. He believed
that he issued some of the prior guarding citations, and although
he could not recall reviewing the prior citations at the time of
his inspections, he believed that he did because he is required
to review the mine file.
He stated that he was not influenced by
the delinquency letters reflected in exhibit P-1, because the
computer print-out in the mine file was not the same as the one
in evidence in this case and he would not have had the delinquent
payment information when he made his negligence finding in this
case (Tr. 27).
Mr. Hall confirmed that in view of the exception found in
section 56.14107(b), the question of whether a guard was required
would depend on whether there was a material spillage buildup on
the ground below the pulley, 'and that the requirement for a guard
could change from day-to-day depending on the existence of
spillage which may result in the moving part being less than
7 feet above the spillage pile. If there was no spillage, the
unguarded pulley would have been 7 feet above the ground and it
would not require a guard (Tr. 27-29).
Mr. Hall stated that the conveyor is supposed to be locked
out when maintenance work or greasing is performed, but he did
not know the procedures followed by the respondent in this regard
(Tr. 29-30).
Respondent 1 s Testimony and Evidence
Dale Caldwell 1 respondent 1 s presidentr testified that
Hall cited an unguarded surge conveyor head pulley and
drive unit, and referring to photographic exhibits R-1 and R-3,
he identified the location of these moving parts as the circled
equipment on the conveyor shown at the top of the photographs.
However; he indicated that what the inspector actually observed
was an unguarded tail and head pulley on the number 2 conveyor,
and he identified this
of equipment as the conveyor closest
to the ground as shown
exhibits R-1 and R-3 (Tr. 34-35)¢
Mr. Caldwell believed that Inspector Hall was looking at the
bottom conveyor when he issued the violation, and that he
incorrectly identified it as the surge conveyor when he wrote the
citation. Mr. Caldwell stated that he knew that Mr. Hall had the
wrong conveyor "because my foreman took me out there and showed
me the conveyor" (Tr. 36). Mr. Caldwell stated that the surge
conveyor head pulley and drive unit shown in exhibits R-1 and R-3

496

were probably 7 or 8 feet above the material buildups shown in
the photographs (Tr. 36).
Mr. Caldwell confirmed that he was not with Inspector Hall
when he issued the citation, but that his foreman was. He also
confirmed that he discussed the citation with Mr. Hall, but did
not point out that he may have cited the wrong conveyor.
In
explaining why he did not point this out to the inspector,
Mr. Caldwell stated that "I'm glad when he leaves," but that the
$650 fine "got my attention," and that he reviewed the citation
and "I realized that he had the wrong conveyor down there" (Tr.
41) .
Mr. Caldwell stated that foreman Cline informed him that
Mr. Hall had cited the wrong conveyor after they returned to the
plant to discuss abatement. Mr. Caldwell stated that regardless
of whether the head pulley or tail pulley were correctly cited,
he still believes that someone would have to deliberately reach
or jump up to contact the unguarded equipment (Tr. 42).
On cross-examination, Mr• Caldwell confirmed that the four
photographic exhibits-were taken the day before the hearing of
January 23, 1991. Although he agreed that the amount of spillage
shown in the photographs is not the same observed by the inspector during his inspection, Mr. Caldwell believed that the area
where the material drops below the conveyors is the same area
(Tr. 4 7) .
Mr. Caldwell reiterated that foreman Cline told him that
Inspector Hall issued the citation for the unguarded tail pulley
of the No. 2 belt, and that the surge conveyor is the conveyor
that feeds onto the No. 2 belt (Tr. 48). Mr. Caldwell agreed
that it was not unusual to have material spillage in the area
where both conveyors are located (Tr. 49).
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
guarding standard 30 C.F.R. § 56.14107(a), for failing to provide
a guard for the cited surge conveyor head pulley and drive unit.
Section 57.14107, provides as follows:
(a)
Moving machine parts shall be guarded to
protect persons from contacting gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels, coupling, shafts, fan blades; and similar
moving parts that can cause injury.

49 7

(b)
Guards shall not be required where the
exposed moving parts are at least seven feet away from
walking or working surfaces.
Subsection (b) of the standard provides an exception for
guards, and it provides that no guard is required if the exposed
moving parts are at least 7 feet away from walking or working
surfaces.
In this case, Inspector Hall confirmed that he issued
the citation and found a violation because the accumulated
material spillage under the exposed conveyor pulley and drive
unit placed them within 7 feet of the spillage (Tr. 30). The
petitioner's counsel agreed that this was the case, and he
pointed out that if the spillage had been cleaned up no guard
would have been required and the respondent would have been in
compliance (Tr. 31).
Mr. Caldwell asser~ed that he contested the citation because
he believed that the proposed civil penalty assessment for the
violation was excessive (Tr. 5). He contended that the inspector
identified the wrong pulley in the citation and that he mistook
the tail pulley of the No. 2 surge conveyor for the head pulley.
Mr. Caldwell confirmeg that he was not with Mr. Hall when he
inspected the conveyor and issued the citation, and he indicated
that foreman Cline told him that Mr. Hall had incorrectly identified the cited piece of equipment.
Inspector Hall testified that he cited the unguarded surge
conveyor head pulley and drive unit, but in view of the fact that
the citation was issued over a year ago, and the many intervening
inspections he has conducted, Mr. Hall could not recall the
specific piece of equipment which he cited, nor could he identify
it in any of the photographic exhibits.
Mr. Caldwell did not produce foreman Cline to testify in
this case.
Further, Mr. Caldwell confirmed that he discussed the
violation with Inspector Hall when he issued the citation but
that he said nothing to him about citing the wrong conveyor (Tr.
40) v and I take note of the fact that Mr. Caldwell said nothing
to suggest that Mr. Hall may have cited the wrong piece of
equipment when he filed his answer of July 2, 1990, in this case.
I also take note of Mr. Caldwell vs testimony that the head pulley
cited by Mr. Hall, and the tail pulley referred to by
Mr. Caldwell were "both at the same area" and that he believed
that someone would have to deliberately reach up to contact them
(Tr. 41).
I further note the fact that the photographs produced
by Mr¢ Caldwell were taken almost a year after the citation was
issued.
The respondent's argument that Mr. Hall incorrectly identified the cited pulley in question is rejected, as less than
credible.
I find Mr. Hall to be a credible witness, even though
he had no present recollection of all of the details surrounding

498

the is9uance of the violation. I conclude and find that the
petitioner has established a violation of the cited standard, and
the citation issued by the inspector IS AFFIRMED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a small
operator. Mr. Caldwell testified that the quarry in question is
his only mining operation and that he employs 11 miners. He
confirmed that his annual production in 1990 was approximately
200,000 tons of crushed stone (blue granite), and that the quarry
worked approximately 19,163 man-hours (Tr. 4-5).
I have taken
this into consideration in assessing the civil penalty for the
violation in question.
In the absence of any evidence to the contrary, I cannot
conclude that the payment of the civil penalty which I have
assessed for the violation will adversely affect the respondent's
ability to continue in business.
History of Prior Vioration
The respondent's history of prior violations is reflected in
a computer print-out covering the period February 2, 1988,
through February 5, 1990 (exhibit P-1; Tr. 8). The information
in the print-out shows that the respondent was assessed for 65
violations, and that the proposed civil penalty assessments for
these violations totalled $6,476. The respondent paid civil
penalty assessments in the amount of $1,681.19, for 26 of the
violations. The remaining unpaid violations resulted in delinquency letters from MSHA and referrals of several violations to
the United States Attorneys Office for collection action (Tr.
18)" Mr. Caldwell stated that he is currently making payments on
the delinquent assessments (Tr. 8).
I take note of the fact that forty (40) of the prior
assessed violations were section 104(a) non-"S&S" citations.
Eight (8) of the prior violations were for violations of section
56.14107 1 and two (2) of these were non-"S&S," and six (6) were
"S&s,uu

For an operation of its size, I cannot conclude that the
respondent has a particular good compliance record, particularly
with respect to the non-payment of assessed civil penalties which
has resulted in a number of MSHA delinquency letters, and several
referrals to the U.S. Attorneys Office for collection.
I have
considered this compliance record in assessing the civil penalty
for the violation.

499

Gravity
Inspector Hall confirmed that due to the passage of time, he
could not recall the specific conditions which prevailed at the
time he issued the citation (Tr. 14, 19}. He stated that the
conveyor is required to be locked out when it is greased or
maintenance is performed, and there is no evidence that this was
not done. Under the circumstances, and in view of the inspector's non-s&s finding, I conclude and find that the violation was
non-serious. I find it unlikely that the one employee who may
have been in the area would walk or stand on top of the accumulated spillage under the conveyor and place himself at risk by
contacting the unguarded equipment in question.
Good Faith Compliance
The record reflects that the violation was abated 1-hour
prior to the time fixed by the inspector on the same day the
citation was issued. Abatement was achieved by cleaning up the
spillage under the conveyor, thereby placing the unguarded
equipment at least 7 feet above the ground (Tr. 31). Under the
circumstances, I conclude and find that the respondent abated the
violation rapidly and in good faith, and I have taken this into
consideration in the assessment of the civil penalty for the
violation.
Negligence
Inspector Hall made a finding of "high negligence," and he
testified that he based this on the respondent's prior history of
violations of the guarding standard (Tr. 15). He found no
mitigating circumstances, and indicated that the unguarded
equipment was in plain view and that a competent person should
have noticed the violation (Tr. 16).
The inspector could not recall the circumstances surrounding
the issuance of the prior eight guarding violations.
Mr. Caldwell conceded that violations have occurred in the past,
but he pointed out that no injuries have ever resulted from any
of these violations, and that he has always corrected any cited
violative conditions (Tr. 5-6). The petitioner and the inspector
had no information to the contrary regarding the respondent's
accident-free record (Tr. 43-44).
Mr. Caldwell testified that he had never been cited for any
similar conditions during the entire time he has been in business
since 1979, and that all conveyor moving parts have always been
above ground level (Tr. 20, 24).

500

Contrary to the inspector's "high negligence" finding, which
I find is unsupported, I conclude and find that the violation
resulted from the respondent's failure to exercise reasonable
care, and that this constitutes ordinary negligence.
Civil Penalty Assessment
The record in this case reflects that the non-"S&S" violation was "specially assessed" at $650, and the special assessment
officer noted that the respondent "had been cited numerous times
for similar conditions during previous inspections at the mine."
The petitioner's counsel confirmed that MSHA has changed its
civil penalty assessment policy in light of a recent Federal
district court decision, and that "stiffer penalties" have been
assessed based on "prior history" (Tr. 38).
In this case, MSHA's computer print-out reflects eight prior
citations for violations of section 56.14107, over a 2-year
period of time. However, copies of the prior citations were not
produced by the petitioner, and the inspector could not recall
the circumstances under which those prior violations were issued
(Tr. 8, 2 6) .
It is clear that I am not bound by MSHA's proposed civil
penalty assessment, or the penalty assessment procedures found in
Part 100, Title 30, Code of Federal Regulations.
Contested civil
penalty cases are heard de novo by the presiding judge, and any
civil penalty assessment is made in accordance with the criteria
found in section llO(i) of the Act.
With regard to MSHA's "excessive history" civil penalty
assessment policy, I take note of the fact that the Commission's
Chief Judge, Paul Merlin, recently ruled that the policy is
invalid because of the Secretary 1 s failure to adopt such policy
through rulemakingo
See~
Secretary of Labor (MSHA) Vo Drummond
Company, Inc., Docket No. SE 90-126, March 6, 1991. Apart from
this ruling, and although I have concluded that the respondent
does not have a particularly good overall compliance record and
have taken this into consideration in assessing the civil penalty
for the violation which has been affirmed, I cannot conclude that
the respondent 1 s history of prior guarding violations is such as
to warrant any additional increase in the civil penalty
assessment.
On the bas
of the foregoing findings and conclusions, and
taking into account the civil penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty assessment in the amount of $125 is reasonable and
appropriate for the violation which has been affirmed.

501

ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $125, for a violation of 30 C.F.R.
§ 56.14107(a), as stated in section 104(a} non-S&S Citation
No. 3254968, February 6, 1990. Payment is to be made to MSHA
within thirty (30) days of the date of this decision and order,
and upon receipt of payment, this matter is dismissed.

4A~o~
Administrative Law Judge

Distribution:
Leslie John Rodriguez, Esq., Office of the Solicitor, U.S.
Department of Labor, Room 339, 1371 Peachtree Street, N.E.,
Atlanta, GA 30367 (Ce:i;_tified Mail)
Mr. Dale Caldwell, President, Caldwell Stone Company, Inc., P.O.
Box 765, Hudson, NC 28638 (Certified Mail)

/fb

502

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

MAR 2 8 1991
DISCRIMINATION PROCEEDING

WAYNE C. TURNER,
Complainant

v.

Docket No. VA 90-51-D

NEW WORLD MINING INC.,
Respondent

NORT CD 90-08
No. 1 Strip
DECISION

Appearances:

Donala E. Earls, Esq., Norton, Virginia, for the
Complainant;
Karen K. Bishop, Esq., Wise, West Virginia, for the
Respondent.

Before:

Judge Weisberger

Statement of the Case

This case is before me based upon a Complaint filed on
August 24, 1990, by Wayne c. Turner (Complainant) alleging, in
essence, that he was discriminated against by New World Mining
Incorporated (Respondent), in violation of Section 105(c) of the
Federal Mine Safety Act of 1977 (the Act).
Respondent filed an
Answer on September 27, 1990, and the case was subsequently
assigned to me on October 4, 1990.
In a telephone conference
call initiated by the undersigned, between Complainant and
Counsel for Respondent, the former indicated that he intended to
be represented by an attorney. On October 23, 1990, in a
telephone conference call initiated by the undersigned, between
Counsel for both Parties, it was agreed that this case be set for
hearing on November 27, 1990. Subsequently, Respondent requested
an adjournment which was not opposed by Complainant. The case
was rescheduled and heard in Abingdon, Virginia, on December 13,
1990. At the hearing Michael D. Sturgill, Wayne Turner, and Mark
McGuire tes fied for Complainant. Henry M. Yates, Edward Edmond
Stanley, and Francis Salyers testified for Respondent.
At the conclusion of the hearing, the Parties were granted
the right to file Briefs and Proposed Findings of Fact, 3 weeks
subsequent to the receipt of the transcript of the hearing.
Volume I of the Transcript was filed on January 24, 1991, and
Volumes II and III were filed on January 28, 1991. To date,

503

neither Party has filed any posthearing submission. Nor has
either Party requested an extension
time to file a
f and
Proposed Findings
Fact.
Findings of Fact and Discussion

Wayne C. Turner (Complainant) had been employed by
Respondent for approximately 3 years until he was fired by his
foreman, Francis Salyers, on Monday, April 30, 1990. It is
Complainant's position that his discharge by Respondent was in
violation
Section 105(c) of the Act, which, as pertinent,
provides that it is unlawful to discharge a miner because of the
exercise by such miner " . . . of any statutory right
ford by
this Act. 11
•
Discussion

The Commission,
a recent decision, Goff v. Youghiogheny &
Ohio Coal Company, 8 FMSHRC 1860 (December 1986), reiterated the
legal standards to be applied in a case where a miner has alleged
acts of discriminatioR. The 'commission, in Goff, supra, at 1863,
stated as follows:
A complaining miner establishes a prima facie case
of prohibited discrimination under the Mine Act by
proving that he engaged in protected activity and that
the adverse action complained
was motivated in any
part by that activity. Pasula, 2 FMSHRC at 2797-2800;
Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1981). The Operator
may rebut the prima facie case by showing either that
no protected activity occurred or that
adverse
was not motivated in any part by protected
Robinette, 3 FMSHRC at 818 n. 20. See also
v. Stafford Constr. Co., 732 F.2d 954, 958-59
D.C. C
1984); Boich v. FMSHRC, 719 F.2d 194, 195-96
(6th Cir. 1983) (
ifically approving the
Commission's ?asula-Robinette test).
In the period at issue, Turner operated a drill from
ide
a cab located on a platform (table).
drilling operation
produced large amounts of dust, but the
ill apparatus was
equipped with a water system, dust collector, and bushings to
prevent dust from entering the cab where the drill operator
worked.
In addition, the
itself was equipped with an air
conditioner to allow proper ventilation in the cab, should it be
c
ed to
out dust. Turner indicated that none of this
equipment worked properly, and that specifically the bushings had
worn out, allowing quant ies of dust to enter the
According to Turner, on numerous occasions he complained to his
foreman, Francis Salyers, about these conditions. Salyers, while
sputing that Turner complained to him about the worn bushings,

504

did acknowledge that Turner had complained to him two or three
times about dust on the drill, and specifically had complained
about the air conditioning not functioning.
Henry M. Yates,
Respondent's superintendent, who is the supervisor of Salyers,
indicated that Turner had complained to him approximately two or
three times about dust.
Thus, inasmuch as Respondent, in essence, has not rebutted
Turner's testimony that he had complained to Respondent's
managers with regard to the presence of dust in his work
environment, I conclude that Turner engaged in protected
activities.

II.
a.

Respondent's Reaction to Turner's Complaints

On direct examination, Turner was asked what "would they"
say to him when he complained about the air conditioner and the
fact that he had to "breathe that dust" (Tr. 58). Turner
answered that Salyers said "You're like a woman, you bitch more
than a woman does aboUt the dust on these drills" (Tr. 58). This
statement by Salyers constitutes the only evidence adduced
relative to any manifested adverse reaction by Respondent to
Turner's protected complaints. On the other hand, Salyers
indicated that on the Friday prior to the Monday on which Turner
was fired (April 30), in response to ~he complaints as to dust
that Turner had made that day, he spent the whole day purchasing
and installing insulation in order to seal the cracks in the air
conditioner.
Also, Yates indicated that in response to Turner 1 s
complaints about dust, he ordered bushings to be made. Turner,
in essence, testified that at times he had been provided with
dust collectors.
In essence, he also said that when he
complained about the dust coming through the bushings, he was
~old by Salyers that he would get a replacement bushing as soon
as he could. He also indicated that when he complained about the
water system, Salyers indicated to him that he would get it
fixed, but in fact never did. Thus, Ccmplainant has failed to
establish that Respondent manifested any significant animus
towards him as a consequence of his having complained about
exposure to dust.
b.

The Firing of Turner

In general, the work week at Respondent's mine is Monday
through Friday, with work being required on Saturday on an "as
needed basis."
(Claimant's Exhibit~).
On Friday, April 27,
Yates informed Salyers that work was required on Saturday. There
is a conflict in the record between Complainant's witnesses and
Respondent's witnesses Edward Edmond Stanley, the night foreman,
and Salyers, as to whether the latter had informed Turner and his

505

crew (Michael D. Sturgill and Michael McGuire) that they were
expected to work the following day i.e., Satulday. On Saturday,
April 28, neither Turner nor Sturgill worked. I
On the morning of Monday, April 30, 1990, when Sturgill and
Turner arrived at the work site, there is a conflict in the
evidence between the testimony of Complainant's witnesses and
that of Salyers, as to whether the latter initiated cursing at
Sturgi
and Turner for not having reported to work on Saturday.
However, both Complainant's witnesses and Salyers are consistent
in testifying that a heated discussion ensued between Turner and
Sturgill on the one hand, and Salyers on the other. According to
Turner, Salyers told him that "if you're copping an attitude to
me, I will fire you right now" (Tr. 71). Turner indicated that
he responded by saying "well, you can take a flying leap and kiss
my ass . . . 11 (Tr. 71), and then leaving. Sturgill indicated
that there was cussing back and forth with regard to whether he
and Turner were told on Friday to work on Saturday. Sturgill, in
essence, corroborated Turner's version.
Salyers indicated that he told Sturgill and Turner not to
curse, and whereas Sturgill then kept quite, Turner continued to
curse. Salyers indicated that he told Turner that if he (Turner)
continued to curse him, he (Salyers) would f
him. Salyers
said that Turner said "f--- you, Buck if you're going to fire me,
go ahead and fire me," and then he (Salyers} fired Turn.er
(Tr. 274). On cross-examination Salyers said that when Turner
said to him, "Buck you're a M. F." (Tr 328), it led to his
termination. In rebuttal, Sturgill and Turner denied that the
latter called Salyers a "M. F., 11 but they did not rebut Salyers'
testimony that Turner had said "f--- you. 11
Salyers indicated that the cursing
him by Turner was the
sole reason he f
Turner, Salyers further indicated
specif
that Turner was not fired for not having worked on
Saturday.
In this connection, McGuire corroborated that this was
what Salyers had said on'
1 30, when Turner was fired.
c.

Motivation

In evalua~ing whether the £
ing of Turner was motivated in
any part by his protected activities, i.e., complaints about
exposure to
t, it is not necessary to make a determination as
to whether Turner had been notified by Salyers
he had to
work on Saturday, and whether Salyers or Turner initiated
cursing, A determination of these matters does not have any
bearing on the main issue here , i.e., the nexus if any between
Turner's protected activities, and his firing.
I find that
1;
~cGuire was called by Salyers early that morning and did
subsequently report to work.

506

Salyers manifested a slight degree of animus toward Turner's
complaints about exposure to dust. However, the weight of the
evidence establishes that Turner continued to curse Salyers after
having been warned in this regard by the latter. I find that the
evidence establishes, accordingly, that Salyers wo~ld have fired
Turner in any event based on Turner's cursing him. I
Accordingly, I find that it has not been established herein that
Respondent discriminated against Complainant in violation of
Section 105(c) of the Act.
ORDER

It is hereby ORDERED that this case be DISMISSED.

~W~ger

Administrative Law Judge

Distribution:
Donald E. Earls, Esq., 940 Park Avenue, P. O. Box 710, Norton, VA
24273-0710 (Certified Mail)
Karen K. Bishop, Esq., P.
Mail)

o. Box 1438, Wise, VA 24293 (Certified

dcp

2;
This conclusion is not negated by the testimony of
Complainant's witnesses, that other employees had cursed Salyers.
I find this testimony alone insufficient to establish that Turner
received disparate treatment.
Specifically, the record fails to
establish that there were any specific instances in which other
employees had similarly cursed, not in jest, at Salyers after
having been warned in that regard, and that these employees were
not disciplined.

507

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

2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

MAR 2 91991
CIVIL PENALTY PROCEEDING

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

Docket No. WEVA 89-198
A. C. No. 46-01456-03826

v.
Federal No. 2 Mine
EASTERN ASSOCIATED COAL
CORPORATION,
Respondent
DECISION ON REMAND
Before:

Judge Weisberger
I.

on February 23, 1990, I issued a Decision in this case
wherein I found, inter alia, that Respondent's violation of
30 C.F.R. § 75.400 was not a result of its 11 unwarrantable
failure.'' On February 7, 1991, the Commission, pursuant to the
granting of Petitioner's Petition for Discretionary Review,
issued a Decision remanding the issue of unwarrantability
" . . . for further analysis and consideration" consistent with
its Decision (Eastern Associated Coal Corp., 13 FMSHRC ~~'
Docket No. WEVA 89-198, slip op., February 7, 1991).
On February 19, 1991,
a telephone conference call
initiated by the undersigned with Counsel for both Parties, the
latter were granted until March 12, 1991, to file Briefs.
Subsequently, pursuant to Respondent's request, which was not
objected to
Petitioner, the date to file Briefs was extended
to March 19, 1991. On March 14, 1991, Peti~ioner filed a Brief
on Remand.
Respondent filed a Brief on March 25, 1991.
II~

In its Decision, supra, sl
op. at 10, the Corrunission noted
as follows with regard to matters not addressed in my original
Decision:
Evidence seemingly unaddressed by the judge in his
analysis is relevant in considering the question of
unwarrantable failure.
The judge appears to have found
that a leak was the source of the problem. See
12 FMSHRC at 242. Thus, he apparently rejected the
testimony of Eastern 1 s witnesses that the most

508

plausible explanation for what occurred was either a
spill or overfill. The judge, however, made ho finding
concerning how long the leak had continued unabated.
If the leak had actually continued unabated from
February 6, as Merchant testified, a lack of care on
Eastern's part would appear to be present.
Tr. 205-06.
The area was fire-bossed daily and involved at least
12 to 15 inspections (preshift and onshift) by four or
five different people over the period February 6-8.
Tr. 209, 233, 235; R. Exh. 6.
(Emphasis added.)
The rationale for the remand by the Commission in its
Decision appears to be set forth as follows:
"The fact that the
judge did not reconcile his findings with respect to negligence
and unwarrantable
lure requires that we vacate his conclusion
that no unwarrantable failure existed and remand this proceeding
to the judge for further analysis and consideration." (Eastern
Associated, supra, slip op., at 10.)
·

III.
I have considered the arguments set forth in Respondent's
Brief. However, I have limited my analysis and decision to the
issues raised by the Commission in its rationale for the remand,
and in its discussion of the deficiencies in the original
Decision as set forth, infra, p. 1-2.
Upon further analysis of the record, I find it establishes
that Respondent was highly negligent with respect to the cited
violations.
The reasons for this conclusion are set forth in th2
original Decision (12 FMSHRC at 242).
Additionally, I note that
Merchant indicated that on the 2 days prior to February 8, the
date of the Citation at issue, the tipple was not leaking less.
Further, in
s regard, Merchant, the tipple operator,
testified as follows on direct examination:
Q.
The previous two days did you put in an amount that
was equal to the normal amount you would put in a
tipple that's running well?
You would put three to five cans in, which is from
15 to 25 gallons in per shift (Tr. 206).
Respondent did not adduce any testimony regarding the leak at the
tipp
for the period February 6-8.
Hence, based on the
testimony of Merchant that was not rebutted or impeached, I
conclude that the leak at the tipple continued unabated from
February 6.
Since, as noted by the Commission in its Decision,
(slip op, supra, at 10), the area was fire bossed daily and
involved at least 12 to 15 inspections by four or five people
over.the period February 6-8, I thus conclude that the evidence
establishes a significant lack of care on Respondent's part in
not detecting the leak.

509

For the above reasons, upon reconsideration, I conclude that
Respondent's high level of negligence reached the level of
aggravated conduct. As such, I find that the violation herein
was the result of Respondent's unwarrantable failure (see, Emery
Mining Corp., 9 FMSHRC 1997, 2004, (1987)); Youghiogheny & Ohio
Coal Co., 9 FMSHRC 2007, 2010 (1987)-}. -

ORDER
It is ORDERED that Citation No. 3100463 be converted to the
original Section 104(d)(2) withdrawal
der.

Avram eisberger
Administrative Law Judge
Distribution:
Glenn M. Loos, Esq.~ -Office of the Solicitor, u. s. Department of
Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Thomas L.
,
., 800 Laidley Tower, Post Office Box 1233,
Charleston, WV 25324 (Certified Mail)
dcp

510

ADMINISTRATIVE LAW JUDGE ORDERS

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

March 19, 1991
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING

.

v.

Docket No. WEST 90-320
A.C. No. 42-00121-03725
Docket No. WEST 90-321
A.C. No. 42-00121-03726

UTAH POWER AND LIGHT COMPANY,
MINING DIVISION,
Respondent

Deer Creek Mine
Docket No. WEST 90-322
A.C. No. 42-01944-03578
Docket No. WEST 90-323
A.C. No. 42-01944-03579
Docket No. WEST 90-324
A.C. No. 42-01944-03580
Cottonwood Mine

ORDER DENYING RESPONDENT'S MOTION TO REMAND
Respondent UPL's Motion to Remand (dated November 16, 1990)
the above five dockets (containing 30 challenged enforcement documents, i.e., Citations or Orders) to the Secretary of Labor
(MSHA) for recomputation (reassessment) of the proposed penalties
in accord with the Secretary's regulations (30 C.F.R. Part 100},
is opposed by the Secretary (Opposition to Motion to Remand dated
January 30 1990)0
Sumrnarv of Contentionsg
UPL

contends~

That the 30 proposed penalties were calculated on the
basis of rules that MSHA 0'unlawfully implemented without public
notice and comment as required by the Administrative Procedure
Act,m i.e., its Program Policy Letter P90-III-4. 1 Related to
l

After receiving a directive of the Circuit Court of Appeals
for the District of Columbia Circuit in Coal Employment
Project v. Dole, 889 F.2d 1127 CD.C. Cir. 1989) to do so,
MSHA promulgated its three-page MSHA Policy Program Letter
P90-III-4 (herein PPL) which issued and became effective
May 29, 1990, the stated purpose of which was to implement a
program for higher civil penalty assessments at mines with
an "excessive history" of violations.

511

this contention, is UPL's argument that MSHA did not follow its
own (pre-existing the PPL) regulations pertaining to penalty
assessment.
2.
The PPL exceeds the scope of the Court's Order in Coal
Employment Project.

3. MSHA's "excessive history" penalties under the PPL provisions are unlawfully retroactive since all but 1 of the 30 subject citations were issued prior to the effective date of the
PPL, May 29, 1990; the new PPL "policy" is detrimental to a mine
operator since the mine operator is deprived of a knowing choice
between contesting or paying earlier "single penalty assessments
and other violations."
MSHA contends~
L
The Commiss..ion lacks jurisdiction to order MSHA to reassess a proposed penalty.

2.
a.
The PPL was properly applied by MSHA in proposing
the penalties involved here because it is not subject to the
notice and comment provisions of the Administrative Procedure Act
(herein APA) o

b. Assuming arguendo that the "notice and comment" rerequirements of the APA apply to the PPL, the directive of the
Circuit Court in Coal Employment Project, supra, places the PPL
within the "good cause" exception [5 u.s.c. 553(b)(B)] which provides that the notice and comment provisions are not applicable
0
when the agency
good cause finds that notice and public
procedure thereon are impracticabler unnecessary 0 or contrary to
the public interestan 2
Co
As to 22 of the 30 subject citations and orders,
such were the subject of nspecial assessmentsn under 30 C.F.R.
0.5 and were proper and consistent with such regulation since
it provides that 8 some types of violations may be of such a
nature or seriousness that it is not possible to determine an
appropriate penalty under~v the regular assessment formula (Section 100.3) or the single penalty assessment formula (Section

QQ a 4) o Go

2

I subsequently conclude that the PPL complied with the triggering provisions of the "good cause" exception.
See also
Fn. 13u Secretaryvs Opposition dated January 30, 1991.

512

Ci)

Section 100.5 clearly provides that "MSHA may
elect to waive" the regular assessment formula
if it determines that conditions surrounding the
the violation warrant a special assessment.

Cii)

Types of violations qualifying for special
penalty assessment are identified in Section
100.S{h) as those involving:
a)
b)
c)

a high degree of negligence
a high degree of seriousness
unique aggravating circumstances. 3

3.
The "excessive history" provisions of the PPL were not
retroactively applied since:
a.
the critical time consideration is when the alleged
violations were assessed by MSHA, not when the citations were issued; when the 30 subject penalty proposals (assessments) were
issued the PPL provisions were in place.
b.
the "excessive history" provisions do not constitute
a 11 rule" within the meaning of the APA, and assuming arguendo
they were applied retroactively, since they were not a rule the
APA prohibi~ions against retroactivity do not apply.
Decision
MSHAus contention that the Commission lacks general jurisdiction to order the requested remand is rejectedo Absent change
of policy in the future 0 the Commission has ruled on this question
Thusu while the Commission has previously determined that
the Secretary 9 s penalty regulations are not binding on the Commission, Sellersburg Stone Co., 5 FMSHRC 287 <1985), aff'dff 736
Fo2d 1147 (7th Ciro 1984)v the Commission has specifically held
a

3

MSHA contends that the "special historyv• assessment provisions of the PPL qualify as implementation of the special
assessment provision under 100.5 since a mine operator's
history of numerous violations can be such as to constitute
"aggravating circumstances." Although not the crux of this
decision, I emphatically concur with this argument.

513

that a mine operator may, prior to hearing, raise and, if appropriate, be given the opportunity to establish, that in proposing
.Penalties the Secretary failed to comply with her Part 100 penalty regulations.
Youghiogheny & Ohio Coal Company, 9 FMSHRC
673, 679-680 (1987). Given the Commission's independent penalty
assessment authority, the scope of the inquiry is limited:
whether the Secretary had arbitrarily proceeded under a particular provision of her penalty regulations.
Secretary v. Missouri
Rock, Inc., 11 FMSHRC 136 (Feb. 1989). What the Commission actually stated in Youghiogheny, in terms of the purposes of and restrictions for remand is significant:
We further conclude, however, that it would
not be inappropriate for a mine operator prior to
a hearing to raise and, if appropriate, be given
an opportunity to establish that in proposing a
penalty the Secretary failed to comply with his
Part 100 pt;nalty regulations.
If the manner of
the Secretary's proceeding under Part 100 is a
legitimate concern to a mine operator, and the Secretary1 s departure from his regulations can be
proven by the operator, then intercession by the
Commission at an early stage of the litigation
could seek to secure Secretarial fidelity to his
regulations and possible avoidance of full adversarial proceedings.
However, given that the Secretary need only defend on the ground that he did
not arbitrarily proceed under a particular provision of his penalty regulations, and given the
Commission's independent penalty assessment authority" the scope of the inquiry into the Secretary 0 s
actions at this juncture necessarily would be
lirniteao
(Emphasis added)"

Summing up:
~"
The motion for remand must be made prior to a hearing to
obtain °possible avoidance of full adversarial proceedingsn and
to obtain Secretarial fidelity to assessment regulations;

2o
the Secretary need only defend on the ground that she
ITTdid not arbitrarily proceed under a particular provision~ of the
regulations1 and
3o
the scope of the inquiry, in view of the Commission's de
novo assessment authority, is limited.

514

Under its own rules announced in Youghiogheny, supra, is the
Commission's jurisdiction to remand to MSHA for penalty reproposal authorized, that is, did the Secretary (.MSHA) arbitrarily
proceed under the Part 100 regulations? Assuming for the sake of
argument that the Commission remand is found warranted under
Youghiogheny, whether such remand should be ordered in view of
the Circuit Court's pending jurisdiction over the questions would
seem to be a policy matter for the Commission which I do not directly entertain here. Nevertheless, the possibility is recognized that Commission remand might well turn--as UPL urges--on
the invalidation of the PPL, an action the Circuit Court has not
yet taken.
I am unable to conclude that the action of the Secretary in
proposing penalties calculated under the formula of the PPL is
arbitrary. It remains to be seen whether or not such formula
will ultimately be determined to be inconsistent with both
(a)

its Part lOQ regulations as they were interpreted prior
to the assertion of the Circuit Court's jurisdiction in
Coal Employment Project, and

(b)

the Circuit Court's directive and mandate in Coal Employment Project.

What is clear is that the PPL is MSHA's direct attempt at
compliant response, i.e., a reinterpretation of certain of its
Part 100 regulations, to the Court's directives in Coal Employment Project.
See Per Curiam Opinion (No. 88-1708) filed
April 17, l990u in this section (Ex. R-8 to UPL's Memorandum)e
wherein in the Court indicated that it was dissatisfied with
MSHAis interim regulation (prior to the PPL)~
In particularv we are troubled by the scenario of
repeated low negligence violations. By our reading of the MSHA interim regulation, unless MSHA
determined that such repetition amounted to high
negligence" the offending mine operator would be
assessed only a series of single penalties.so•
In light of MSHAus substantial discretion in determining what constitutes "high negligence," we
fear that even a series of identical non-S&S violations may not require MSHA to invoke the violation history criterion and may not generate more
than a single penalty each time. Thus MSHA 9 s 11 high
negligence" requirement seems inconsistent with
the concerns we voiced ••• in our opinion that even a
string of non-S&S violations would generate only a
series of $20 penalties.

515

Subsequent to the Court's Per Curiam Opinion, the PPL was
issued. Thereafter, the mine operator's motion to remand to MSHA
for reassessment in this matter (and at least two other such motions in similar circumstances before other administrative law
judges) have been filed.
There is no question but that the penalty assessments here
under the PPL are calculated differently from and are higher (the
augmentation being based on increases sterruning from {"excessive
history" calculations) than they would have been under pre-Coal
Employment Project and pre-PPL Part 100 formulations.
Thus-;-tile
question of arbitrariness--and Corrunission jurisdiction to remand
--appears to rest on whether Cl} the Court's assertion of jurisdiction over MSHA and its penalty assessment regulations, and
(2) its resultant directives to MSHA, justify such changes.
There is no reason to conclude that MSHA's promulgation and application of the PPL was instigated by any consideration other
than the Circuit Court 1 s mandate. 4 The increases in UPL 1 s 30
assessments here result from the Court's instructions to MSHA.
In such circumstances can MSHA's complained-of action be said to
be arbitrary? 5

4

The authority of the federal court, once having been exercised in a particular matter, guards against deviation. See
City of Cleveland v. Federal Power Commission, 561 F.2d 3~
(D.C. Cir. 1977).

5

The word ~arbitrary" is not synonymous with "correct."
American Petroleum Institute v. E.P.A. 9 661 F.2d 340v 349
(5th Ciro 1981)0 Blackgs Law Dictionary (5th Ed. 1979)
defines aarbitrary~ as follows:
Arbitrary. Means in an "arbitrary" manner, as
fixed or done capriciously or at pleasure. Without
adequate determining principle9 not founded in the
nature of thingsu nonrational, not done or acting
according to reason or judgment1 depending on the
will aloneu absolutely in power; capriciously; tyrrannical0 despotic; Cornell v. Swisher County, Tex.
Civ. APP•u 78 S.W.2d 1072u 1074. Without fair, solidu and substantial cause~ that is, without cause
based upon the law, U.S. v. Lotempio, D.C.N.Y. 58
F.2d 358, 359~ not governed by any fixed rules or
standard. Ordinarily, "arbitrary" is synonymous
with bad faith or failure to exercise honest judgment and an arbitrary act would be on performed

516

I think not and, in agreement with the Secretary's welldelineated position, I find that it was proper and not arbitrary
for the Secretary in this case, in response to the Court's directive in Coal Employment Project to consider UPL's "excessive
history" of violations, not only in determining whether 8 of the
30 violations qualified for single penalty assessment, but also
whether the remaining 22 violations should be assessed under the
special assessment formula of Section 100.5 instead of the regular assessment formula of Section 100.3. To do otherwise would
result in inconsistent enforcement of the Mine Act:
recividous
mine operators (or operators with otherwise unsatisfactory compliance track records) would be able to evade the consequences
of their "excessive history" of violations solely because their
conduct was too serious to be considered for a single penalty
assessment. Application of the Secretaryvs excessive history
policy only to violations whch might qualify for single penalty
assessment, and not to violations which otherwise would be reguarly assessed, would result in a situation where the more serious
violations (i.e.v the regularly assessed violations) are treated
more leniently than vfolations which pose a lesser threat to the
miners 1 safety and health <i.e., the singly assessed violations).
Given the Court's concern in Coal Employment Project about assigning proper weight to an operator's history of violations and
the need for civil penalties to serve as a deterrent to future
violative conduct, the Secretary's policy of considering whether
an operator's history is sufficient to raise a regular assessment
is consistent with the holding in Coal Employment Project as well
as with the Mine Act.

(continued from previous page)
without adequate determination of principle and one
not founded in nature of things"
Huey Ve Davisu
Tex Ci v " App 5 5 6 S " W 2 d 8 6 0 u 8 6 5 "
o

o

o

Certainlyu MSHAu in attempting to carry out the
rcuit court's willff cannot be accused of bad
faith or acting in a capriciousff tyrannicalv irrational e or absolutistic wayo Whether or not it is
determined in the future that it proceeded at the
time of its passage of the PPL in accordance with
all of the numerous requirements being placed on
it from several different directions begs the question.
There is no basis to find that it acted without substantial cause or without good reasons.

517

The related argument of UPL bears scrutiny.
At page 9 of
the Memorandum supporting its Motion, UPL contends:
The computations of the proposed penalties for
the 22 alleged S&S violations have characteristics
of both regular and special assessments, but are in
fact neither.
The proposed penalties are based in
part on penalty points computed by using the criteria
in 30 C.F.R. § 100.3, like the regular assessment,
including penalty points for history of previous violations, with the unenhanced proposed penalties reported on the standard MSHA Form 1000-179, as though
they were regular assessments . • • • Yet, like special assessments, these proposed penalties come with "Narrative Findings for a Special Assessment," which expressly waive the regular assessment formula MSHA in
fact just used, invoke the special assessment regulation, and state that the penalty amount has been increased by a certain percentage for "excessive history." ••• ~hus, rather than "waive the regular assessment formula (§ 100.3)," and impose a special assessment as § 100.5 provides where "it is not possible to
determine an appropriate penalty under [the regular
assessment formula or the single penalty provision),"
MSHA instead did compute the penalty under the regular
assessment formula but then also added to it an additional penalty under § 100.5.
This contention is found hypertechnical and is rejected.
Specifically, it appears that MSHA, following the temporary
interim procedure outlined in the PPL did for all intents and
purposes waive the regular assessment formula and did impose a
special assessment under Section 100o5o
The PPL itself indi1
cates g
n MSHA has elected to waive the regular formula assessment
and assess them under the special assessment provisions of 30
C.F.R. § 100.5. 0
The clear--and stated--purpose of the PPL is to
implement a program for higher civil penalties at mines with an
excessive history of violations and this directly deals with the
concerns of the DoCo Circuit Court in Coal Employment Projecte
suprao
It is found that the special-history assessment provisions
of the PPL fall within the special penalty assessment formula of
C.F.Ro § 100.So The Secretary 1 s assessing 22 of the 30 violations at issue under the special penalty assessment provisions of
Section 100.5 is consistent with her 30 C.F.R. Part 100 regulations.
Thus Section 100.5 specifically provides that "MSHA may
elect to waive the regular assessment formula (§ 100.3) or the

518

single assessment provision (§ 100.4) if the Agency determines
that conditions surrounding the violation warrant a special assessment."
(Emphasis added).
Some of the types of violations which the Secretary has
identified as qualifying for a special penalty assessment appear
in Section 100.S(h), to wit:
"Violations involving an extraordinarily high degree of negligence or gravity or other unique
aggravating circumstances."
(Emphasis added).
The special-history assessment provisions challenged by UPL constitute a proper
method for implementing this special category.
The special-history provisions of the PPL were reasonably adopted by the Secretary to ensure that the penalty fits the infraction where an operatorv s history of violations is such that it properly constitutes an uaggravating circumstance." It is held that "excessive
history" (like excessive negligence and excessive gravity) fits
within the category of "aggravating circumstances" and that there
exist reasoned bases for this judgment of the Secretary.
Finally, and one~ again assuming arguendo, that the "notice
and comment" provisions of the APA apply to the PPL, since the
PPL accomplishes the result mandated by Coal Employment Project,
to properly consider the operator's history of violations--the
PPL falls within the "good cause 11 exemption of the APA.
Specifically, the notice and comment provisions of the APA do not apply when the agency, as here, "for good cause finds (and incorporates the finding and a brief statement of reasons therefor in
the rules issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest."
5 UoS.C. § 553(b)(B).
(Emphasis added).
See Mid-Tex Elec. Coopv Inc.p Vo F.E.R.C.v 822 F.2d 1123 (D.C. Cir. 1987), involving as here" an niinterim 11 order of a temporary nature.
In the
instant case 7 the overwhelming fact of the D.C. Circuit Court 1 s
control over and directions to MSHA would seem sufficient to
trigger the applicability of the "good cause" exemption of the
APA to the PPL, and, if sufficient for that purpose, would negate
the presence of caprice, whim, bad faith, and arbitrariness in
MSHA's issuance of the PPL.
Conclusion
There is no basis asserted in the record to find that the
Secretary has proceeded arbitrarily under any provision of her
penalty regulations. As the Secretary argues, this case involves
the manner in which MSHA "weighs 11 the "history of violations"
criterion--a mandatory statutory penalty assessment factor--and
UPL's objection actually goes to the weight assigned by MSHA to
an assessment criterion (the history criterion) rather than to

519

the arbitrary failure of the Secretary CMSHA) to follow her
regulations. Respondent's motion is found to lack merit. 6
ORDER
The Commission's standard for remand of the Secretary's penalty proposals for recomputation not having been met by Respondent UPL, its motion therefor is DENIED.

c?J./e~~J ~' ~J:d?t j'J

r

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Carl c. Charneski, Esq., Edward H. Fitch, Esq., Office of the
Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Suite
423, Arlington, VA 22203
Jo Michael Klise, Esq., Thomas C. Means, Esq., CROWELL & MORING,
1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505

6

In failing to obtain remand, UPL is not left without substantial remedy. Independent de novo penalty evaluation
is achievable before the Commission, should a&~inistrative
or pre-trial settlement negotiation with MSHA not mitigate
penalty levels. As to the propriety of the PPL penalty
conformations, such are subject to challenge before the
federal appellate court. Both forums presently have active
jurisdiction for these respective purposes.

520

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

22041

MAR 19 199\
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-171
A.C. No. 46-03805-03968

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
PA~TIAL

Before:

SETTLEMENT DECISION

Judge Koutras
Statement of the Case

This proceeding concerns civil penalty proposals 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), seeking civil penalty assessments for three alleged
violations of certain mandatory safety standards found in
Parts 75 and 77, Title 30, Code of Federal Regulations. The
respondent filed a timely contest and the case was scheduled for
hearing in Morgantown, West Virginia, on March 5, 1991. However,
the case was stayed on February 8, 1991, at the request of the
petitioner pending a Commission decision in a related matter
dealing with mandatory safety standard 30 C.F.R. § 77.404(a), the
standard relied on by the inspector when he issued two of the
contested citations in this case.
By motion received on February 25, 1991, and filed by the
petitioner pursuant to Commission Rule 30, 29 C.F.R. § 2700.30,
the parties seek approval of a proposed settlement of contested
section 104(d) (2) "S&S 11 Order No. 3117257, issued on January 11,
1990, and citing an alleged violation of mandatory safety
standard 30 c.F.R. § 75.305. The parties assert that the
proposed settlement does not involve the pending contested
citations for alleged violations of section 77.404(a), and that
the stay order with respect to those citations remains in effect.

521

Discussion
In support of the proposed settlement of Order No. 3117257,
the petitioner has submitted information pertaining to the six
statutory civil penalty criteria found in section llO(i) of the
Act. The petitioner has also submitted a full discussion and
disclosure as to the facts and circumstances surrounding the
issuance of the order. The petitioner asserts that after further
investigation of the factual circumstances surrounding the
violation, it has agreed to modify the contested section
104(d) (2) order to a section 104(a) 11 S&S" citation without a
finding of unwarrantability. The petitioner has also agreed that
the initial proposed civil penalty assessment of $395, should be
reduced to $200, and it concludes that the proposed settlement
and payment of $200 is reasonable and will serve to effect the
intent and purposes of the Act.
Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the motion to approve
the proposed settlement of the order in question, I conclude and
find that the proposed settlement disposition is reasonable and
in the public interest. Accordingly, the motion for partial
settlement filed in this case IS GRANTED, and the settlement IS
APPROVED.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $200 in satisfaction of the modified section
104(a) 11 S&S 11 Citation No. 3117257, 30 C.F.R. § 75.305.
Payment
is to be made to MSHA within thirty (30) days of this partial
settlement decision and order, and I reserve final disposition of
the matter until payment is made in compliance with this order.
With regard to the remaining two contested citations for
alleged violations of 30 C.F.R. § 77.404(a) (Citation
Nos. 3112059 and 3112060), the previously issued Order Staying
Proceeding February 8, 1991,
pending further
notice.

Distribution:
Glenn M. Loos, Esq., Office of the Solicitor, U.S. Department of
Labor, Ballston Towers #3, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)
Rebecca J. Zuleski, Esq., Furbee, Amos, Webb & Critchfield,
Suite 4, 5000 Hampton Center, Morgantown, ii/V 26505
(Certified Mail)
522