November and December 2018
TABLE OF CONTENTS

ADMINISTRATIVE LAW JUDGE DECISIONS
11-15-18

PERFORMANCE CONTRACTING
INC.

WEST 2018-0339

Page 1467

11-29-18

MARTIN MARIETTA MATERIALS
SOUTHWEST, INC.

CENT 2018-0179

Page 1478

12-07-18

SIMS CRANE

SE 2017-0097

Page 1494

12-10-18

ROBERT THOMAS v.
CALPORTLAND COMPANY

WEST 2018-0402 DM Page 1503

12-12-18

MARTIN MARIETTA MATERIALS
SOUTHWEST, INC.

CENT 2018-0228

Page 1520

12-12-18

CACTUS CANYON QUARRIES,
INC.

CENT 2018-0243

Page 1529

12-12-18

INDUSTRIAL PROCESS
EQUIPMENT CONSTRUCTORS

WEST 2018-0557-RM Page 1540

12-14-18

KENAMERICAN RESOURCES, INC. KENT 2013-0211

Page 1544

12-28-18

POLAND SAND & GRAVEL, LLC

Page 1558

YORK 2017-0096

ADMINISTRATIVE LAW JUDGE ORDERS
11-08-18

SEC. OF LABOR O/B/O JASON
WYLIE v. ALLEGHENY MINERAL
CORPORATION
i

PENN 2018-0158-DM Page 1571

11-30-18

SEC. OF LABOR O/B/O JUSTIN
HICKMAN v. HUBER
CARBONATES, LLC

LAKE 2018-0387-DM Page 1576

12-14-18

MARSHALL JUSTICE v.
ROCKWELL MINING, LLC

WEVA 2018-697-D

12-26-18

SEC. OF LABOR O/B/O DELBERT
LEIMBACH v. HUBER
CARBONATES, LLC

LAKE 2019-0106-DM Page 1589

ii

Page 1582

No case review was granted during the months of November and December 2018.

Review was denied in the following case during the month of November 2018:
Secretary of Labor v. Original Sixteen to One Mine, Inc., Docket No. WEST 2017-546, et al.
(Judge Moran, September 13, 2018)

iii

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

November 15, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 2018-0339
A.C. No. 04-04075-461058

v.
PERFORMANCE CONTRACTING INC.,
Respondent.

Mine: Permanente Cement Plant Quarry

DECISION
Appearances:

Jessica M. Flores, Veronica Melendez, Office of the Solicitor, U.S.
Department of Labor, San Francisco, California, for Petitioner
Jason J. Curliano, Laura Van Note, Buty & Curliano LLP, Oakland,
California, for Respondent

Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, pursuant to the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. §801.1 This case involves two
section 104(a) citations issued to Performance Contracting Inc. (“PCI” or “Respondent”) over
the course of a routine multi-week inspection at the Permanente Cement Plant Quarry
(“Quarry”).
A hearing was held on September 6, 2018, in San Jose, California. MSHA Inspector Julie
Hooker and Lehigh Southwest Mine Company Safety Manager Eric Powell testified for the
Secretary. PCI General Superintendent of Scaffolding Lee McFarlane and forklift operator
Stephen Meneses testified for Respondent. The parties agreed to the following stipulations of
fact in their prehearing statements:

1

In this decision, the parties’ Joint Stipulations, the transcript, the Secretary’s exhibits,
and Respondent’s exhibits are abbreviated as “Jt. Stip. #,” “Tr.,” “Ex. S–#,” and “Ex. R–#,”
respectively.

40 FMSHRC Page 1467

1. The Federal Mine Safety and Health Review Commission (“Commission”) has
jurisdiction over this proceeding under Section 105 of the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 815 (the “Mine Act”).
2. Lehigh Southwest Cement Co., Permanente Cement Plant & Quarry, located in
Cupertino, California, is a “mine” as that term is defined in Section 3(h)(1) of the Mine Act,
30 U.S.C. § 802(h)(1)(a).
3. Performance Contracting Inc., (“Respondent”) is an “independent contractor performing
services” for Lehigh Southwest Cement Co., at the Permanente Cement Plant and Quarry and
thus an “operator” as that term is defined in Section 3(d) of the Mine Act, 30 U.S.C. §
802(d).
4. Mine Safety & Health Inspector (“MSHI”) Jerry D. Hulsey acted in his official capacity
as an Authorized Representative of the Secretary of Labor when he issued Citation Number
8991596.
5. MSHI Julie Hooker acted in her official capacity as an Authorized Representative of the
Secretary of Labor when she issued Citation Number 9377099.
6. The citations that are the subject of this proceeding were properly served upon
Respondent, as required by the Mine Act and were properly contested by Respondent.
7. Without Respondent admitting the propriety or reasonableness of the penalties proposed
herein, the penalties proposed by the Secretary, if affirmed, would not impair Respondent’s
ability to remain in business.
8. Respondent demonstrated good faith in abating the alleged violations.
9. At all times relevant to this proceeding, the Lehigh Southwest Cement Co., Permanente
Cement Plant & Quarry mine produced products that entered into interstate commerce or had
operations or products which affected interstate commerce within the meaning and scope of
Section 4 of the Act.
See Jt. Stip. At hearing, the parties agreed to make closing arguments at the hearing in lieu of
submitting post-hearing briefs. Based upon the parties’ stipulations and my review of the witness
testimony and of the entire record, I make the following findings.
II. LEGAL PRINCIPLES
A. Establishing a Violation
The Commission has long held that “[i]n an enforcement action before the Commission,
the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9

40 FMSHRC Page 1468

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The
Commission has described the Secretary’s burden as:
The burden of showing something by a “preponderance of the evidence,” the most
common standard in the civil law, simply requires the trier of fact “to believe that
the existence of a fact is more probable than its nonexistence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSRC at 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138 (May 1984).
If the Secretary has established facts supporting the citation, the burden shifts to the
Respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321,
327 (March 2001) (ALJ).
B. Significant and Substantial
A violation is significant and substantial (S&S), “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum
Co., 3 FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that 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. Mathies Coal Co., 6 FMSHRC
1, 3–4 (Jan. 1984).
The Commission has held that the second element of the Mathies test addresses the extent
to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC
2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of the occurrence of the
hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary
must prove there was a reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West
Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32
FMSHRC 1257, 1280–81 (Oct. 2010). Evaluation of the four factors is made assuming continued
normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).

40 FMSHRC Page 1469

C. Negligence
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the violative condition
without mitigating circumstances; moderate negligence as actual or constructive knowledge of
the violative condition with mitigating circumstances; and low negligence as actual or
constructive knowledge of the violative condition with considerable mitigating circumstances. 30
C.F.R. § 100.3: Table X.
The Commission and its judges are not bound to apply the part 100 regulations that
govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy,
Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), citing Brody Mining, LLC, 37 FMSHRC 1687,
1701–03 (Aug. 2015). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir.
2016).
D. Penalty
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Lehigh Southwest Mine Company owns and operates the Permanente Cement Plant
Quarry (“Quarry”) located in Cupertino, California. PCI is an independent contractor that
provides year-round scaffolding construction and moving services throughout the Quarry. Tr. 51,
61. PCI provides a significant amount of additional scaffolding during the Quarry’s “shutdown

40 FMSHRC Page 1470

period,” wherein the Quarry closes for a couple of weeks each year to perform extensive
maintenance. Tr. 50-51, 61. PCI stores the extra scaffolding in select areas across the mine to
allow for easier transport. Tr. 61, 75. On January 23, 2018, during one such shutdown period,
MSHA Inspectors Jerry Hulsey, Julie Hooker, and Jason Geno arrived at the Quarry to conduct a
routine inspection. Tr. 16, 51. The inspectors thereafter separated to inspect different areas of the
Quarry. Tr. 20.
A. Citation No. 8991596
On January 23, 2018, Inspector Jerry Hulsey began his inspection of the preheating tower
accompanied by Quarry Safety Manager Eric Powell.2 Tr. 52. Hulsey noticed a pile of refractory
material that lay partially on top of stored scaffolding equipment on the sixth floor of the tower.
Ex. S–2. The material measured approximately two feet high and three to four feet wide, and was
taped off and tagged by Lone Star, another contractor performing services at the tower. Ex. R–A;
S–2; Tr. 53, 64-65. Powell and Hulsey also observed footprints in the material, though neither
reportedly observed any miners in the area. Tr. 54, 62. According to Powell, Hulsey concluded
that the scaffolding stored in the area indicated that PCI was working there and was responsible
for the buildup. Tr. 53-54, 62. Hulsey issued Citation No. 8991596, which alleged:
There is a build-up of material in the passageway at the scaffolding staging area
on the 6th floor of the pre-heat tower, creating a lost (Sic.) of footing hazard. The
uneven sloped material build-up is about 5 feet long ranging from 2 inches high to
30 inches high. This condition is behind an area that has red colored danger tape
around it with a sign warning of the tripping hazards. There are numerous foot
prints noted going up and over the build-up material. Miners accessed this area to
store scaffolding material.
Ex. S–1. Hulsey designated the citation S&S, reasonably likely to result in lost workdays or
restricted duty, and the result of Respondent’s low negligence. The Secretary assessed a penalty
of $118.00.
PCI challenges the fact of violation and the Secretary’s S&S and negligence designations.
PCI argues that the Secretary is unable to meet his burden of proof because Inspector Hulsey did
not testify as to his reasoning for issuing the citation to PCI. It contends that the evidence does
not prove that PCI’s employees created the alleged violation or were in the area at the time of the
inspection. Tr. 109. PCI instead argues that the condition was created by Lone Star. Tr. 64-65,
109.
1. The Violation
30 C.F.R. § 56.20003(a) requires that “[w]orkplaces, passageways, storerooms, and
service rooms shall be kept clean and orderly” at all mining operations. The Secretary must
2

Eric Powell is the Safety Manager for the Lehigh Southwest Mine Company. Tr. 49. His
responsibilities include ensuring all employees are properly trained on safety and accident and
injury prevention, and to accompany MSHA and OSHA during inspections. Id.

40 FMSHRC Page 1471

establish that (1) the cited area is a “workplace,” “passageway,” “storeroom,” or “service room,”
and (2) the area is not being kept clean and orderly. See Tim M. Ball, employed by Mountain
Materials, Inc., 38 FMSHRC 1799, 1808 (July 2016) (ALJ); Ames Construction, 37 FMSHRC
536, 540 (Mar. 2015) (ALJ).
The photographs clearly show that the sixth floor area was a workplace and storage area
that was not kept clean and orderly. Ex. S–2. The buildup of material was located where
scaffolding is stored and where miners travel, measured approximately two feet high, and
consisted of a plank that created a tripping hazard. Ex. S–2; Tr. 64-65. However, the
photographic evidence and testimony do not prove that PCI’s employees generated the pile or
were even in the area at the time of the inspection. Inspector Hulsey was not present at the
hearing and did not testify as to how he concluded that PCI was working in the area at the time,
that the footprints belonged to a PCI employee, or why Lone Star was not responsible for
creation or maintenance of the condition.
The Secretary contends that Hulsey rationally inferred PCI’s culpability based on the
scaffolding equipment stored on the sixth floor and the footprints through the buildup. Tr. 10405. However, the Secretary does not provide sufficient evidence to place any PCI employees on
the sixth floor of the preheating tower on the day of the alleged violation. Powell testified that he
did not see any PCI employees during the inspection, and that Hulsey did not see or talk to any
other employee while Powell was in his presence. Tr. 62. Lee McFarlane, PCI’s general
superintendent of scaffolding, testified that PCI stored scaffolding yards on the third floor and
the sixth floor of the preheated towers to assure ease of access and movement of equipment. Ex.
R–B; Tr. 74-76. He verified time and material reports that show PCI’s employees only worked
on the third floor of the preheating tower on January 23, and thus likely used the third floor
storage cache instead of climbing multiple stairways to access the sixth floor cache. Ex. R–C; Tr.
83. The photographs support McFarlane’s testimony, as they show that the refractory material is
piled high on top of and against the scaffolding, indicating the housekeeping issue developed
well after the scaffolding on the sixth floor was moved. Ex. S–2.
The evidence also strongly supports Respondent’s claim that the refractory pile was
generated and taped off by Lone Star on the day of the inspection. The Secretary did not produce
any evidence suggesting that PCI’s services generated refractory material, and Powell
unequivocally stated PCI’s work at the Quarry did not produce such material. Tr. 60. He stated
that Lone Star likely generated the refractory material through its work in the tower. Tr. 60-61.
Moreover, the tag on the tape surrounding the buildup read “Lone Star” and was dated January
23, thereby supporting the assertion that Lone Star taped off the area on the day of the
inspection. Ex. R–A; Tr. 64-65. Since Lone Star generated the refractory material and was
working near the sixth floor at the time, I find it reasonable to infer that Lone Star caused the
condition and one of its employees created the footprints while taping off the area.
The Secretary points to this court’s decision in NALC, LLC, 40 FMSHRC 779 (May
2018) (ALJ), to argue that photographs of footprints are sufficient to infer that an operator
committed a housekeeping violation, even if the inspector did not personally observe a miner
walking in the area. Tr. 105. In that case, the court deferred to the Inspector’s credible testimony
that footprints on a stairway covered in loose material belonged to a miner rather than a third

40 FMSHRC Page 1472

party trespasser. 40 FMSHRC at 785. The Inspector testified that miners frequently traveled in
that area during operation hours and that the Foreman told him that he previously instructed
miners to clean the area. Id. The court found that the Inspector’s inference was reasonable even
though he could not be absolutely certain who made the footprints, and rejected the operator’s
contention that a third party trespasser created the footprints because it presented no evidence to
support that theory. Id.
Unlike in NALC, Inspector Hulsey did not testify as to why he concluded that PCI was
responsible for the housekeeping violation in light of ample evidence suggesting that Lone Star
worked in the area and taped off the pile of refractory material. The Secretary’s other witnesses
were unable to support Hulsey’s reasoning. Tr. 46, 64-65. Inspector Hooker was not present
during the inspection and had no firsthand knowledge of the condition beyond the photographs
and what she heard in the post-inspection conference. Tr. 20, 46. Although Powell accompanied
Hulsey during the inspection and personally observed the alleged violation, he could not speak to
Hulsey’s reasoning in light of the facts implicating Lone Star. Tr. 60. The photographs of the
footprints here thus do not justify the same logical inference made in the NALC case, given the
clear evidence of Lone Star’s activity above and near the housekeeping violation. Absent
Hulsey’s testimony, the court cannot rationally infer that PCI violated the standard.
Accordingly, I vacate the citation and do not address the Secretary’s gravity, negligence,
or penalty designations.
B. Citation No. 9377099
On January 31, 2018, Inspector Julie Hooker3 conducted an inspection at the finish mill
area of the mine, accompanied by Eric Powell. Tr. 22. The finish mill area was busy with
activity, and Hooker observed foot traffic in the area during her inspection, as well as foot and
vehicle traffic in the area the week prior. Tr. 24-25, 27. While in the nearby pump house
building, Hooker noticed a Genie telehandler (“forklift”) reverse without the activation of an
audible backup alarm. Tr. 23. The forklift measured about 6 feet 4 inches in height, weighed
approximately 10 tons, and was transferring scaffolding material a distance of approximately 20
feet onto a truck. Tr. 23, 25, 27, 93. Hooker approached the forklift, identified herself to the
driver, and tested the backup alarm twice manually. Tr. 24. The alarm failed to activate during
either test. Id. Stephen Meneses, the forklift operator, informed Hooker that he was aware that
the backup alarm was not working for a couple of days, but that he had not reported it to his
supervisor. Tr. 27-28. She issued Citation No. 9377099, which alleged:
The automatic reverse-activated signal alarm on the Genie GH-5519 forklift
located on the mine was not maintained in functional condition. The alarm to
indicate the forklift was in reserve (Sic.), failed to activate when tested. Foot and
3

Inspector Hooker has served as an MSHA Inspector since November 2012. Tr. 15. She
spent 25 years in the military performing health and safety inspections on mobile equipment and
buildings. Id. She conducted safety meetings and ensured compliance with federal safety
regulations. Id. She also performed similar work for the United States Agricultural Research
Service and Forest Service prior to starting with MSHA. Id.

40 FMSHRC Page 1473

vehicle traffic was observed in the area. This condition exposes miners working
or traveling around this condition to a crushing standard.
Ex. S–4. Inspector Hooker designated the citation S&S, reasonably likely to result in a fatality,
and the result of Respondent’s moderate negligence. Id. PCI quickly called the company from
which it rented the vehicle to repair the backup alarm and terminate the citation. Tr. 40-41, 85.
The Secretary assessed a penalty of $638.00.
PCI challenges the Secretary’s S&S and negligence designations. PCI contends that the
violation is not S&S because no miners were working near the forklift. Tr. 111. It argues that the
forklift operator did not see any other individual in the vicinity of the forklift and contends that
Inspector Hooker was unable to give an exact measurement as to the nearest miners in order to
justify the S&S designation. Id. PCI disputes the moderate negligence designation because the
operator only drove the forklift for ten to fifteen minutes, covered a short distance, and honked
the horn prior to backing up. Tr. 110-111.
1. The Violation
30 C.F.R. § 56.14132(a) provides that “[m]anually-operated horns or other audible
warning devices provided on self-propelled mobile equipment as a safety feature shall be
maintained in functional condition.” The Commission has defined “maintain” in the context of
this standard to require that horns or audible warning devices must function at all times unless
the equipment has been taken out of service for repair. Beverly Materials, LLC, 37 FMSHRC
1857, 1858 (Sept. 2015) citing Wake Stone Corp., 36 FMSHRC 825, 827 (Apr. 2014). The
standard therefore “imposes a continuing responsibility on operators to ensure that safety alarms
do not fall into a state of disrepair.” Wake Stone Corp., 36 FMSHRC at 827.
The parties do not dispute that the forklift was in operation and that its back-up alarm did
not work at the time of the inspection. Tr. 110. Inspector Hooker observed the forklift reverse
without any alarm function activating. Tr. 24. Powell did not hear an alarm, and Meneses
acknowledged that the alarm was inoperable. Tr. 23, 98. The alarm also failed to work twice
when Inspector Hooker manually tested the system. Tr. 24. Since the forklift was in service and
the backup alarm failed to function, I affirm the fact of violation. See Wake Stone Corp., 36
FMSHRC at 827.
2. Significant and Substantial
Inspector Hooker designated the citation as S&S and reasonably likely to be fatal. I have
already found that PCI violated § 56.14132(a), thereby satisfying the first element of the Mathies
test.
In regards to the second Mathies element, the Secretary must demonstrate the reasonable
likelihood of the occurrence of the hazard that § 56.14132(a) is designed to prevent. Newtown
Energy, Inc., 38 FMSHRC at 2037. Section 56.14132(a) imposes a continuing responsibility
upon operators to ensure that audible safety alarms work at all times to prevent individuals or
other vehicles from being struck by reversing equipment without warning. Rock Products, Inc.,
40 FMSHRC 808, 820 (May 2018) (ALJ). I find that that the non-functional backup alarm was

40 FMSHRC Page 1474

reasonably likely to contribute to the forklift’s accidental contact with a miner or other
equipment. The forklift was performing work that required reversing the vehicle in a busy area of
the mine. Tr. 25, 27. Inspector Hooker observed miners approximately 50 to 75 feet away
walking toward the forklift while it was in operation. Tr. 34. The alarm was inoperable for at
least two days. Tr. 27-28. PCI’s failure to maintain the forklift’s backup alarm therefore
contributed to the reasonable likelihood that miners traveling through the finish mill area on foot
or in a vehicle would be struck by the reversing forklift without any warning.
I reject PCI’s contention that the violation was not likely to contribute to the collision
hazard because the inspector could not provide the exact distance of the nearest miners to the
forklift. An exact measurement of the distance from the forklift to the nearest miner on foot is
not necessary to demonstrate that the broken backup alarm contributed to the reasonable
likelihood of a miner being accidently struck by the vehicle. I credit Inspector Hooker’s
testimony that the miners were walking nearby and that she also observed miners traversing the
finish mill area the week prior to her inspection. Tr. 27-28. The Secretary has met his burden of
proof for the second Mathies element.
To satisfy the third Mathies element, the Secretary must show that the hazard was
reasonably likely to result in an injury. Newtown, 38 FMSHRC at 2038. The Secretary argues
that hazard of inadvertent contact with individuals or vehicles was reasonably likely to occur
given the size of forklift and how busy the finish mill area was in the context of continued
mining operations. Tr. 25, 27-28. The forklift weighed close to a ton and was operating in an
area where miners frequently worked and traveled. Assuming the hazard has been realized, a
collision between the forklift and any miner on foot or driving a similarly sized vehicle was
likely to result in injuries. Tr. 27. The Secretary has therefore met the minimum threshold for
proving the third element of the Mathies test.
Regarding the fourth Mathies element, the Secretary must show that the injury resulting
from the hazard is reasonably likely to be serious. Newtown, 38 FMSHRC at 2038. Here, Hooker
credibly testified that the size and weight of the forklift would likely lead to fatal blunt force
crushing, breaking or trauma injuries were a miner to be struck by the reversing vehicle. Tr. 27. I
credit Hooker’s testimony and find that any injury resulting from the hazard could reasonably
likely lead to fatal injuries.
For the reasons above, I affirm the Secretary’s S&S and gravity determinations.
3. Negligence
I find that the violation was the result of PCI’s moderate negligence. The forklift was in
operation and the backup alarm was not functional. Tr. 23. Meneses admitted at the inspection
and again at hearing that he was aware that the alarm was not functional for at least two days but
that he did not report the defect to a supervisor until he received the citation. Tr. 27-28, 99.
Although Respondent claims that Meneses was only operating the vehicle for a short period on
the day of the violation, his decision not to notify management and to continue operating the
forklift without a functional backup alarm indicates that at least one PCI employee knew of the
condition but failed to address it.

40 FMSHRC Page 1475

Although Meneses testified that he could clearly see out of the rear of the forklift and that
he honked the horn twice prior to reversing in compliance with PCI’s operation policy, I do not
find that this is a mitigating factor meriting a reduction from moderate negligence. Meneses and
Hooker offer conflicting testimony as to the forklift’s rear visibility. Hooker testified that at the
very least, a blind spot exists on the right rear side of the forklift when the boom is up. Tr. 25, 26.
Even assuming that the blind spot was minimal or nonexistent and that the operator diligently
honked prior to reversing, these measures would not adequately warn other miners or vehicles
driving by while the forklift was actively reversing to use caution in the area. I affirm the
moderate negligence designation.
4. Penalty
The Secretary proposed a penalty of $638.00. PCI’s history of previous violations is low,
and the parties stipulated that the Secretary’s proposed penalty amount is consistent with the
violation and would not affect PCI’s ability to remain in business. See Jt. Stip. 7. I found that the
violation was S&S and reasonably likely to result in a fatal injury and the result of PCI’s
moderate negligence. Respondent took immediate steps to terminate the citation by contacting a
third party from which it rented the forklift to fix the faulty wire. Tr. 40-41, 85. Accordingly, I
affirm the penalty of $638.00.
IV. ORDER
The Respondent, Performance Contracting Inc., is hereby ORDERED to pay the
Secretary of Labor the total sum of $638.00 within 30 days of this order.4

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

4

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390.

40 FMSHRC Page 1476

Distribution: (U.S. First Class Mail)
Jessica M. Flores, Veronica Melendez, Office of the Solicitor, U.S. Department of Labor, 90 7th
Street, Suite 3-700, San Francisco, California 94103
Jason J. Curliano, Laura Van Note, Buty & Curliano LLP, 516 16th Street, Oakland, California
94612

40 FMSHRC Page 1477

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

November 29, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2018-0179
A.C. No. 41-01335-457187

v.
MARTIN MARIETTA MATERIALS
SOUTHWEST, INC.,
Respondent.

Mine: Beckmann Quarry
DECISION

Appearances:

Christopher D. Lopez-Loftis, Esq., U.S. Department of Labor, Office of
the Solicitor, Dallas, Texas, for Petitioner;
Benjamin J. Ross, Esq., Jackson Kelly PLLC, Denver, Colorado, for
Respondent.

Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, pursuant to the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 801.1 This case involves five
Section 104(a) citations issued to Martin Marietta Materials Southwest, Inc. (“Martin Marietta”
or “Respondent”), in December 2017.
A hearing was held on September 12, 2018, in San Antonio, Texas. MSHA Inspector
David Tijerina testified for the Secretary. Two managers from the mine, Howard Evans and
Richard Jackson, testified for Martin Marietta. At hearing, the Secretary requested that Citation
No. 9356108 be vacated, and the request was granted. Regarding the remaining four citations,
the Secretary argued that they should be upheld as written. Martin Marietta contested all four
violations, along with the gravity and negligence designations for each. The parties submitted
post-hearing briefs. Based upon the parties’ stipulations and my review of the witnesses’
testimony and of the entire record, I make the following findings.

1

In this decision, the transcript, the joint stipulations, the Secretary’s exhibits, and
Respondent’s exhibits are abbreviated as “Tr.,” “Jt. Stips.,” “Sec’y Ex. #,” and “Resp. Ex. #,”
respectively.

40 FMSHRC Page 1478

II. STIPULATIONS OF FACT
At hearing, the parties agreed to the following stipulations of fact included in their
prehearing statements:
1. Martin Marietta Materials Southwest, Inc. (hereinafter, “Respondent”) was at all times
relevant to this proceeding engaged in mining activities at the Beckmann Quarry Mine.
2. Respondent’s mining operations affect interstate commerce.
3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq. (The “Mine Act” or “Act”).
4. Respondent is an “operator” as that word is defined in section 3(d) of the Mine Act, 30
U.S.C. § 803(d), at the Beckmann Quarry Mine (Federal Mine I.D. No., Mine ID 41-01335)
where the contested citations in this proceeding was [sic] issued.
5. The Administrative Law Judge has jurisdiction over this proceeding pursuant to section
105 of the Act.
6. On or about December 12, 2017, through December 13, 2017, Mine Safety and Health
Administration (“MSHA”) Inspector David Tijerina was acting as a duly authorized
representative of the United States Secretary of Labor, assigned to MSHA, and was acting in
his official capacity when conducting the inspection and issuing the citations from docket
CENT 2018-0179, at issue in this proceeding.
7. The citations at issue in this proceeding was [sic] properly served upon Respondent as
required by the Act and was [sic] properly contested by Respondent.
8. The citations at issue in this proceeding may be admitted into evidence by stipulation for
the purpose of establishing their issuance. Materials published on MSHA’s website or
otherwise published by MSHA may also be admitted into evidence by stipulation for the
purpose of establishing their issuance and availability. The truthfulness or relevancy of any
statements asserted therein is not stipulated to by the parties.
9. Respondent demonstrated good faith in abating the violations.
10. The penalties proposed by the Secretary in this case will not affect the ability of
Respondent to continue in business.
See Tr. 5; Jt. Stips.

40 FMSHRC Page 1479

III. LEGAL PRINCIPLES
A. Establishing a Violation
The Commission has long held that, “In an enforcement action before the Commission,
the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987); Wyo. Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The
Commission has described the Secretary’s burden as follows: “The burden of showing
something by a ‘preponderance of the evidence,’ the most common standard in the civil law,
simply requires the trier of fact ‘to believe that the existence of a fact is more probable than its
nonexistence.’” RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden
Creek Pocahontas Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSRC at 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138 (May 1984).
B. Significant and Substantial
A violation is significant and substantial (S&S) “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3
FMSHRC 822, 825 (Apr. 1981).
In order to uphold a citation as S&S, the Commission has held that 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. Mathies Coal Co., 6 FMSHRC
1, 3–4 (Jan. 1984).
The Commission has held that the second element of the Mathies test addresses the extent
to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC
2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of
the hazard created by the violation and a determination of the likelihood of the occurrence of the
hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary
must prove there was a reasonable likelihood that the hazard contributed to by the violation will
cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. W. Ridge
Res., Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32 FMSHRC
1257, 1280–81 (Oct. 2010). Evaluation of the four factors is made assuming continued normal
mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984).

40 FMSHRC Page 1480

C. Negligence
Under the Mine Act, operators are held to a high standard of care. Am. Coal Co., 38
FMSHRC 2062, 2083 (Aug. 2016); Brody Mining, LLC, 37 FMSHRC 1687, 1702 (Aug. 2015).
However, negligence is not defined in the Act and has been differently defined by the Secretary
and the Commission. The Secretary evaluates negligence on the basis of mitigating
circumstances: low negligence involves actual or constructive knowledge of the violative
condition with considerable mitigating circumstances; moderate negligence involves actual or
constructive knowledge of the violative condition with mitigating circumstances; high
negligence involves actual or constructive knowledge of the violative condition with no
mitigating circumstances; and reckless disregard involves conduct that exhibits the absence of
the slightest degree of care. 30 C.F.R. § 100.3: Table X.
The Commission and its judges are not bound to apply the Part 100 regulations in their
consideration of negligence. Newtown Energy, Inc., 38 FMSHRC 2033, 2048 (Aug. 2016) (citing
Brody, 37 FMSHRC at 1701–03). The Commission instead employs a traditional negligence
analysis, assessing negligence based on whether an operator failed to meet the requisite standard
of care. Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a
reasonably prudent person familiar with the mining industry, the relevant facts, and the
protective purpose of the regulation would have taken under the same circumstances. Id.
Commission judges are thus not limited to an evaluation of mitigating circumstances but may
instead consider the totality of the circumstances holistically. Id.; see also Mach Mining, 809
F.3d 1259, 1264 (D.C. Cir. 2016).
D. Penalty
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Co., 5 FMSHRC
287, 291 (March 1983). The Act requires that in assessing civil monetary penalties, the
Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the
appropriateness of such penalty to the size of the business of the
operator charged, (3) whether the operator was negligent, (4) the
effect on the operator’s ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
IV. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Martin Marietta operates the Beckmann Quarry, a surface limestone operation located in
Bexar County, Texas. On December 12, 2017, MSHA Inspector David Tijerina visited the

40 FMSHRC Page 1481

quarry to perform a regular inspection.2 He was accompanied by Ron Hager, the plant manager.
Tr. 17. Four 104(a) citations issued during that inspection are at issue in this case.
A. Citation No. 9356102
Inspector Tijerina began the inspection at the primary crusher. The Beckmann Quarry is
large with several pit areas, and the primary crusher is a large crusher with conveyor belts that
feed the plants. Tr. 18. The crusher and its supports sit on a cement platform. Tr. 18. Tijerina
examined the platform and observed that it was covered in mud. Tr. 18. He did not measure the
mud, but believed it to be about two to four inches deep. Tr. 18, 22. The mud appeared slick to
him, although he did not walk on it. Tr. 18-19. He observed footprints in the mud and believed
that some of them indicated that the person walking had slipped. Tr. 18-20. The Secretary
introduced a photograph of the footprints taken by Tijerina. Sec’y Ex. 2-1. Tijerina believed slip
marks were apparent in the third footprint from the right in the photograph. Tr. 56. He
determined that the mud had accumulated because the material in the crusher was wet and sticky
due to recent rains. Tr. 21. Miners would typically have used a water pump and hose to spray
down the area, but the pump was not working. Tr. 21. Tijerina believed that the mud presented a
slip-and-fall hazard for miners working in the area. Tr. 20. He explained that if a person fell, he
could strike the floor or one of the pillars and get a laceration, contusion, or broken bones. Tr.
24. The company terminated the citation by using a water truck to spray down the area. Tr. 26.
Howard Evans, the superintendent for the primary crusher area, was present during this
portion of the inspection and testified at the hearing. He explained that typically employees only
access the platform area to do cleanup. Tr. 61-61. They occasionally also enter the area to access
the 96 belt if there is a problem with it. Tr. 61-62. He stated that the area is typically cleaned
approximately every other day, and it had been cleaned the night before the inspection. Tr. 64.
The platform is also occasionally used to access the 96 conveyor for repairs. Tr. 64. Evans stated
that before directing anyone to work in the area, management would have inspected the area and
ordered it to be cleaned. Tr. at 65. Evans believed there was less mud on the platform than the
inspector described, only an inch or two of material instead of four. Tr. 66. He described the
buildup as “minimal” and attributed it to dust from crushing that had gotten wet. Tr. 66. Evans
did not believe the mud presented a slip-and-fall hazard. Tr. 67. He explained that employees
wear steel-toed boots with slip-resistant soles that would prevent them from slipping if they
walked in the mud. Tr. 67. No one was assigned to the crusher platform area on the morning of
the inspection, and there were no problems with the 96 belt to cause anyone to enter the area that
day or the previous day. Tr. 63, 102. Evans did not know who had made the footprints shown in
the inspector’s photographs. Tr. 70. He did not observe any slip marks on the day of the
inspection. Tr. 102.

2

Inspector Tijerina has worked as an MSHA inspector for approximately seven and one
half years. Tr. 13. He previously worked for 20 years in the mining industry, including as a
safety manager and consultant. Tr. 14.

40 FMSHRC Page 1482

1. The Violation
Based on the conditions at the crusher platform, Inspector Tijerina issued Citation No.
9356102 for a violation of 30 C.F.R. § 56.20003(a). Sec’y Ex. 1-1. That standard requires that
“At all mining operations[,] Workplaces, passageways, storerooms, and service rooms shall be
kept clean and orderly.” 30 C.F.R. § 56.20003(a).
The term “workplace” is not defined in the Secretary’s regulations, but Commission
ALJs have generally found that an area is a workplace if work is done in the area. See, e.g., Oil
Dri Prod. Co., 38 FMSHRC 990, 997-98 (May 2016) (ALJ); Moltz Constr., Inc., 36 FMSHRC
1861, 1863 (July 2014) (ALJ); Taft Prod. Co., 36 FMSHRC 522, 526 (Feb. 2014) (ALJ).
Commission ALJs have interpreted “passageway” to include areas where miners walk in order to
access other areas. See, e.g., Ball, employed by Mountain Materials, Inc., 38 FMSHRC 1799,
1809 (July 2016) (ALJ); Taft, 36 FMSHRC at 526-27. Here, while no one was assigned to the
area at the time, the crusher platform provided access to the 96 belt and miners entered the area
regularly to clean. The footprints in the mud indicate that someone had been in the area recently
to work or to pass through. 3 I find that the area was a “workplace” or “passageway.”
I also find that the area was not “kept clean and orderly.” In applying broad standards
such as this one, the Commission asks whether “a reasonably prudent person familiar with the
mining industry and the protective purposes of the standard would have recognized the specific
prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2415-16
(Nov. 1990). Inspector Tijerina testified that the area was covered in a thick layer of mud and
appeared slippery. Tr. 18-19. Based on his observations of the footprints, he believed someone
had already slipped in the mud. Tr. 18-20. I credit his testimony and find that the mud presented
a slip-and-fall hazard. While Evans stated that the area had been cleaned the night before, even if
this was true, I find that a reasonably prudent miner would have recognized the hazard and taken
steps to address it. Accordingly, the Secretary has proven a violation.
2. Significant and Substantial
The Secretary argues that the violation was S&S and was reasonably likely to result in an
injury causing lost workdays or restricted duty. The Secretary has proven a violation of a
mandatory safety standard, satisfying the first element of the Mathies test for an S&S violation.
To prove the second Mathies element, the Secretary must demonstrate the reasonable
likelihood of the occurrence of the hazard that § 56.20003(a) is designed to prevent. Newtown
Energy, 38 FMSHRC at 2037. Section 56.20003(a) requires that all workplaces, passageways,
storerooms, and service rooms shall be kept clean and orderly. 30 C.F.R. § 56.20003(a). The
purpose of § 56.20003(a) is to address the hazard of a miner slipping, falling, or tripping on loose
materials in a work area. Martin Marietta argues that the hazard was unlikely to occur because
the crusher pedestal was only accessed for cleaning, which occurred every other day, and
3

Evans implied at hearing that the footprints could have belonged to the inspector. Tr.
68. However, Tijerina testified that he did not walk on the cement. Tr. 19. I credit the inspector’s
testimony and find that the prints most likely belonged to a miner.

40 FMSHRC Page 1483

occasionally for repairs of the 96 conveyor. Resp. Br. 3, 6; Tr. 64. The company contends that
the area would have been cleaned before anyone performed work there. Resp. Br. 6. However,
the footprints observed by the inspector indicate that someone entered the area while it was still
muddy. Assuming continued normal mining operations, it is reasonable to expect that someone
would have entered the area again without cleaning it first. The operator argues that steel-toed
boots would prevent anyone from slipping in the mud and that there are no slip marks apparent
in the inspector’s photograph. Resp. Br. 5-6. I disagree and find that the photograph does
indicate slippage. See Sec’y Ex. 2-1. I find that the slip-and-fall hazard was reasonably likely to
occur.
The third Mathies element requires proof that the hazard, if it occurred, would be
reasonably likely to result in injury. Newtown, 38 FMSHRC at 2038. Tijerina noted that there
were hard surfaces in the area, including a concrete floor and pillars, which a person could strike
if he fell. Tr. 24. I find that a fall in the area would be reasonably likely to lead to injury.
Finally, to establish the fourth Mathies element, the Secretary must show a reasonable
likelihood that the injury resulting from the hazard would be of a reasonably serious nature.
Newtown, 38 FMSHRC at 2038. Tijerina testified that a slip and fall could result in lacerations,
stitches, contusions, or broken bones. Tr. 24. I credit his assessment and conclude that there was
a reasonable likelihood that a reasonably serious injury could occur.
I affirm the Secretary’s S&S designation for this violation, and for the same reasons I
affirm the gravity designation of reasonably likely to result in lost work days or restricted duty.
3. Negligence
The Secretary alleges that the violation involved moderate negligence on the part of the
operator. The Secretary contends that the condition was in plain view and miners should have
seen the mud and known to clean it up. Sec’y Br. 13. Instead, a miner walked through the mud
without cleaning it up. The Secretary considered the broken pump to be a mitigating
circumstance, because it made cleaning the area more difficult. Tr. 24. The Secretary believed
that management was unaware of the condition. Tr. 24. Martin Marietta argues that it was not
negligent because the area had been cleaned the night before the inspection, miners had not been
assigned to work in the area, and company policy required that miners wear non-skid boots. Tr.
64; Resp. Br. 7.
I agree with the Secretary that the condition was obvious. While the area was not heavily
used, the footprints indicate that someone had passed through the area in that condition. Sec’y
Ex. 2-1. I credit Evans’s testimony that the area had been cleaned the night before. Tr. 64. The
broken pump also made cleanup more difficult. Tr. 21. Nevertheless, it was possible to clean the
area another way, and miners should have done so before using the area as a passageway. I
affirm the Secretary’s moderate negligence designation.

40 FMSHRC Page 1484

4. Penalty
The Secretary proposed a penalty of $2,919.00. Martin Marietta had been cited under the
same standard seven times in the fifteen-month period prior to the inspection. Sec’y Ex. 11. The
parties stipulated that the company demonstrated good faith in abating the violation. Jt. Stips.
¶ 9. I assess the proposed penalty of $2,919.00.
B. Citation No. 9356103
Inspector Tijerina continued his inspection in the F section of the plant. The F section
included a conveyor known as a pant leg conveyor because it has a belt that splits into two
separate sections. Tr. 28, 97. A set of steps led up to the conveyor and catwalk, and Tijerina
observed that the steps and lower portion of the catwalk were covered with material. Tr. 28.
There was approximately four inches of material on the steps, and closer to a foot of material on
the catwalk. Tr. 28. The steps had a chain and sign across them that said “do not enter while
running.” Tr. 72. The steps had also been taped off with danger tape and a tag dated to the day
before the inspection. Tr. 29. Based on interviews with miners, Tijerina determined that the
condition had been identified the previous day, during either the day or the night shift. Tr. 29.
The Secretary’s Exhibit 4-1 is a photograph of the steps showing material on the steps and
danger tape blocking entry to the steps. Tijerina observed that the pant leg chute was in bad
condition, and that rock was spilling out of holes in the chute. Tr. 30. He believed this was
causing the accumulation of material. Miners informed him that even if they cleaned up the
material, it would accumulate again within an hour because of the condition of the chute. Tr. 30.
Management told Tijerina that the chute had been there for a long time and they had plans to
replace it in the next year. Tr. 30. To terminate the citation, miners installed a plate over a
portion of the chute to keep the material from falling out. Tr. 31. The plate kept the material from
spilling out when it was tested. Tr. 32.
Evans, the supervisor for this section, was also present when this citation was issued. He
testified that the spillage had been discovered the day before the inspection, and he had
instructed employees to begin cleaning the area at that time. Tr. 72, 81, 84. He explained that
workers had started at the top of the head section of the 104 conveyor and had been working
their way down cleaning the catwalk. Tr. 80. The employees would pull out any larger rocks that
were stuck in the catwalk and then wash the remaining material down to the bottom of the
conveyor with a hose. Tr. 80, 81. Respondent’s Exhibit H-6 is a photograph of the side-view of
the conveyor, and Evans testified that it is an accurate representation of the conditions at the time
of the inspection. Tr. 74. Evans noted that while there are accumulations visible on the steps and
the lower third of the conveyor, there are none on the upper section. Tr. 83; Resp. Ex. H-6, H-7.
Martin Marietta argues that this is consistent with Evans’s testimony that the miners had begun
cleaning prior to the inspection, moving from the top to the bottom of the conveyor. Resp. Br. 8;
Tr. 83. Evans believed the spillage had been discovered during clean-up on the previous day
shift, and cleaning had begun at that point. Tr. 84. He thought workers had also cleaned during
the night shift, but had also run the plant, which would have created more spillage. Tr. 84. Evans
explained that the miners typically clean for approximately one hour at the beginning and end of
each shift and do as much as they can. Tr. 106. He understood the inspector’s position to be that
cleaning should have been completed before the plant started running. Tr. 106.

40 FMSHRC Page 1485

Evans emphasized that there was red caution tape across the entrance to the catwalk as
well as a sign and a tag, and thus no one would have entered the area. Tr. 71-73. The miners
working on cleaning had entered from a different ladder, and they would not be allowed to enter
the belt area while the belt was running. Tr. 81, 84, 107. Regarding the source of the spillage,
Evans explained that the belt is equipped with metal and rubber skirting to keep material from
spilling out. Tr. 96. Over time the skirting wears away and has to be readjusted. Tr. 96. In this
location, the metal skirting was replaced and the rubber skirting was readjusted to stop the
spillage. Tr. 96. Evans also explained that the conveyor has a liner that sometimes wears out and
has to be patched. Tr. 97. However, he did not recall having to patch any holes in the liner to
terminate this violation. Tr. 98.
The Secretary questions Evans’s assertion that the catwalk was being cleaned at the time
of the inspection. Evans testified that he instructed workers to clean the area as soon as the
spillage was detected, which was during clean-up on the previous day shift. Tr. 84. However, the
Secretary introduced the inspector’s notes from the inspection, which state, “Management had
not seen it according to superintendent.” Sec’y Ex. 3-4. Evans denied telling the inspector that he
had not seen the spillage, and instead testified that he told the inspector at the time that the area
was being cleaned and no one was allowed to enter. Tr. 99. Tijerina made no mention of the
mine’s cleaning efforts in his testimony or his notes. Tr. 33; Sec’y Ex. 3-4. Instead, the notes
reflect that there was nothing in the workplace examination reports reflecting the condition.
Sec’y Ex. 3-4. Faced with inconsistent testimony, I credit the inspector on this issue because of
the contemporaneous notes matching his account. It seems most likely that someone at the mine
had noticed the condition and tagged the area, but the condition had not been noted in the
examination log and clean-up had not yet begun. The miners’ comments to the inspector that
even if they cleaned the area, the accumulations would be back in an hour, suggest that cleaning
the area was not a priority. Tr. 30. Martin Marietta argues that the photos showing less
accumulated material on the top section of the conveyor indicate that the top section had already
been cleaned. Resp. Br. 12; Resp. Exs. H-6, H-7. However, it is equally possible that the hole in
the chute causing the accumulations was simply located near the bottom of the chute. The photos
do not show that anyone was cleaning at the time of the inspection.
1. The Violation
The Secretary alleges a violation of 30 C.F.R. § 56.18002(a), which provides:
(a) A competent person designated by the operator shall examine
each working place at least once each shift before work begins or
as miners begin work in that place, for conditions that may
adversely affect safety or health.
(1) The operator shall promptly notify miners in any
affected areas of any conditions found that may adversely
affect safety or health and promptly initiate appropriate
action to correct such conditions.
In order to prove a violation under a prompt-correction rationale, the Secretary must establish (1)
the existence of a condition that may adversely affect safety or health and (2) that the operator

40 FMSHRC Page 1486

failed to initiate either (a) prompt or (b) appropriate action to correct the condition. 30 C.F.R. §
56.18002(a).
The inspector testified that the accumulated material on the steps and catwalk could have
caused a miner who tried to walk there to trip and fall. I credit this testimony and find that the
cited condition adversely affected the safety of miners.
The Secretary alleges that the operator failed to promptly correct the condition in
violation of the standard. While the “promptness” requirement is not elaborated in the standard,
the Commission has interpreted an analogous standard requiring “timely” correction of a defect
on equipment after inspection. See Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001). The
Commission found that “Whether the operator failed to correct the defect in a timely manner
depends entirely on when the defect occurred and when the operator knew or should have known
of its existence.” Id. This interpretation is consistent with the Commission’s application of the
“reasonably prudent person” standard to broadly worded regulations. See Ideal Cement Co., 12
FMSHRC at 2415-16.
Here, the accumulation of material on the steps and catwalk was extensive. Someone at
the mine had recognized that the accumulations presented a hazard and had put up danger tape
and a tag. Tr. 29. While Evans testified that miners had begun cleaning the accumulations, this
was not corroborated by the inspector’s notes or the mine’s records, and thus I do not credit his
statement. Tr. 84; Sec’y Ex. 3-4. The condition had been discovered the previous day, but action
had not yet been taken to correct the hazard. Instead, several cycles of cleaning and running the
plant had occurred without anyone addressing the condition. Tr. 29. I find that a reasonably
prudent person would have taken steps to clean the area or to address the cause of the spillage in
the time that had elapsed since it was discovered.4 The Secretary has proven a violation.
2. Gravity
The Secretary alleges that the violation was unlikely to cause injury and that if injury did
occur it would likely lead to lost workdays or restricted duty. The inspector credibly explained
that if someone were to walk in the area, he could trip and fall on the extensive accumulated
material. Tr. 32-33. He did not think this was likely, however, because the area had been taped
off and tagged out. Tr. 32. Evans also testified that no one would enter the area while the plant
was running. Tr. 107. Based on these facts, I affirm the Secretary’s gravity assessment.
3. Negligence
The Secretary alleges that the violation involved moderate negligence on the part of the
operator. The inspector noted that the area had been taped and tagged off to warn miners of the
danger. Tr. 29. Mine management also had plans to replace the chute, which would address the
4

Because I find that miners had not yet begun cleaning the cited area, it is unnecessary to
address Martin Marietta’s arguments that the standard requires operators to “initiate” but not to
complete corrective action to address a safety hazard and that it lacked adequate notice of the
requirements of the standard. Resp. Br. 9-14.

40 FMSHRC Page 1487

cause of the spillage. Tr. 30. Martin Marietta argues that it was not negligent because it had
already begun removing the accumulations, but I do not find this to be true. Resp. Br. 14. Based
on the other mitigating factors, however, I modify the negligence designation to low.
4. Penalty
The Secretary’s proposed a penalty of $151.00. Based on the reduction in negligence, I
assess a penalty of $100.00.
C. Citation No. 9356106
The next violation at issue involved a catwalk between the mine’s Crusher 2 and Crusher
3 in the secondary area of the plant. Tijerina observed that the catwalk was dented in the middle
and had a three-inch drop. Tr. 34. The welds at the corner of the walkway had come off. Tr. 34.
The Secretary’s Exhibit 6 is a photograph showing the missing welds. Respondent’s Exhibit L-9
is another photograph of the same area showing that the grating is bent. Respondent’s Exhibit L6 is an aerial photograph of the catwalk showing that it is bent in the middle. A miner told
Tijerina that the catwalk had been in this condition for at least three and a half weeks. Tr. 35.
Tijerina thought it had probably been longer based on the substantial amount of rust. Tr. 35. He
believed that the uneven surface of the catwalk created a trip hazard. Tr. 35. He also believed
that the grating on the catwalk would eventually fail, which could lead a person to fall 20 feet to
the ground below. Tr. 35. Tijerina did not conduct any tests to evaluate the strength of the
catwalk. Tr. 55. After the inspection, the company determined that it would be difficult to repair
the catwalk and instead closed off access to it. Tr. 37, 140.
Richard Jackson, the supervisor of the secondary area at the mine, was present for this
portion of the inspection. Tr. 128. He stated that some of the welds on the catwalk had curled up
to the left and there was a separation where part of the catwalk had bowed up. Tr. 129. The
portion that had bowed up was at the very edge of the catwalk on the toe board. Tr. 129; Resp.
Ex. L-1. The bent grating was about halfway across the catwalk. Tr. 139. He disagreed with the
inspector’s opinion that the catwalk was not stable enough to support workers because while the
grating was curled up in the corner, it was otherwise in good shape. Tr. 131. He did not believe
that anyone would fall off of the catwalk because there were guardrails on both sides that were
stable and in good shape. Tr. 131; Resp. Ex. L-8. He also did not believe that the catwalk would
collapse. Tr. 145. He explained that the catwalk is used to travel between Crusher 2 and Crusher
3 so that miners can avoid descending to the ground and walking up another set of stairs. Tr. 132.
Miners would not be in the area while the plant was running, but would use the catwalk when
doing lubing or greasing in the area or when doing inspections. Tr. 131-32.
1. The Violation
Inspector Tijerina cited the mine for a violation of 30 C.F.R. § 56.11002. That standard
provides that “Crossovers, elevated walkways, elevated ramps, and stairways shall be of
substantial construction, provided with handrails, and maintained in good condition. Where
necessary, toeboards shall be provided.” 30 C.F.R. § 56.11002.

40 FMSHRC Page 1488

I find that the Secretary has proven a violation. The catwalk was an “elevated walkway”
used to travel between two crushers at the mine. The walkway was not maintained in good
condition. The welds at one corner of the catwalk had come off, and the grating was bent in
several places. Sec’y Ex. 6; Resp. Ex. J, L-6, L-9. The bent grating created a tripping hazard for
miners and should have been corrected.
2. Significant and Substantial
The Secretary argues that the violation was S&S and was reasonably likely to result in a
fatal injury. The Secretary has proven a violation of a mandatory safety standard, satisfying the
first element of the Mathies test for an S&S violation.
With regard to the second Mathies element, the inspector discussed two hazards
addressed by the standard. The first was that the catwalk could fail or collapse. Tijerina believed
that the grating was in such bad condition that it would eventually fail. Tr. 35. However, he did
not conduct tests to evaluate the strength of the catwalk or provide details as to why he thought it
would fail. Tr. 55. It is difficult to assess the strength of the walkway from photographs alone. In
the absence of more detailed evidence regarding the conditions of the catwalk, I do not find that
the Secretary has established that this hazard was likely to occur. The inspector also discussed
the hazard of a miner tripping and falling on the catwalk. Tr. 35. A portion of the grating at the
end of the catwalk was bent upward where the weld had come off. However, Jackson testified
that the curled up portion was on the very edge of the catwalk, and this testimony is supported by
the photographs introduced by Martin Marietta. Tr. 129; Resp. Ex. J. Jackson believed it was
unlikely that anyone would step in that specific place and thus that it was unlikely that anyone
would trip. Tr. 133-34. The Secretary did not provide any details regarding how the trip hazard
would occur. I agree with the assessment of Jackson that the damaged grating was not in a
location where it would be likely to cause a trip and fall accident.5 The likelihood of injury is
modified from reasonably likely to unlikely. The Secretary has failed to establish that the trip and
fall hazard was likely to occur, and therefore, the S&S designation is vacated.
With respect to the injury designation, as noted above, the Secretary’s evidence fails to
establish a reasonable likelihood of a fatality, either from a fall or from the collapse of the
catwalk. In the event that a miner did trip on the uneven catwalk, however, the resulting injury
could be expected to lead to lost workdays or restricted duty. Thus, the injury designation is
modified from fatal to lost workdays/restricted duty.
3. Negligence
The Secretary alleges that the violation involved moderate negligence on the part of the
operator. Management claimed that they were unaware of the violation and the walkway was not
5

Martin Marietta argues that a trip and fall hazard was unlikely to occur because there
were handrails present on the walkway. Resp. Br. 17-18. The Commission has held that
redundant safety measures are irrelevant to the S&S analysis. Black Beauty Coal Co., 38
FMSHRC 1307, 1312-13 (June 2016). Thus, my finding that a hazard was unlikely to occur is
not based on that rationale.

40 FMSHRC Page 1489

used frequently. Tr. 44, 46, 132. However, Tijerina determined based on a discussion with a
miner that the condition had been present for at least three and a half weeks, and I credit his
finding. Tr. 35. Additionally, miners told the inspector they had reported the condition on
workplace exams. Tr. 44. Tijerina did not see a record of the condition in the workplace exam
record, but I do not find this to be a mitigating circumstance. Tr. 44. Although the walkway was
not severely compromised, the defects were obvious. The bent portion of the walkway was
visible from a distance. Resp. Ex. L-6. The defects had been present for some time and should
have been addressed. I increase the negligence designation from moderate to high.
4. Penalty
The Secretary proposed a penalty of $2,487.00. Martin Marietta had not been cited under
this standard in the fifteen months prior to the inspection, and the parties stipulated that the
company demonstrated good faith in abating the violation. Sec’y Ex. 11; Jt. Stips. ¶ 9. Based on
the changes in gravity and negligence, I assess a penalty of $1,250.00.
D. Citation No. 9356109
The final citation at issue occurred in the rail load out area where trucks and rail cars are
loaded with material. Tr. 46, 48. The inspection party approached the three screen shaker, and
Tijerina observed that the catwalk in front of the shaker was covered in material. Tr. 46. He
observed that the chute on the shaker had a hole and was spilling material out onto the catwalk.
Tr. 46. The shaker was running at the time. Tr. 47. A photograph of the area shows that the
material reached the top of the toe board in one place, a height of four inches. Tr. 46, 48; Sec’y
Ex. 10-1. The material was wet at that point in the operation, and Tijerina believed it would be
relatively stable to stand on. Tr. 50. At one point during the inspection, a miner was about to
enter the area, but the supervisor for that area, Eddie de la Garza, stopped him from doing so. Tr.
49. To terminate the citation, miners repaired the damaged chute, which stopped the material
from spilling out. Tr. 49, 142.
Jackson, the secondary supervisor, testified about the general housekeeping practices at
the mine. He explained that because of the nature of the work, there are many possibilities for
spillage. Tr. 115. Miners do workplace examinations at the beginning of each shift and also walk
around the site monitoring conditions throughout the shift. Tr. 116. The company attempts to
address spillage as it occurs. Tr. 115. The miners typically clean spills by spraying water or
shoveling, and occasionally they also use a skid steer or loader. Tr. 115, 121. If a miner finds an
accumulation and is unable to address it himself, management will shut down the plant and send
someone to help. Tr. 118.
Jackson observed the three screen shaker area with the inspector, although he left before
the citation was issued. Tr. 118. He agreed that there were four inches of material on the left side
of the walkway, but thought there was an inch or less on the rest of the walkway. Tr. 126, 141.
He stated that the cited accumulation had been noted on the workplace examination the day
before, but the spillage was minor at that time. Tr. 120. The spillage was caused by a hole in the
chute, and the company had plans to fix it the day of the inspection. Tr. 120. Additionally, a
miner had just arrived to clean the area. Tr. 120. Jackson explained that the cited area is a

40 FMSHRC Page 1490

walkway used to reach the screens and catwalks. Tr. 123. Miners enter the area to do pre-shift
checks and to check the screens, but would not be in the area when the rail loader was running,
as it was that day. Tr. 123, 144.
1. The Violation
Tijerina again cited the mine for a violation of 30 C.F.R. § 56.20003(a), requiring that
“Workplaces, passageways, storerooms, and service rooms shall be kept clean and orderly.”
Martin Marietta argues that the standard requires a showing that a miner accessed the
cited area before cleaning it. Resp. Br. 18-20 (citing Nelson Quarries, Inc., 30 FMSHRC 254,
266-67 (Apr. 2008) (ALJ)). That interpretation has been adopted by one ALJ cited in
Respondent’s brief, but not by the Commission.6 I decline to adopt it here. The standard at issue
applies to “workplaces,” which I interpret to mean places where work is done, and to
“passageways,” which I interpret to mean places that miners use to travel between areas of the
mine. See Oil Dri Prod. Co., 38 FMSHRC 990, 997-98 (May 2016) (ALJ) (applying similar
definitions of these terms).
Here, the cited area was used to access the screens and catwalks and was open to access
by miners at the time of the inspection. Tr. 49, 123. Tijerina observed a miner attempt to enter
the area before he was stopped by a supervisor. Tr. 49. I therefore find that the area was a
“workplace” or “passageway” under the standard. The area was covered in a layer of material up
to four inches in depth. Tr. 48. The condition had been noted in a workplace exam, which
supports the inspector’s opinion that it constituted a hazard. Tr. 120. I find that the area was not
“clean and orderly.”
Martin Marietta argues that in operations like its quarry, accumulation of materials is
inevitable, and requiring the operator to constantly clean up accumulations would be
unreasonable. Resp. Br. 20. However, the record suggests that the accumulations cited here were
not the ordinary accumulations that occur in the course of operating the quarry. The inspector
found that the spillage was caused by a hole in the chute, and it had been noted in a workplace
exam the day before but had not yet been corrected. Tr. 46, 120.
I find that the Secretary has proven a violation.
2. Gravity
The Secretary alleges that the violation was unlikely to cause injury and that if injury
occurred it would likely result in lost workdays or restricted duty. Based on the testimony of
Jackson, it seems that the area was not frequently used. Tr. 123, 144. Tijerina believed the
6

The Southwest Rock Products case cited by Respondent involved a mine that was not in
operation at the time of the inspection, and the ALJ noted that that fact was essential to his
decision to vacate a housekeeping citation. Southwest Rock Products, LLC, 38 FMSHRC 2750,
2758 (Nov. 2016) (ALJ). Respondent also cites a case decided by me, A & G Coal Corp., 37
FMSHRC 1046 (May 2015) (ALJ), which does not stand for the proposition it claims.

40 FMSHRC Page 1491

accumulated material was fairly stable to stand on. Tr. 50. Tijerina testified that if a miner were
to trip and fall on the material, he could strike the floor or railing, causing broken bones or
lacerations. Tr. 50. I credit the inspector’s testimony and affirm the Secretary’s gravity
designation.
3. Negligence
The Secretary alleges that the violation involved moderate negligence on the part of the
operator. The inspector believed the condition had not been present for very long and that the
supervisor was unaware of it. Tr. 51. Jackson testified that the miner assigned to the area was on
his way to do a workplace exam at the time of the inspection, and management had made plans
to fix the hole in the chute. Tr. 142-43. It seems that if management was aware of the hole in the
chute, it should have been obvious that spillage was going to occur. However, I accept the
inspector’s findings that the condition did not present significant danger, and thus it was not
highly negligent for the operator to delay maintenance on the chute for a brief period of time.
Therefore, I affirm the Secretary’s moderate negligence designation.
4. Penalty
The Secretary proposed a penalty of $429.00. Martin Marietta had been cited under the
same standard seven times in the fifteen-month period prior to the inspection. Sec’y Ex. 11. The
parties stipulated that the company demonstrated good faith in abating the violation. Jt. Stips.
¶ 9. I assess the proposed penalty of $429.00.
V. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$4,698.00 within 30 days of this order.7

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

7

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390

40 FMSHRC Page 1492

Distribution: (U.S. First Class Mail)
Christopher D. Lopez-Loftis, U.S. Department of Labor, Office of the Solicitor, 525 Griffin
Street, Suite 501, Dallas, TX 75202
Karen L. Johnston, Benjamin J. Ross, Jackson Kelly PLLC, 1099 Eighteenth Street, Suite 2150,
Denver, CO 80202

40 FMSHRC Page 1493

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9958 / FAX: 202-434-9949

December 7, 2018
CONTEST PROCEEDING

SIMS CRANE,
Contestant

Docket No. SE 2017-0097
Mine I.D. 08-00981

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

Mine: Wingate Creek Mine
DECISION AND ORDER

Appearances:

W. Ben Hart, W. Ben Hart & Associates, Tallahassee, Florida for
Contestant
Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado for Respondent

Before:

Judge McCarthy

This case is before me after the Commission reopened and remanded a Notice of Contest
of Withdrawal Order under Section 107(a) of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 815(d) (the Mine Act or the Act) for further proceedings pursuant to the Act and the
Commission’s Procedural Rules. See 29 C.F.R. §§ 2700, 2700.22; Sims Crane,
39 FMSHRC ___, No. SE 2017-97-RM (July 7, 2017).1
I. STATEMENT OF THE CASE
The alleged violation at issue in this proceeding is imminent danger Order No. 8823572.
Order No. 8823572 was issued on September 23, 2015 by MSHA Inspector Robert Peters in
conjunction with 104(a) Citation No. 8823573 after Peters witnessed truck driver William
Nasrallah exit a mobile crane’s cab area and walk forward across the left front fender without
using handholds or fall protection. Sims Crane, 39 FMSHRC 116, 120-121 (Jan. 2017) (ALJ).
Order No. 8823572 alleged that walking across the fender without fall protection presented an
imminent danger. Citation No. 8823573 alleged a significant and substantial violation of
30 C.F.R. § 56.15005 for the same conduct. The Secretary filed a Petition for the Assessment of
Civil Penalty for Citation No. 8823573 under section 105(d) of the Act, which Sims Crane
(Contestant) properly contested. Id. at 116. The proceeding was assigned to Docket No. SE
2016-0081.
1

I have construed the Contestant’s August 1, 2017 “Application for Vacation,
Modification, or Termination,” as a Notice of Contest.

40 FMSHRC Page 1494

The Secretary does not assess a civil penalty for a 107(a) order, and such orders are not
included in the Secretary’s Petition for the Assessment of a Civil Penalty. The Contestant
averred that it contested Order No. 8823572 in conjunction with its contest of the Secretary’s
proposed penalty for 104(a) Citation No. 8823573 because Order No. 8823572 was referenced
by number in the text of the Citation. Id. at 119 n.4. During pre-hearing proceedings in Docket
No. SE 2016-0081, it became apparent that Contestant had failed to file a Notice of Contest to
contest Order No. 8823573 as required by the Commission’s procedural rules. 29 C.F.R. §
2700.22; see also 30 U.S.C. § 817(e)(1); Sims Crane, 39 FMSHRC 116, 119 n.4 (Jan. 2017)
(ALJ).
A hearing was held in St. Petersburg, Florida, on November 14, 2016. During the
hearing, the parties offered testimony and documentary evidence regarding both Citation
No. 8823573 and Order No. 8823572, and the record was left open to allow the Contestant to
submit evidence supporting its argument that it properly contested Order No. 8823572 as
required by the Commission’s procedural rules. See, e.g., Tr. 11, 24, 54-56; see also
29 C.F.R. § 2700.22. Pursuant to the Commission’s procedural rules governing simplified
proceedings, the parties presented closing arguments in lieu of submitting post-hearing briefs. 29
C.F.R. § 2700.108(e).2
On December 19, 2016, Contestant filed with the Commission a motion seeking to
reopen imminent danger Order No. 8823572, which had become a final order of the Commission
pursuant to section 107(e)(1) of the Mine Act, 30 U.S.C. § 817(e)(1).
On January 13, 2017, this tribunal issued its Decision and Order in Docket No. SE 20160081.3 As relates to Order No. 8823573, this tribunal found the following:
Order No. 8823572 was issued by MSHA inspector Robert Peters under section
107(a) of the Act, in conjunction with Citation No. 8823573, the single citation at
2

In this decision, “Tr. #” refers to the hearing transcript, “Jt. Ex. #” refers to joint
exhibits, “P. Ex. #” refers to the Petitioner’s exhibits, and “R. Ex. #” refers to the Contestant’s
exhibits. Jt. Ex. 1, P. Exs. 1-10, and R. Exs. 1-14 were received into evidence at the hearing.
3

Regarding the alleged violation in Citation No. 8823573, the Secretary argued that
Nasrallah’s travel across the fender wheel well, approximately seven feet above the paved road,
without maintaining three points of contact, constituted a violation of 30 C.F.R. § 56.15005. Sims
Crane, 39 FMSHRC 116, 120 (Jan. 2017) (ALJ). The Secretary also alleged that the violation
was S&S, highly likely to cause permanent disabling injury to one person, and the result of
Respondent’s moderate negligence. Id. at 116-117. This tribunal found that the Secretary failed
to “establish by a preponderance of the evidence that there was a reasonable likelihood that
Nasrallah would fall from the crane as he briefly took three steps” while walking on the threefoot wide fender with a slip-resistant surface. Id. at 126. This tribunal also found that the
violation was not the result of Sims Crane’s negligence because the Secretary failed to establish
that Sims Crane knew or should have known of Nasrallah’s violation, Sims Crane trained its
employees to maintain at least three points of contact during access or egress of mobile
equipment, and MSHA’s Policy Information Bulletin No. 10-04 references standards that allow
the use of two points of contact for support on walkways. Id. at 126-27.

40 FMSHRC Page 1495

issue in this proceeding. Although the parties’ stipulations reference this Court’s
jurisdiction over Order No. 8823572, the Commission’s records contain no
indication that Respondent timely filed its Notice of Contest within 30 days of the
receipt of Order No. 8823572, as required under the Commission’s procedural
rules. See Commission Procedural Rule 22, Notice of contest of imminent danger
withdrawal orders under section 107 of the Act, 29 C.F.R. § 2700.22. The record
was left open after hearing to permit Respondent to submit such evidence. Tr. 57,
154-55. In an e-mail to my attorney advisor on November 28, 2016, Respondent
argued that it had contested Order No. 8823572 at the same time it contested the
proposed penalty assessment for Citation No. 8823573 because the Order was
referenced by number in the text of the Citation. However, the Commission’s
procedural rules provide that Notices of Contest regarding imminent danger
orders must be filed with the Commission within 30 days of the termination of the
order. Id. Even assuming that contesting the Petition for the Assessment of Civil
Penalty for Citation No. 8823573 was sufficient to also contest Order
No. 8823572, MSHA did not receive Respondent’s Notice of Contest regarding
the proposed penalties for Citation No. 8823573 until December 23, 2015. See Ex.
A, Sec’y of Labor’s Petition for the Assessment of Civil Penalty, Docket No.
SE 2016-0081. Since Order No. 8823572 was terminated on September 23, 2015,
Respondent should have filed its Notice of Contest by October 23, 2015. P. Ex. 6.
Despite the parties’ stipulations to the contrary, I find that Respondent never
timely filed its Notice of Contest regarding Order No. 8823572, and I
consequently lack jurisdiction over that Order. I therefore decline to address
Order No. 8823572 in this Decision and Order.
Sims Crane, 39 FMSHRC 116, 119 n.4 (Jan. 2017) (ALJ).
Contestant filed a Petition for Discretionary Review of that Decision and Order on
February 13, 2017. The Commission granted Contestant’s Petition on February 22, 2017. Docket
No. SE 2016-0081 is still pending before the Commission.
On July 7, 2017, the Commission issued an order reopening and remanding Order No.
8823572 for further proceedings. Sims Crane, 39 FMSHRC ___, slip op. at 7, No. SE 2017-97RM (July 7, 2017). The proceeding was assigned to Docket No. SE 2017-0097-RM. The
Commission held that reopening the final order was appropriate under Federal Rule of Civil
Procedure 60(b)(1) because the Contestant clearly expressed its understanding that it had
properly contested the imminent danger order, the Secretary of Labor’s affirmative endorsement
of the Contestant’s misunderstanding fostered this mistaken belief, and the confluence of
circumstances constituted an extraordinary mistake. Sims Crane, 39 FMSHRC ___, slip op. at 47, No. SE 2017-97-RM (July 7, 2017).
This reopened proceeding was assigned to me on July 10, 2017. I stayed the proceedings
in Docket No. SE 2017-0097 pending the Commission’s decision in Docket No. SE 2016-0081.
As it has been more than a year since this proceeding was stayed, I now issue the following
Decision and Order.

40 FMSHRC Page 1496

II. PRINCIPLES OF LAW
Under section 107(a) of the Act, if an MSHA inspector “finds that an imminent danger
exists, [the inspector] shall . . . issue an order requiring the operator of such mine to cause all
persons . . . to be withdrawn from” the relevant area until the danger no longer exists.
30 U.S.C. § 817(a). An imminent danger exists whenever “the condition or practice observed
could reasonably be expected to cause death or serious physical harm to a miner if normal
mining operations were permitted to proceed in the area before the dangerous condition is
eliminated.” 30 U.S.C. § 802(j); see also Wyoming Fuel Co., 14 FMSHRC 1282, 1290
(Aug. 1992); Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (Nov. 1989) (quoting
E. Associated Coal Corp. v. Interior Bd. of Mine Operations Appeals, 491 F.2d 277, 278 (4th
Cir. 1974) (emphasis omitted)). For an imminent danger order to issue under section 107(a),
there must be some degree of imminence such that the hazardous condition has a reasonable
potential to cause death or serious injury within a short period of time. Id. Although the
Commission has cautioned against narrowly construing imminent danger to include only
immediate threats, there must be some degree of imminence to support an imminent danger
order. That is, a hazard must be impending so as to require the withdrawal of miners. Island
Creek Coal Co., 15 FMSHRC at 345.
An inspector’s issuance of a 107(a) order is reviewed under an abuse of discretion
standard, meaning that a judge “must support the findings and the decisions of the inspector
unless there is evidence that he has abused his discretion or authority.” Wyoming Fuel,
14 FMSHRC at 1291 (quoting Old Ben Coal Corp. v. Interior Bd. of Mine Operations Appeals,
523 F.2d 25, 31 (7th Cir. 1975)); see also Knife River Construction, 38 FMSHRC 1289, 1291
(June 2016). The Secretary must prove, by a preponderance of the evidence, “that the inspector
reasonably concluded, based on information that was known or reasonably available to him at
the time the order was issued, that an imminent danger existed.” Knife River Construction,
38 FMSHRC at 1291 (internal citation omitted). The Commission has recognized that “a judge is
not required to accept an inspector’s subjective perception that an imminent danger existed, but,
rather, must evaluate whether it was objectively reasonable for the inspector to conclude that an
imminent danger existed.” Id.
III. FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW
A. Stipulations of Fact and Law
The parties have stipulated to the following:
1. Sims Crane is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq.
2. The Administrative Law Judge has jurisdiction over this proceeding pursuant to § 105 of the
Act.
3. The citation and imminent danger order at issue in this proceeding were properly served upon
Sims Crane as required by the Mine Act.

40 FMSHRC Page 1497

4. The citation and imminent danger order at issue in this proceeding may be admitted into
evidence by stipulation for the purpose of establishing its issuance.
5. Sims demonstrated good faith in abating the violation.
6. The penalties proposed by the Secretary in this case will not affect the ability of Sims to
continue in business.
7. Sims was at all time relevant to this proceeding engaged in mining activities at the Wingate
Creek Mine located in or near Myakka City, Manatee County, Florida.
8. Sims’ mining operations affect interstate commerce.
9. Sims is an “operator” as that word is defined in § 3(d) of the Mine Act, 30 U.S.C. § 803(d), at
the Wingate Creek Mine (Federal Mine I.D. No. 08-00981) where the contested citation and
imminent danger order in this proceeding were issued.
10. On the date the citation in this docket was issued, the issuing MSHA metal/non-metal mine
inspector was acting as a duly authorized representative of the United States Secretary of Labor,
assigned to MSHA, and was acting in his official capacity when conducting the inspection and
issuing the citation and imminent danger order.
Jt. Ex. 1.
B. Order No. 8823572
Order No. 8823572 was issued on September 23, 2015 by MSHA inspector Robert
Peters, who observed the allegedly dangerous practice as he was driving to the mine site to
conduct an inspection. Tr. 33. Peters arrived at the Wingate Creek Mine around 8:20 a.m. Tr. 33.
As he drove toward the mine’s administrative offices, he observed truck driver William
Nasrallah loading a Tadano crane onto a lowboy trailer in preparation for removing the crane
from the mine site. Tr. 33, 122. Specifically, Peters first saw Nasrallah near the cab of the crane,
as if Nasrallah had just exited the cab. Tr. 34-35; P. Ex. 5 at 2. Peters then saw Nasrallah walk
from the cab area forward across the left front fender of the crane. Tr. 33, 35; P. Ex. 5 at 4.
Peters pulled his vehicle over to the side of the road, parked, exited his vehicle, and
approached Nasrallah at the crane. Tr. 38. As Peters was parking, Nasrallah descended from the
front of the crane to the ground using the stepped ladder at the front left side of the crane.
Tr. 114; R. Ex. 8.
After observing Nasrallah walking from the cab area of the crane over the front fender to
the front of the crane, Peters issued Imminent Danger Order No. 8823572 based on the following
practice:
Truck driver, William Nasrallah, was observed on top of the fender of the crane
number RT 481. The crane had been loaded on a low-boy trailer for transport. The
driver was observed leaving the cab of the crane, walking across the top of the

40 FMSHRC Page 1498

wheel fender to exit the crane to ground level. The drive was not using any
handholds or alternate means of fall protection[.] There was a danger of falling 7
feet to the road pavement. There was an exit/access ladder at the cab area which
could have been used to exit the crane to the ground level. This confirms an oral
imminent danger order issued to William Nasrallah, truck driver, at 0820 hours on
this date.4
P. Ex. 6. Peters first issued the order orally to Nasrallah after Nasrallah descended from the
crane. The order was likewise terminated at the same time at 8:21 a.m., when Nasrallah
descended to the ground. P. Ex. 6; Tr. 58-69.
C. Peters’ Conclusion that an Imminent Danger Existed was Not Objectively Reasonable.
The Secretary argues that Nasrallah’s travel across the crane’s wheel fender presented an
immediate danger of falling that would result in a permanently disabling injury, and Order
No. 8823572 should therefore be upheld. Tr. 39, 43, 52. Respondent argues that Nasrallah’s
ingress and egress procedure was in compliance with MSHA requirements and the
manufacturer’s recommendations, and therefore did not present an imminent danger. Tr. 27-29.
Peters first observed Nasrallah from about 15 yards away as he was driving onto the mine
site. Tr. 33, 47. Specifically, Peters first saw Nasrallah near the cab of the crane, as if Nasrallah
had just exited the cab. Tr. 34-35; P. Ex. 5 at 2. Peters then observed Nasrallah walk from the cab
of the crane across the left front wheel well fender towards the crane’s valve bank, a distance of
between six and seven feet. Tr. 36, 39, 51, 78-79; P. Ex. 5 at 1, 4. Although Peters did not
observe Nasrallah descend the stepped ladder at the front of the crane to reach the ground,
Nasrallah testified that his normal procedure for exiting the crane involved crossing over the left
front fender and descending via the stepped ladder at the front of the crane, rather than using the
rung ladder immediately below the cab. Tr. 38, 114; see also P. Ex. 5 at 3, 4; R. Ex. 11. The top
of the fender wheel well where Nasrallah crossed was seven feet above the ground, which
included the height of the lowboy trailer. Tr. 43; see also R. Ex. 3 (MSHA Program Policy Letter
indicating that compliance with OSHA’s standard requiring fall protection for work surfaces 6
feet or more above a lower level may also satisfy the requirements of section 56.15005).
Nasrallah’s undisputed testimony indicates that he was not using fall protection. Tr. 120.
When Peters first saw Nasrallah on top of the wheel fender without fall protection, he
was concerned that Nasrallah would “misstep or trip and stumble” and consequently fall off the
wheel well while crossing from the cab to the front of the crane. Tr. 36, 39, 42, 43, 51, 71, 72;
P. Ex. 5 at 1, 4. Peters specifically identified the act of walking across the fender without fall
protection as the imminent danger. Tr. 71. Peters testified that “anytime you’re walking in an
area . . . you’re subject to . . . stumbling or making a small misstep,” especially because
Nasrallah was presumably focused on his job and “he had everything on his mind except where
4

Nasrallah’s undisputed testimony indicates that the crane was manufactured by Tadano.
Tr. 122. Although the text of Order No. 8823572 indicates that the crane was an “RT 481,” that
particular model number does not correspond with any of the current production models nor the
discontinued production models listed on Tadano’s website. See https://tadanoamerica.com/ (last
accessed December 7, 2018).

40 FMSHRC Page 1499

he was.” Tr. 44.5 Peters further testified that Nasrallah’s position on top of the wheel fender was
“a dangerous position to be in” because the fender was “just real narrow” and was not designed
for use as a walkway. Tr. 42, 43, 52, 72. Peters estimated that the fender was about 20 inches
wide, but he did not take a measurement. Tr. 43-44.
As the Commission has concluded, the Secretary must prove, by a preponderance of the
evidence, “that the inspector reasonably concluded, based on information that was known or
reasonably available to him at the time the order was issued, that an imminent danger existed.”
Knife River Construction, 38 FMSHRC at 1291 (emphasis added). Peters first observed
Nasrallah on the crane from about 15 feet away, walking across the fender without fall
protection. Tr. 38-39, 47. Peters concluded that such circumstances presented a fall hazard, and
he was concerned that Nasrallah might continue to work on the crane without fall protection.
Tr. 39, 72. Accordingly, Peters immediately pulled over, parked his vehicle, approached the
crane, and issued Order No. 8823572. Tr. 38, 69-71. Based on Peters’ observations from 15
yards away, I am inclined to conclude that Peters’ initial belief that an imminent danger existed
was a reasonable one.
As noted, however, “a judge is not required to accept an inspector’s subjective perception
that an imminent danger existed, but, rather, must evaluate whether it was objectively reasonable
for the inspector to conclude that an imminent danger existed.” Knife River Construction,
38 FMSHRC at 1291 (emphasis added). At the time that Peters issued Order No. 8823572, his
subjective perception was that Nasrallah had, without fall protection, walked across a narrow,
20-inch-wide fender that was not designed for use as a walkway. Tr. 42, 43, 52, 72, 78-79. I find
that this subjective conclusion was not objectively reasonable because it failed to take into
account information that was reasonably available to Peters at the time that he issued the order.
Peters’ conclusion that Nasrallah’s walk across the fender presented an imminent danger
was based, in part, on his belief that the fender was “narrow” and only 20 inches wide. Tr. 42,
75. Robert Berry, Sims Crane’s safety director, testified that the fender was actually at least 36
inches wide, close to twice what Peters believed the width to be at the time he issued the order.6
Tr. 99. Moreover, the actual width of the fender constituted information that was reasonably
available to Peters at the time he issued Order No. 8823572. He could have measured the width
of the fender. Peters did, in fact, measure the fender’s height from the ground, but declined to
take a measurement of the fender’s width. Tr. 43-44.

5

Peters did not know what type of work Nasrallah was performing on the crane when he
first observed Nasrallah as he was driving up to the mine site. When he first saw Nasrallah on
top of the fender, he did not realize that Nasrallah was in the process of exiting the crane. Tr. 35,
39.
6

Although Peters estimated that the fender was 20 inches wide, he admitted he did not
take a measurement. Tr. 75. Both Berry and Nasrallah testified that the fender was approximately
three to three-and-a-half feet wide. Tr. 99, 125. I credit the mutually corroborative testimony of
Berry and Nasrallah, particularly because they are more familiar with the surface and because
Peters gave an estimate and did not take a measurement.

40 FMSHRC Page 1500

Peters also mistakenly assumed that the fender was not designed for use as a walkway,
and that assumption figured prominently in his conclusion that Nasrallah’s walk across the
fender presented an imminent danger. Tr. 42, 43, 52, 72, 78-79. Both Berry and Nasrallah,
however, credibly testified that the entire top surface of the crane, including the three-foot-wide
fender, was coated with non-skid materials and was designed to be used as a walkway. Tr. 99,
124; see also R. Ex. 10; R. Ex. 12. As found in my Decision and Order in Docket No. SE 20160081, the presence of anti-slip material suggests that the manufacturer intended the surface for
use as a walkway. Sims Crane, 39 FMSHRC 116, 123 (Jan. 2017) (ALJ). The fact that Peters
took photographs of the truck after issuing Order No. 8823572 indicates that he had ample
opportunity to examine the design and surface texture of the fender to determine whether it had,
in fact, been designed for use as a walkway.7
In sum, I find that Peters’ conclusion that Nasrallah’s travel across the fender presented
an imminent danger of falling was based on mistaken assumptions regarding the width of the
fender and the intended design of the fender. Peters mistakenly assumed that the fender was only
20 inches wide and had not been designed for use as a walkway. Factually contrary information
regarding the width of the fender and its design for use as a walkway was reasonably available to
Peters at the time he issued the order. Had he chosen to do so, Peters could have measured the
fender and examined the anti-slip surfacing before he issued the imminent danger order. I
therefore find that the Secretary has not shown, by a preponderance of the evidence, that Peters’
subjective conclusion regarding the imminent danger was objectively reasonable, because Peters
did not take into account information that was reasonably available to him at the time the order
was issued. See Knife River Construction, 38 FMSHRC at 1291 (“[A] Judge is not required to
accept an inspector’s subjective perception that an imminent danger existed, but, rather, must
evaluate whether it was objectively reasonable for the inspector to conclude that an imminent
danger existed.” ). Rather, I find that Nasrallah’s conduct of walking forward across the left front
fender of the three to three-and-a-half-foot-wide, anti-skid coated surface without using
handholds or fall protection could not reasonably be expected to cause death or serious physical
harm within a short period of time. Accordingly, I conclude that Peters abused his discretion in

7

On cross examination, Peters testified that the fact that the fender was covered in an
anti-skid material “would have had no bearing on anything.” Tr. 73. This directly conflicts with
his testimony that Nasrallah was in danger of falling because he was walking “in a place where it
wasn’t designed as a walkway,” and I therefore find no merit in his testimony that the anti-slip
material would have had no bearing on his conclusion regarding whether or not Nasrallah’s walk
across the fender presented an imminent danger. Tr. 72.

40 FMSHRC Page 1501

issuing Order No. 8823572 because no imminent danger existed under an objective analysis that
considers the totality of the circumstances.
IV. ORDER
For the reasons stated above, Order No. 8823572 is VACATED.

/s/ Thomas P. McCarthy
Thomas. P. McCarthy
Administrative Law Judge

Distribution:
Rachel Graeber, Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, SW, Room
7T10, Atlanta, GA 30303
W. Ben Hart, W. Ben Hart & Associates, 2916 East Park Avenue, Tallahassee, FL 32301
/ccc

40 FMSHRC Page 1502

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 10, 2018
ROBERT THOMAS,

DISCRIMINATION PROCEEDING
Complainant,
Docket No. WEST 2018-0402 DM

v.
CALPORTLAND COMPANY,
Respondent.

Mine: Sanderling Dredge
Mine ID: 45-03687

DECISION AND ORDER
Appearances: Colin F. McHugh, Navigate Law Group, Vancouver, WA, for Complainant;
Brian P. Lundgren & Erik M. Laiho, Davis Grimm Payne & Marra, Seattle, WA,
for Respondent.
Before:

Judge Miller

This case is before me on a complaint of discrimination brought by Robert Thomas
against CalPortland Company (“CalPortland”), pursuant to Section 105(c) of the Federal Mine
Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c) (“the Act”). Thomas alleges that
he was discharged from his employment at the mine because of his participation in an MSHA
investigation and because of safety and task training complaints he made to his immediate
supervisor. CalPortland denies the allegations, and states that Thomas abandoned his
employment and voluntarily resigned after failing to cooperate with management during an
investigation. The parties presented testimony and documentary evidence at a hearing
commencing on September 4, 2018, in Portland, Oregon. Based on the testimony and exhibits
presented at hearing, the stipulations of the parties, my observation of the demeanors of the
witnesses, and the post-hearing briefs of the parties, I find that Thomas was discharged in
violation of the Act and is entitled to back pay and other relief.
I. FINDINGS OF FACT
The findings of fact detailed below are based on the record as a whole and my careful
observation of the witnesses during their testimony. My credibility determinations are based in
part on my close observation of the witnesses' demeanors and voice intonations. In resolving any
conflicts in testimony, I have taken into consideration the interests of the witnesses,
corroboration or the lack thereof, and consistencies and inconsistencies in each witness's
testimony and among the testimonies of the various witnesses. Any failure to provide detail on
each witness's testimony should not be deemed a failure to have fully considered it. The fact that

40 FMSHRC Page 1503

some evidence is not discussed does not indicate that it was not considered. See Craig v. Apfel,
212 F.3d 433, 436 (8th Cir. 2000).
The Sanderling Dredge mine is a surface sand mine located in Vancouver, Washington.
CalPortland is the owner and operator of the dredge and is a mine operator subject to the
jurisdiction of the Act. Robert Thomas was an employee of CalPortland from March 7, 2002,
through the beginning of 2018, and he worked as a dredge operator for the company in Oregon
and Washington. Jt. Stips. ¶ 1.1 and 2.1. His discharge from employment at the mine is the
subject of this case.
Thomas worked at CalPortland, without any safety or other incident, for sixteen years. He
first worked as a deck hand and then became a dredge operator in 2015. As a dredge operator, he
worked on the Sanderling dredge. The Sanderling dredge is 220 feet long by 40 feet wide and is
moved by an attached towboat called the Johnny Peterson. The dredge is typically operated by
two persons on the barge, a dredge operator and a deck hand. The towboat is operated by a
captain and sometimes a deck hand, who are both employed by a contractor. The captain and
deck hands connect the towboat to the dredge each day to transport the dredge up and down the
Columbia River. The dredge operates by pulling sand through a suction system from the bottom
of the river, loading the sand evenly onto the barge, and then transporting it to a location on
shore to be unloaded. Tr. at 115-16. For the most part, the Sanderling dredge is docked in
Vancouver, Washington. A usual run for the dredge includes a four-hour journey in one direction
on the river, and then several hours retrieving sand from the river bottom and unloading the sand
before returning to port. Repairs and maintenance are done on the dredge often while it is
traveling on the river.
The miners who work on the Sanderling dredge typically arrive in the early morning
around 5 a.m. to do maintenance work to prepare for the day. The captain of the towboat arrives
shortly thereafter to connect the towboat to the dredge and begin the day’s trip on the river.
Typically, the Sanderling does one load during the day and returns to the dock around 5 p.m.
Occasionally, when the dredge travels farther on the river, it returns around 8 p.m. It is not
unusual for the miners to work 12 hours per day and sometimes as much as 80 hours per week.
During January 2018, Thomas was the dredge operator, and he worked on the Sanderling with
Joel McMillan, an experienced deck hand. Roger Ison captained the towboat, the Johnny
Peterson.
In the months leading up to the events at issue here, Thomas, McMillan, and other
CalPortland employees were required to work long hours, working 16-hour days and sometimes
around 80 hours per week. These long hours began in January 2017, when the mine changed
from two shifts working on the dredge to a single day shift. Over the course of the year, Thomas
and other employees grew concerned about their safety and health. They complained to their
supervisor and marine manager, Dean Demers, and asked for additional help to avoid the long
days and subsequent unsafe conditions. Both Thomas and McMillan agreed that working so
many hours caused them to be tired during the day, making it difficult to pay attention and work
safely. Thomas was particularly concerned that his lack of sleep was impacting his ability to
remain responsive and alert at work.

40 FMSHRC Page 1504

To address their concerns, Demers attempted to bring in personnel from the rock barges
to take over on some of the shifts. However, the practice resulted in an exchange of one problem
for another. The rock barge workers, who worked under OSHA regulations, did not have
experience with the tasks and work required on the dredge. Each barge employee, therefore,
required task-training and introduction to MSHA regulations before being able to fully perform
their duties. Instead of assigning a trainee to shadow Thomas or McMillan, Demers frequently
assigned a rock barge worker to the Sanderling and expected the one experienced worker to both
task train the new person and to perform their normal job duties. When it came time to certify
that a trainee had been task-trained, Demers asked Thomas to sign off in his capacity as a
designated training person. However, Thomas believed the new workers were not adequately
trained and refused to sign the task-training forms. McMillan signed one task training document,
but was not a designated training person. For the most part, Demers signed off on the task
training, but was not present and did not conduct the training himself.
Demers started his career in the Coast Guard and after retiring, began working at
CalPortland in July 2014 as a barge worker. He became the marine manager in July 2017 and
was assigned to manage four barges and the Sanderling dredge. The barges under Demers’
management are subject to OSHA jurisdiction and the Sanderling dredge is subject to MSHA
jurisdiction. While Demers had years of experience on various water craft, this was his first
experience on a project subject to MSHA jurisdiction.
Thomas and McMillan agreed at hearing that in the year leading up to Thomas’
termination, the Sanderling dredge was understaffed. Demers stepped in to help out occasionally
when they were short of help or when one of them was out on leave. While no testimony was
presented as to how Demers felt about stepping in to help, he did have a disagreement with
Thomas about sick time in November 2017. Thomas had requested a sick day and received pushback from Demers. McMillan testified at hearing that immediately following that disagreement,
Demers indicated to him that “Rob Thomas was done, he was fucking done at CalPortland.” Tr.
at 48.
On January 24, 2018, Thomas and McMillan were returning to the dock in Vancouver at
the end of a shift when they observed an MSHA inspector on the dock. As they headed
downriver, earlier in the day, they realized they needed to change out a valve on the barge. They
used air wrenches to remove the bolts, and extracted the valve from in between the pipes to
lower the valve onto the deck. See Comp. Ex. 14 (showing the bow of the Sanderling dredge,
where the valve was changed out). Thomas stood on the ladder to help lower the valve down
from its position. Thomas and McMillan testified that they were both wearing their personal
flotation devices (“PFDs”) during the change out. On their approach to the Vancouver railroad
bridge, McMillan climbed up on the ladder in order to weld the studs and return the valve.
McMillan testified that as he was welding, he saw Thomas remove his PFD and hang it on the
hooks outside of the lever room. McMillan watched Thomas walk from the lever room to the
table in the middle of the barge,1 use a cutting torch to cut a piece of steel, and put the PFD back
on once he was finished with the torch.

1

See Comp. Ex. 14.

40 FMSHRC Page 1505

Near the end of the day, as the dredge neared the port, Thomas saw MSHA Inspector
Mathew Johnson on the dock. From the dock, Inspector Johnson called out and asked if it was
company policy to not wear a PFD. Thomas responded that CalPortland’s policy requires miners
to wear PFDs. Once in port, Thomas admitted to Inspector Johnson that he had not worn his PFD
for up to ten minutes while operating the cutting torch at the welding table in the middle of the
deck. Thomas also indicated that he and McMillan had been on the ladder while working that
day, and that they had been on the ladder up to the third rung. Following their conversation,
Inspector Johnson asked to speak to a supervisor, so Thomas called Demers, who was working at
a different location. After some discussion with Demers, Thomas handed the phone to the
inspector. Demers was aware that Thomas had provided information to the inspector prior to
handing over the phone. After hanging up, Inspector Johnson completed his inspection of the
barge with Thomas. The inspector then issued a Section 104(d) citation to CalPortland for a
miner failing to wear a safety device or be tied off while working on the open portion of a
dredge.
Thomas returned to work around 6 a.m. the next morning, and began to repair the
transmission on the dredge. Demers arrived shortly after 7:30 a.m. He then accompanied Thomas
and McMillan to the dredge’s engine room and conducted a refresher PFD training in order to
terminate the citation. Following the training, Thomas explained to Demers that he was not on
the ladder without his PFD and that no one on board had witnessed him on the ladder without his
PFD. McMillan agreed with Thomas’statement, and said additionally that he was the one who
had used the ladder to return the valve. At around 8:30 a.m., Inspector Johnson returned to the
dock area and met with Demers to discuss the previous day’s violation. Thomas joined the
meeting so that he could respond to further questioning by Inspector Johnson. Once the inspector
left the dock, Thomas returned to work.
Demers and Dave McAuley, CalPortland’s regional operations manager, then met and the
two decided to suspend Thomas, without pay, pending further investigation. Following the
decision, Demers called McMillan to tell him he was coming down to the dredge to “get rid of”
Thomas. Tr. at 67. At about 10:30 a.m., Demers pulled up to the dock and suspended Thomas.
Thomas gathered his things and punched out for the day. The next morning, January 26, 2018,
Demers contacted Thomas and asked him to provide a written statement about the incident that
lead to the citation. Thomas prepared and emailed his statement to Demers on January 28. Comp.
Ex. 19.
On Saturday, January 27, Demers called Thomas and asked him to come to the office on
Monday, January 29, at 8:00 a.m. When Thomas arrived on Monday morning, he met with
Demers and Jeff Woods, the safety manager. Demers proceeded to read the narrative portion of
the MSHA citation aloud to Thomas. After hearing what the inspector had written, Thomas
asserted that the inspector’s statement was not correct. Thomas tried to explain further but at
some point felt it was not productive to respond to Woods’ follow-up questions. Woods left the
meeting and Demers asked Thomas to fill out an employee incident report. Thomas complied
and also submitted an additional, lengthier statement later that day. Comp. Ex. 22. At some time
that same day, McMillan was also asked to complete an employee incident report. Comp. Ex. 5.

40 FMSHRC Page 1506

Following their meeting with Thomas, Demers and McAuley met with Candy Strickland,
who is a human resources manager for CalPortland. They sought Strickland’s advice on next
steps. In their view, Thomas had become uncooperative with the investigation when he failed to
respond to the last questions Woods had asked. McAuley noted at hearing that it was unusual to
involve Strickland at this point, but insisted that no disciplinary decisions had been made at that
time. However, shortly after the meeting ended, Demers sent McAuley and Strickland a
corrective action form. The form contained Demers’ recommendation that Thomas be fired from
his employment for violating the PFD rule and for his lack of cooperation with the company
investigation.
On January 30, Thomas was asked again to return to the office for a meeting the next
day. Following that request, Strickland, Demers, and McAuley participated in a meeting with
management to brief them on the situation with Thomas. After that meeting, Demers sent an
email to numerous people, including contractors and employees of CalPortland, and attached a
corrective action form that included his recommendation to fire Thomas. Demers testified that he
sent the email by accident, he attempted to recall the email immediately, and he sent another
email asking recipients to disregard his previous email. Tr. at 389-93; Resp. Ex. N. He also
contacted Strickland and McAuley to let them know what had happened.
As Thomas was preparing to go to the scheduled meeting on January 31, he received a
phone call from Ison, the captain of the towboat, at around 6:30 a.m. Ison, who had received the
email from Demers, suggested to Thomas that he check his email. When Thomas opened his
email, he saw the email from Demers that was sent to his co-workers and contractors with the
attached corrective action form recommending Thomas’ termination. Comp. Exs. 1 and 2; Resp.
Ex. N at 4-6. After reading the email, Thomas believed that he had been terminated and sent a
text message to Demers to let him know that he would not attend their scheduled meeting. That
afternoon, Thomas hired an attorney. The next morning, February 1, Thomas received a call on
his personal phone from McAuley. Thomas did not recognize the number, but asked his stepdaughter to return the call on his behalf in order to determine who had called. She hung up when
McAuley identified himself on speaker phone. With his step-daughter in the room, Thomas
called McAuley back and said, “[y]ou have no business calling me on my personal phone, I don’t
know how you got it, you need to contact my attorney.” Tr. at 157. McAuley denied at hearing
that Thomas mentioned an attorney during the February 1st phone call, but Thomas and his stepdaughter remember it being a part of the conversation. Immediately following the phone call
with Thomas, McAuley contacted Strickland to discuss the matter. Together they determined that
this issue was now one for human resources to address.
Later that same day, Thomas directed his attorney to send a letter to Demers and
CalPortland about his intent to file a discrimination claim against them.2 On February 2,
Strickland spoke with a human resources supervisor at company headquarters about the situation
with Thomas. She was advised to begin the process of voluntary resignation based on a violation
of the company’s attendance policy. At this point, Thomas remained on suspension and believed
he had been terminated based upon the email he received from Demers. He had not been asked to
return to work. That Monday, February 5, Strickland drafted a letter notifying Thomas that he
2

The letter was dated February 2, 2018. At hearing, Demers testified that he did not
receive the letter from Thomas’ attorney until February 13, 2018.

40 FMSHRC Page 1507

was in violation of CalPortland’s attendance policy. Resp. Ex. R. The letter stated that if Thomas
did not contact human resources by Thursday, February 8, “he will be considered to have
voluntarily resigned.” Id. at 2. Thomas was sent two copies of the letter and refused to accept
delivery on both. Additionally, Demers testified that on February 5 and 6, 2018, he spoke with
MSHA Special Investigator Diane Watson over the phone. She indicated that MSHA would not
be opening a separate investigation against Thomas, that she understood he had been fired, and
that he may be filing a discrimination complaint. Following the phone calls with Ms. Watson,
Demers told McAuley that Thomas thought he had been terminated based on Demers’ January
30 email and that Thomas had retained counsel.
When Strickland did not hear back from Thomas, she sent him a second letter, dated
February 9, to notify him of his voluntary resignation. CalPortland asserts that Thomas
abandoned his employment and voluntarily resigned effective February 8, 2018. Thomas filed
his written discrimination complaint with MSHA on February 13, 2018.
II. ANALYSIS
Section 105(c)(1) of the Mine Act provides that a miner cannot be discharged,
discriminated against, or interfered with in the exercise of his statutory rights because he “has
filed or made a complaint under or related to this Act, including a complaint notifying the
operator … of an alleged danger or safety or health violation” or “because of the exercise by
such miner … of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). In order to
establish a prima facie case of discrimination under section 105(c)(1), a complaining miner must
prove by a preponderance of the evidence: (1) that he engaged in protected activity; and (2) that
the adverse action he complains of was motivated at least partially by that activity. Turner v.
Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds, 663 F.2d
1211 (3d Cir. 1981). The operator may rebut the prima facie case by showing “either that no
protected activity occurred or that the adverse action was in no part motivated by the protected
activity.” Turner, 33 FMSHRC at 1064. The operator may also defend affirmatively by proving
that, “it was also motivated by the miner’s unprotected activity and would have taken the adverse
action for the unprotected activity alone.” Id.
a.

Protected Activity

The Act’s discrimination provisions provide miners with protections against reprisal for
certain protected activities in the hope that miners will be willing to aid in the enforcement of the
Act and, in turn, improve overall safety. While Section 105(c)(1) does not include the term
“protected activity”, Commission cases have nevertheless found that the section defines certain
protected activities. An individual covered by Section 105(c)(1) engages in protected activity if
(1) he “has filed or made a complaint under or related to this Act, including a complaint . . . of an
alleged danger or safety or health violation[;]”, (2) he “is the subject of medical evaluations and
potential transfer under a standard published pursuant to section 101[;]”, (3) he “has instituted or
caused to be instituted any proceeding under or related to this Act or has testified or is about to

40 FMSHRC Page 1508

testify in any such proceeding[;]”, or (4) he has exercised “on behalf of himself or others . . . any
statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1).
The legislative history of the Mine Act states that that Congress intended “the scope of
the protected activities be broadly interpreted by the Secretary, and intends it to include not only
the filing of complaints seeking inspection under Section 104(f) or the participation in mine
inspections under Section 104(e), but also the refusal to work in conditions which are believed to
be unsafe or unhealthful and, the refusal to comply with orders which are violative of the Act or
any standard promulgated thereunder, or the participation by a miner or his representative in any
administrative and judicial proceeding under the Act.” S. Rep. No. 95-181 at 35 (1977)
(emphasis added). Moreover, the history notes that “the listing of protected rights contained in . .
[what eventually became section 105(c)(1)] is intended to be illustrative and not exclusive,” and
that the section should be “construed expansively to assure that miners will not be inhibited in
any way in exercising any rights afforded by the legislation.” Id. at 36.
I find that Thomas engaged in a number of activities protected by the Act. First, he
complained to his immediate supervisor, Dean Demers, that he was tired from working so many
hours, that it was unsafe because he could not concentrate, and that the dredge needed more
workers. The complaint was one of safety about his working conditions and is protected under
the Act. Second, Thomas expressed his concern about the lack of task training for the rock barge
employees who were moved over to work on the dredge. Several times, he refused to sign the
task training certificates because he believed the substitute workers were not trained adequately.
Third, Thomas spoke with MSHA Inspector Johnson when he boarded the dredge on January 24,
2018, and provided information that the inspector relied upon in issuing a citation. Finally,
Thomas let the mine know that he had hired an attorney and the mine was alerted that Thomas
was filing this discrimination complaint with MSHA. While there is some dispute about the
timing of the last activity, the mine was told to speak to Thomas’ attorney as of a February 1st
phone call and they became aware of the discrimination complaint no later than February 6,
2018, following a call from an MSHA supervisor. Both of these notifications occurred prior to
the second notice of termination given to Thomas.
CalPortland argues in its post-hearing brief that Thomas’ complaint should be dismissed
because he did not include all of these protected activities in his original complaint to MSHA.
The mine points to Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991) and contends
that Thomas’ private Section 105(c)(3) complaint is limited to the specific activities he identified
in his original MSHA complaint. However, recent Commission case law does not support the
mine’s narrow reading of Hatfield. In Sec’y v. Hopkins County Coal, 38 FMSHRC 1317 (June
2016), the Commission addressed a similar argument. The majority concluded that it is not the
terms of the initial complaint that control the scope of the Section 105(c)(3) action; it is whether
or not the Secretary investigated the miner’s broader claim of discrimination. Id. at 1323 n.9.
MSHA did investigate the discrimination complaint that alleged Thomas was terminated for
cooperating in an MSHA inspection. After the investigation, MSHA notified Thomas that they
would not take his case further, and subsequently he filed a complaint here that included each
protected activity raised at hearing. In addition, the acts that Thomas alleges as protected acts
were all the subject of various types of discovery in this case. The mine therefore was aware of
the allegations and had ample time to explore them and present a defense at hearing.

40 FMSHRC Page 1509

The mine also contends that Thomas did not engage in any protected activity. It relies on
evidence at hearing wherein the attorney for the mine operator read a list of protected activities
which included making a complaint to MSHA to each of the mine’s witnesses, and asked each
witness if they were aware that Thomas had engaged in that particular activity. In response to the
attorney’s leading questions, each witness for the mine replied “no.” I am not persuaded and
instead find that there is ample evidence in the record to demonstrate that Thomas engaged in a
number of activities commencing both prior to the MSHA citation issued in January and after.
b.

Adverse Action

Pursuant to the provisions of the Mine Act, the Commission has defined “adverse action”
to mean “an action of commission or omission by the operator subjecting the affected miner to
discipline or a detriment in his employment relationship.” Sec’y on behalf of Pendley v. Highland
Mining Co., 34 FMSHRC 1919, 1930 (Aug. 2012). Thomas was suspended without pay from
CalPortland on January 25, 2018, pending an investigation into the events that resulted in the
January 24, 2018, MSHA citation. Demers, CalPortland’s Marine Manager, sent Thomas a draft
termination memo on January 30, 2018. After reading that email on January 31, 2018, Thomas
reasonably believed he had been fired from his employment. On February 9, 2018, CalPortland’s
Human Resources Manager sent Thomas a letter explaining that, in their view, Thomas had
decided to voluntarily resign his position by failing to contact CalPortland by February 8, as had
been requested in a February 5, 2018 letter to Thomas. Thomas was first suspended and then
terminated from his employment by email on January 30, 2018, with a follow up written
termination effective February 9, 2018 and therefore has shown several adverse actions that were
taken against him.
c.

Discriminatory Motive

Thomas must next demonstrate that his protected activity is connected to the adverse
action. A complainant is not required to provide direct evidence of discriminatory motive;
“circumstantial evidence . . . and reasonable inferences drawn therefrom may be used to sustain a
prima facie case.” Turner, 33 FMSHRC at 1066 (quoting Bradley v. Belva Coal Co., 4 FMSHRC
982, 992 (June 1982)). Factors that may tend to prove a discriminatory motive for the adverse
action include the operator’s knowledge of the protected activity, the operator’s hostility or
animus towards the protected activity, the timing of the adverse action in relation to the protected
activity, and disparate treatment as compared to other employees. Turner, 33 FMSHRC at 1066;
Sec’y on behalf of Chacon v. Phelps Dodge Corporation, 3 FMSHRC 2508, 2510 (Nov. 1981),
rev’d on other grounds, 709 F.2d 86 (D.C. Cir. 1983).
In this case, two factors are most persuasive: knowledge and timing. An operator’s
knowledge of protected activity “is probably the single most important aspect of a circumstantial
case.” Chacon, 3 FMSHRC at 2510. Demers, the manager at the mine and the person who
ultimately recommended termination, knew of Thomas’ protected activity. Thomas testified that
he had complained to Demers repeatedly about the long work hours and the impact those hours
had on his safety and health. McMillian made similar complaints to Demers. In addition, Thomas
complained about the use of workers who were not adequately trained and he refused to sign the
task training certificates. In some instances, Demers signed them without having worked

40 FMSHRC Page 1510

alongside those being trained. Demers denied that he had conversations about long hours or
training, but instead remembered a conversation about Thomas wanting a day off. McMillian
explained that shortly after the many conversations about safety and training, Demers showed up
to take Thomas’ place while he was out sick and told McMillan at that time that Thomas was
done working at CalPortland. Demers was upset about Thomas’ actions, not only wanting a day
off, but the related issues of safety, long hours, and training. Based on my observations of the
demeanor of the witnesses at hearing, I credit Thomas’ and McMillan’s testimony on this matter,
over Demers’testimony, which appeared rehearsed.
Next, Demers was aware of Thomas’discussions with the MSHA inspector on January 24
and 25. Thomas handed the phone to Inspector Johnson so he could speak with Demers on
January 24, and Thomas spoke to the inspector in front of Demers on January 25, shortly before
his suspension became effective. Additionally, Demers had a number of follow up discussions
with the inspector wherein the information provided by Thomas was discussed. Demers indicates
that he did not tell McAuley or Strickland about the actions taken by Thomas, but it was Demers
who pushed for termination and made the initial recommendation to fire Thomas. Under
Commission case law, Demers’ knowledge of Thomas’ protected activity is therefore imputed to
McAuley and Strickland. See Con Ag., Inc. v. Sec’y, 897 F.3d 693, 702 (6th Cir. 2018) (finding
that the ALJ reasonably imputed a mine manager’s knowledge of a miner’s protected activity to
upper management in making a termination decision).
Timing is another factor that weighs in favor of Thomas. The Commission has noted that
it “applies no hard and fast criteria in determining coincidence in time . . . [s]urrounding factors
and circumstances may influence the effect to be given.” Hicks v. Cobra Mining Inc., 13
FMSHRC 523, 531 (Apr. 1991). According to testimony at hearing, both Thomas and McMillan
made repeated safety and health complaints to Demers in the months leading up to Thomas’
suspension and termination. During that same time frame, they consistently complained about
the lack of task training that the temporary dredge barge workers were receiving. In midNovember 2017, Thomas requested a sick day but Demers was reluctant to approve the request
because he did not have enough workers for the dredge and became angry with Thomas.
McMillan testified that immediately following the sick day disagreement, Demers wanted
Thomas gone from CalPortland. Thomas testified that he thought their disagreement had been
settled.
Finally, Thomas testified that Demers continued to brush off his safety complaints,
suggesting hostility toward the protected activity. Just weeks after his complaints, Thomas was
observed without his life jacket on the barge and discussed the matter with the inspector,
resulting in a citation. Demers was justifiably upset that Thomas violated the Mine Act by failing
to wear his PFD while working on the dredge and later failed to respond to all of the questions
asked by Wood regarding the citation. However, the mine insists that Thomas was not terminated
for either of those actions, but was instead terminated because he violated the mine’s attendance
policy in part by failing to show up for a requested meeting. Yet, Thomas advised his supervisor
that he would not attend the meeting and no further effort was made by the mine to reschedule
the meeting, or gather more information from Thomas.

40 FMSHRC Page 1511

There is no evidence in the record to support an argument by CalPortland that Thomas
was treated like other employees who violated a safety rule. In fact, no evidence in the record
suggests that violating a safety rule is the type of offense that leads to automatic termination. Nor
is there any evidence to demonstrate that the failure of a long term employee to answer the
several questions asked by a member of the safety department is an offense that leads to firing at
Calportland. At hearing, the mine presented some evidence regarding employee discipline but
nothing to indicate how the mine operator normally handled incidents where an employee’s
activity resulted in a citation. Thomas worked for the mine for 16 years without any safety
related incident, and yet, he was summarily terminated for this violation in Demers’ email.
CalPortland continues to deny that Thomas was terminated for violating a safety rule, and
instead argues that he was terminated in part for failing to comply with an investigation into the
incident, thereby leading to the ultimate allegation that he violated the attendance policy. The
pattern and reasoning the mine posits is not persuasive. Thomas failed to answer some questions
of Jeff Woods and immediately Demers and McAuley determined he was not cooperative. Still
Thomas continued to submit further written information as requested. Thomas cancelled a
meeting at the mine only after receiving an email letting him know he was being fired. No
further phone calls, texts, or emails (the method of communication throughout the incident),
were sent to Thomas to discuss the matter or attempt to reschedule or gather further information.
Instead for the first time, a letter was mailed from the human resources department.
I find that there is sufficient circumstantial evidence to demonstrate a connection between
Thomas’ discharge and his protected activity. Demers said he would get rid of Thomas shortly
after the first discussions of safety regarding long hours and task training. Additionally, Demers
decided to terminate Thomas immediately following the discussion with MSHA without
considering his past history or long-term employment with the mine. Finally, Demers asserts that
Thomas did not cooperate with the investigation, but the only person who could testify about that
lack of cooperation, Jeff Woods, was noticeably absent from the hearing.
d.

Operator’s Rebuttal

CalPortland denies that Thomas was terminated in violation of the Mine Act, and argues
instead that no protected activity occurred and that any adverse action was not motivated in any
part by protected activity. As discussed in more detail above, I have found that Thomas engaged
in protected activity by making safety complaints, voicing concerns about task training, speaking
with the MSHA inspector, and notifying the mine that he was filing a discrimination complaint
against the mine. The mine argues that Thomas was terminated, not for any reason related to that
protected activity but, for a violation of the company attendance policy. Based on the evidence
available to me, I find that CalPortland has failed to demonstrate that the termination of Thomas’
employment was in no part related to his protected activity and therefore, Calportland has failed
to rebut Thomas’ prima facie case.
CalPortland presented witness testimony in an effort to justify firing Thomas based on his
violation of the PFD safety rule, along with his alleged unwillingness to cooperate in the safety
investigation. Company representatives testified at great length about the safety and training
programs at the mine. All of the witnesses agreed that the mine’s safety plan includes a rule

40 FMSHRC Page 1512

mandating that employees wear a PFD while on the dredge and, for the most part, life jackets are
worn in accordance with that rule. Demers, Thomas’ immediate supervisor, spent a majority of
his testimony explaining how serious it was not to wear a PFD, and what could happen if
someone fell into the river without wearing a PFD. Both Demers and Chad Blanchard,3 the
corporate safety director, testified that they had never seen anyone on deck without a PFD.
However, McMillan said that he observed another supervisor enter onto the barge several days
after the January 24 incident without a life jacket. It is unrefuted that it is important to wear a
flotation device on the barge and failure to wear it could result in a serious injury were the miner
to fall into the very cold waters of the Columbia River.
CalPortland points out that it relied on the information provided by Inspector Johnson,
regarding Thomas’ actions and that the mine took the inspector at his word as set forth in the
citation, even though the citation conflicts with the information provided by Thomas and
McMillan. The citation states that Inspector Johnson saw Thomas walking around the deck and
performing work on the ladder that was within 8 feet of the edge of the dredge barge deck in an
elevated position approximately 3 feet (or 3 ladder rungs) above deck level. Resp. Ex. I. While
the mine is correct to have concerns about the ramifications of not wearing a PFD and receiving
a citation, it asserts that it did not terminate Thomas for those reasons. Instead, CalPortland
argues that there is no evidence that Thomas would have been terminated based on Demers’
recommendation and argues Thomas was actually terminated in part for his failure to cooperate
in an internal investigation regarding the citation. Demers’ memo recommending firing includes
failure to cooperate, prior to Thomas making a decision not to attend another meeting with the
mine. Therefore, the uncooperativeness alleged by Calportland in Demers email includes the
single incident with Woods. After that memo, Thomas informed Demers that he would not attend
the next scheduled meeting, which resulted in a finding that Thomas had violated the attendance
policy. The alleged violation of the attendance policy, then, is based upon Thomas’ decision not
to attend the meeting of January 31. However, Thomas did provide notice of his intent not to
attend the meeting to his supervisor and the meeting was not rescheduled nor were any other
directions given to Thomas.
CalPortland’s witnesses agreed that the company typically conducts an investigation
following a workplace safety incident. While company witnesses testified that conducting an
investigation was a standard practice, there was little discussion as to the process those
investigations routinely follow. In this instance, according to McAuley, it was Demers’ job, as
the manager of the Sanderling dredge, to lead the investigation into the safety incident with
assistance from someone in the safety department, which in this case was Woods. McAuley
denied having any input into the investigatory process or the disciplinary recommendation,
stating that it was up to Demers to draft an initial opinion as to discipline, which would then be
vetted through human resources and brought to McAuley for final approval.
Here, the investigation into Thomas’ conduct began shortly after the incident on January
24. Demers and McAuley held or scheduled numerous meetings with Thomas both before and
following his suspension from work. Thomas argues that he cooperated with the investigation by
speaking with Inspector Johnson and communicating with management both on site and at the
3

Blanchard was not involved in the Thomas investigation, but testified that Woods told
him about the citation.

40 FMSHRC Page 1513

Scappoose location regarding the incident on January 24, 2018. Thomas also testified that he
participated in the January 29 meeting, which was the only one attended by Woods, but stopped
answering questions once it became clear to him that Demers and Woods had little interest in his
description of the incident. The investigation involved four statements: three written by Thomas
and one written by McMillan. McMillan’s written statement did not state conclusively whether
or not he observed Thomas without a PFD while on the ladder, but he made additional
statements and testified at hearing, suggesting that he agreed with Thomas’ characterization of
the incident. The observations of the inspector as written in the citation were also part of the
investigation. However, Ison, the towboat captain, was not questioned by CalPortland, and
Woods, the safety manager in charge of the investigation, gave no recorded statement or opinion
as to the nature or outcome of the investigation. Woods notably did not testify and the only
mention of Woods in the testimony at hearing came from Demers, who claimed that Woods was
not happy with Thomas’ responses to questioning and left the room. Following that January 29,
2018 meeting, Demers decided that Thomas had been uncooperative with the investigatory
process, relayed his opinion to McAuley, and together they contacted Strickland in human
resources. Given the statements provided by Thomas, as well as his attendance at various
meetings, I find that the arguments regarding Thomas’ refusal to cooperate in the investigation
are pretext.
Immediately after contacting Strickland, Demers recommended in writing that Thomas
be fired due to the seriousness of the PFD rule violation and for his failure to cooperate in the
company’s investigation process. Demers gave no further justification for his recommendation to
fire a 16-year employee with no other safety violations on his record but, instead, sent his
recommendation by email to at least 50 contractors and co-workers of Thomas, albeit
inadvertently. Demers did not base his recommendation on any apparent company discipline
policy. The evidence shows, however, that Thomas did participate in the investigation and only
became uncooperative after repeated questioning about issues he had already addressed.4 In the
five days following the incident, as described above, Thomas prepared and submitted three
statements while suspended from work and participated in at least three meetings. While Thomas
did refuse to answer a few questions at the last meeting with Woods, he continued with the
investigation by providing a lengthier written statement regarding the incident. Therefore, I find
that Demers explanation regarding his recommendation to fire Thomas does not have a basis in
fact. Instead, based on his description of the incident and ensuing investigation, Demers seemed
unconcerned with objectively assessing the situation. Nor did he seem concerned about actually
completing the investigation and considering the recommendations of the safety department.
Next, I find that Demers and McAuley were overly rehearsed in their testimony, using or
agreeing to terminology that was coined to spin the facts in CalPortland’s favor. Most of the
questioning was in the form of leading, and often by virtue of having documents, including
emails, in front of the witnesses to bolster their testimony. For example, Demers testified that he
believed what the inspector told him about Thomas’ “PFD misconduct,” and that same term was
used by each witness for CalPortland. Demers and McAuley were careful to note that they
4

In the context of a retaliation case under a different statute, it has been recognized that a
company’s justification for interrogating an employee was pretextual when the company already
knew the answers to the questions it was asking that employee. United Serv. Auto. Ass’n v.
NLRB, 387 F.3d 908, 916 (D.C. Cir. 2004).

40 FMSHRC Page 1514

decided to suspend Thomas “pending an investigation” into the facts surrounding the citation,
rather than as discipline for the alleged conduct. While some of this testimony is accurate, use of
the same coined term by each witness causes the evidence to lose its element of truthfulness.
Therefore, I do not find either Demers or McAuley to be credible witnesses.
Furthermore, Woods’ absence at hearing leads me to the conclusion that he may have had
some unfavorable information about CalPortland’s investigation into the incident. “It is well
established that an adverse inference may be drawn against a party if the party fails to call as a
material witness a person who may reasonably be assumed to be favorably disposed toward that
party or a person who is peculiarly available to that party.” Sec’y of Labor v. Virginia Slate Co.,
23 FMSHRC 482, 485 (May 2001). Woods was a main participant in CalPortland’s investigation
and led the January 29, 2018 meeting. While the mine acknowledged that Woods is now a
former employee, there was no indication that the mine made any attempt to contact him.
e.

Affirmative Defense

Having found that Thomas has established a prima facie case of discrimination, I must
now consider whether CalPortland discharged him in part for unprotected activity and “would
have taken the adverse action for the unprotected activity alone.” Sec’y on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981); Sec’y on behalf of Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2799-2800 (Oct. 1980). The Commission has
articulated several indicia of legitimate non-discriminatory reasons for an employer's adverse
action. These include evidence of the miner's unsatisfactory past work record, prior warnings to
the miner, past discipline consistent with that meted out to the complainant, and personnel rules
or practices forbidding the conduct in question. Bradley, 4 FMSHRC at 993. The Commission
has explained that an affirmative defense should not be “examined superficially or be approved
automatically once offered.” Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982).
In reviewing affirmative defenses, the judge must “determine whether they are credible and, if
so, whether they would have motivated the particular operator as claimed.” Bradley, 4 FMSHRC
at 993. The Commission has stated that, “pretext may be found . . . where the asserted
justification is weak, implausible, or out of line with the operator's normal business practices.”
Sec'y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990).
An affirmative defense requires more than showing that the operator’s business
justification is plausible. As the Commission has noted, evidence of practices and policies
consistent with the adverse action taken may be persuasive support of an operator’s defense of
justifiable cause. Bradley, 4 FMSHRC at 993. CalPortland’s attendance policy was introduced
into evidence, along with examples of individuals who were designated as having “voluntarily
resigned” for violating the policy. Resp. Ex. FF. However, I find that the practices and policies
described by Calportland are not consistent with the evidence in the record. The justification is
weak and implausible. I find instead that the mine has failed to demonstrate that it would have
taken the adverse action based on the mine’s attendance policy alone.
First, the mine did not meet its burden to show that Thomas’ violation of a safety
regulation is behavior that results in immediate termination, or is an activity that alone would
have justified termination. Instead, the mine demonstrated it is a serious violation and it could

40 FMSHRC Page 1515

result in serious injury. There is no indication that Thomas had a history of violating safety
regulations or that he had received any kind of written reprimand, or even that there was a policy
of progressive discipline. There was some evidence that Thomas had a disagreement with
Demers in November, and that one time in the past he had received a warning about some
behavior but, the mine witnesses testified that neither of those actions had anything to do with
his termination. The evidence shows that Thomas worked for CalPortland and on the Sanderling
dredge for 16 years without any safety incident, and the record contains no evidence to
demonstrate that an employee with such a record would summarily be terminated for violating a
safety standard. Second, CalPortland argues that it would have taken action against Thomas
because his failure to report to work or respond to management after February 1, 2018,
constituted an abandonment of his position. According to the mine, when Thomas did not return
calls or respond to the February 5, 2018 letter notifying him he was in violation of the attendance
policy, it had no choice but to terminate him based on a voluntary resignation. I am not
convinced by CalPortland’s asserted justification for terminating Thomas’ employment.
The mine argues that Thomas violated the company’s attendance policy while he was on
suspension, and after he reasonably believed that he had been fired by the mine. No call, text
message, or email was made to Thomas lifting the suspension or explaining that the email sent
by Demers was not, in fact, a termination of his employment. Thomas had been suspended
pending an investigation on January 25, and he continued to participate in the investigation until
he received the email from Demers. Based upon the understanding that his employment had been
terminated, Thomas cancelled his next meeting, and then spoke with McAuley on February 1.
Thomas informed McAuley that he had hired an attorney to file a discrimination complaint.
There is no evidence to support how Thomas would have been expected to attend meetings, be
part of an internal investigation, or to return to work following those events.
Finally, the timing of the “voluntary resignation” letter fits with the information learned
from the mine regarding Thomas’ plan to file a complaint of discrimination. Even if McAuley
did not hear Thomas’ statement regarding the attorney on February 1, 2018, there is no dispute
that on or around February 5, 2018, Demers was notified by MSHA that they were not going to
pursue a case against Thomas regarding the citation issued to the mine, and that Thomas was
intending to file a discrimination case against the mine. 5 During that same timeframe, Strickland
sent Thomas the initial attendance policy violation letter. These actions, when viewed in the
context of the incident as a whole, suggest that CalPortland used its attendance policy as pretext
for terminating Thomas’ employment. Based on the evidence, I do not believe that Thomas
abandoned his position with CalPortland; instead, he was first fired as a result of the email sent
by Demers and then fired a second time by a formal letter based on an attendance policy
violation that he could not cure.

5

CalPortland addresses this phone call in its post-hearing brief, and argues that counsel
for Thomas tried to suggest at hearing that the MSHA investigator violated her duty of
confidentiality by warning Demers that Thomas’ discrimination complaint was imminent. I have
considered the mine’s argument and, based on my review of the testimony, I find that it is wholly
without merit.

40 FMSHRC Page 1516

III. PENALTY
Thomas has brought this case individually without the assistance of the Secretary and
thus no penalty has been proposed by the Secretary. Pursuant to Commission Procedural Rule
44(b), 29 C.F.R. § 2700.44(b), a copy of this decision is being sent to the Secretary for the
assessment of a civil penalty against CalPortland Company within 45 days.
IV. DAMAGES AND RELIEF
The Mine Act gives the Commission the authority in proceedings under Section 105(c)(3)
to assess against an operator “a sum equal to the aggregate amount of all costs and expenses
(including attorney’s fees) as determined by the Commission to have been reasonably incurred
by the miner.” 30 U.S.C. § 815(c)(3). The Commission has explained that back pay “is the sum a
miner would have earned but for the discrimination, less his net interim earnings. Gross back pay
encompasses not only wages, but also any accompanying fringe benefits, payments, or
contributions constituting integral parts of an employer’s overall wage-benefit package.” Ross v.
Shamrock Coal Co., 15 FMSHRC 972, 976 (June 1993). An award of attorney’s fees is “a matter
that lies within the sound discretion of the trial judge.” Sec’y on behalf of Ribel v. E. Assoc. Coal
Corp., 7 FMSHRC 2015, 2017 (Dec. 1985).
Prior to hearing, the parties were given the opportunity to submit calculations of back pay
and other damages potentially owed to Thomas. Counsel for Thomas submitted proposed relief
on August 1, 2018. CalPortland did not submit back pay calculations. However, both parties
stipulated that Thomas earned $26.90 as an hourly employee and worked 53.9 hours on average
per week while employed by CalPortland. Jt. Stips. ¶¶ 3-4.6 Both parties also stipulated to
monthly totals for certain benefits, including medical insurance, life insurance, short-term
disability insurance, and voluntary accident, death, and dismemberment insurance. Am. Jt. Stips
¶¶ B.1, 3-5. Those amounts are:
•

Lost benefits:
o $2,105.01 per month for medical insurance;
o $12.77 per month for basic life insurance;
o $2.60 per month for short-term disability insurance;
o $2.02 per month for voluntary accident, death, and dismemberment insurance;
o 12% per year of base pay towards company pension benefits.

The requests for back pay, lost benefits, and attorney’s fees are appropriate. I find that
Thomas is entitled to total back pay of $49,281.09. The total back pay amount reflects a weekly
rate of approximately $1,637.00 that Thomas would have earned at CalPortland from January 26
through November 30, minus a weekly rate of approximately $852.00 that he has earned at A-1
Redi Mix from May 27 through November 30, 2018. The back pay amount will increase until
Thomas is reinstated to his former position and full payment is made with interest. I further find
that Thomas is entitled to the monetary value of his lost insurance benefits, in the amount of
$21,223.30, calculated monthly from February through November 2018. Additionally, Thomas is
6

Based on payroll reports submitted into evidence as Respondent’s Exhibit EE, Thomas
was paid at an overtime rate of $40.35 beginning in August 2017.

40 FMSHRC Page 1517

entitled to lost company pension benefits, which amounts to $5,681.28 and is calculated from the
total base pay he would have earned from January 26 through November 30, 2018, at
CalPortland. In sum, Thomas is due a total payment of $76,185.67, calculated through November
30.
Thomas is also entitled to reasonable attorneys’ fees. 30 U.S.C. § 815(c)(3). To evaluate
reasonableness, courts typically consider an attorney’s reasonable hourly rate and whether the
number of hours expended on the case was reasonable. See Perdue v. Kenny A. ex rel. Winn, 599
U.S. 542, 551-52 (2010). While counsel for Thomas submitted a proposed award amount of at
least $16,000, counsel did not provide the information necessary to evaluate the reasonableness
of those attorneys’ fees. Therefore, subject to the submission of itemized invoices, this Court will
consider the reasonableness of counsel’s fees and set an appropriate award. Counsel for Thomas
has 10 days from the date of this order to submit the requested invoices to opposing counsel and
this Court. Counsel for CalPortland will then have 10 days following receipt of the invoices to
agree to or object to the reasonableness of Thomas’ attorneys’ fees. The Court will issue an
award for reasonable attorneys’ fees prior to the date on which this decision becomes final.
Under Commission case law, Thomas is entitled to interest until the damages’ amount is
paid at the short-term Federal underpayment rate established by the IRS. See Local Union 2274,
District 28, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493, 1504-06 (Nov. 1988).
V. ORDER
Respondent is hereby ORDERED to reinstate Robert Thomas to his former position with
CalPortland with the same pay and benefits as he would have accrued had he remained
employed. The mine shall remove from Thomas’ personnel file any mention of any employment
action stemming from this incident and shall post a notice at the nearest CalPortland land-based
office, in a conspicuous location, and on paper at least 8 x 10 size, setting forth the rights of
miners protected by 105(c) of the Mine Act.
Respondent is further ORDERED to pay back pay and lost benefits to Thomas in the
amount of $76,185.67 plus quarterly interest at the Federal underpayment rate through the date
of payment, to be calculated by the parties. All back pay and benefits’ awards, including
attorneys' fees, shall be recalculated and brought up to date with interest as of the date paid, and
shall continue until Thomas is reinstated. See Sec’y of Labor on behalf of Bailey v. Ark.-Carbona
Co., 5 FMSHRC 2042, 2053 n.1 (Dec. 1983). Such payments shall be made within 30 days of
the date of this decision. This case is referred to MSHA for assessment of a civil penalty that
must be filed within 45 days of the date of this decision.

/s/ Margaret A. Miller
Margaret A. Miller
Administrative Law Judge

40 FMSHRC Page 1518

Distribution: (U.S. Certified First Class Mail)
Robert Thomas, 566 23rd Avenue, Longview, WA 98632
Colin McHugh, Navigate Law Group, 101 East 8th Street, Ste. 260, Vancouver, WA 98660
Brian Lundgren & Erik Laiho, Davis Grimm Payne & Marra, 701 5th Avenue, Suite 4040,
Seattle, WA 98104
Jason Grover, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety &
Health, 201 12th Street South, Suite 401, Arlington, VA 22202
Melanie Garris, Civil Penalty Compliance Office, U.S. Department of Labor, MSHA, 201 12th
Street South, Suite 500, Arlington, VA 22202

40 FMSHRC Page 1519

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 12, 2018
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 2018-0228
A.C. No. 41-01335-459015

v.
MARTIN MARIETTA MATERIALS
SOUTHWEST, INC.,
Respondent.

Mine: Beckmann Quarry
DECISION

Appearances:

Christopher D. Lopez-Loftis, Esq., U.S. Department of Labor, Office of
the Solicitor, Dallas, Texas, for Petitioner;
Benjamin J. Ross, Esq., Jackson Kelly PLLC, Denver, Colorado, for
Respondent.

Before:

Judge Simonton
I. INTRODUCTION

This case is before me on a petition for assessment of civil penalty filed by the Secretary
of Labor, acting through the Mine Safety and Health Administration, pursuant to the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 801.1 This case involves Citation
No. 9356617 issued to Martin Marietta Materials Southwest, Inc. (“Martin Marietta” or
“Respondent”), in August 2017. The Secretary proposed a penalty of $1,806.00. The citation was
designated as significant and substantial (S&S), reasonably likely to result in an injury causing
lost workdays or restricted duty, and involving high negligence on the part of the operator.
A hearing was held on September 12, 2018, in San Antonio, Texas. MSHA Inspector
Emilio Perales testified for the Secretary. Howard Evans, the primary superintendent at the
Beckmann Quarry, testified for Martin Marietta. After fully considering the testimony and
evidence presented at hearing, I find that the Secretary met his burden of proof in establishing
the violation as issued. I assess the proposed penalty of $1,806.00.

1

In this decision, the transcript, the joint stipulations, the Secretary’s exhibits, and
Respondent’s exhibits are abbreviated as “Tr.,” “Jt. Stips.,” “Sec’y Ex. #,” and “Resp. Ex. #,”
respectively.

40 FMSHRC Page 1520

II. STIPULATIONS OF FACT
The parties entered the following stipulations of fact into the record at hearing:
1. Martin Marietta Materials Southwest, Inc. (hereinafter, “Respondent”) was at all times
relevant to this proceeding engaged in mining activities at the Beckmann Quarry Mine.
2. Respondent’s mining operations affect interstate commerce.
3. Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, 30 U.S.C. § 801 et. seq. (The “Mine Act” or “Act”).
4. Respondent is an “operator” as that word is defined in section 3(d) of the Mine Act, 30
U.S.C. § 803(d), at the Beckmann Quarry Mine (Federal Mine I.D. No., Mine ID 41-01335)
where the contested citation in this proceeding was issued.
5. The Administrative Law Judge has jurisdiction over this proceeding pursuant to section
105 of the Act.
6. On or about August 29, 2017, Mine Safety and Health Administration (“MSHA”)
Inspector Emilio Perales was acting as a duly authorized representatives [sic] of the United
States Secretary of Labor, assigned to MSHA, and was acting in his official capacity when
conducting the inspection and issuing the citation from docket CENT 2018-0228, at issue in
this proceeding.
7. The citation at issue in this proceeding was properly served upon Respondent as required
by the Act and was properly contested by Respondent.
8. The citation at issue in this proceeding may be admitted into evidence by stipulation for
the purpose of establishing their [sic] issuance. Materials published on MSHA’s website or
otherwise published by MSHA may also be admitted into evidence by stipulation for the
purpose of establishing their issuance and availability. The truthfulness or relevancy of any
statements asserted therein is not stipulated to by the parties.
9. Respondent demonstrated good faith in abating the violations.
10. The penalties proposed by the Secretary in this case will not affect the ability of
Respondent to continue in business.

40 FMSHRC Page 1521

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY
On August 29, 2017, MSHA Inspector Emilio Perales2 visited the Beckmann Quarry to
conduct an inspection. Tr. 11. He met with Robert Deware, the acting plant manager, and
Howard Evans, the supervisor for the primary section of the mine. Tr. 11. Perales explained the
general operation at the mine: workers drill holes in a pattern at the top of the wall, then fill them
with explosives; they initiate a blast, which causes material to come down from the wall; and
loaders pick up the material to be hauled away and processed. Tr. 17, 27. Before workers are
allowed near the wall, the operator must check the area for stability and address any loose
materials. Tr. 16, 27. In a process known as scaling, miners use a rock breaker to knock down
any loose material. Tr. 14, 30. Perales explained that scaling is practiced industry-wide and must
be done after every shot. Tr. 26, 27. The scaling process is the subject of this citation.
Perales and the inspection party began the inspection at the highwall. Perales observed
loose, unconsolidated material in several places on the highwall. A portion of the highwall had
already been mucked out, and Perales observed loose unconsolidated rock on the corner that had
not been scaled. Tr. 12. There was also a “back break” to one side of the corner. Tr. 12. Perales
explained that “back breakage” refers to a crack in the rock indicating that energy has gone back
into the highwall, causing material to loosen. Tr. 16. He observed a significant amount of loose
material in the breakage. Tr. 16. Adjacent to the highwall was an inactive section, and Perales
observed loose rock there, as well. Tr. 12.
The Secretary’s Exhibits 2-1 and 2-2 are photographs taken from the southwest3 corner of
the lower pit bench. There are loose boulders apparent in both photos. Sec’y Exs. 2-1, 2-2.
Exhibit 2-1 shows the surface of the bench and overlooks the inactive south wall. Tr. 13-14.
Exhibit 2-2 overlooks the west wall, the active area.4 Tr. 15. The back breakage is located along
2

Emilio Perales has worked as a mine inspector for MSHA for 20 years. Tr. 8. Prior to
that he was employed in the mining industry for 16 years in shipping, production, and as a safety
manager. Tr. 9. His work experience was at the Beckmann quarry, the mine that is the subject of
this proceeding. Tr. 8-9. As a safety manager, Perales managed the safety aspects of drilling,
loading, and blasting on highwalls, and he has inspected many mines with highwalls. Tr. 10.
Perales has also completed the course of regular training required of inspectors. Tr. 8.
3

Perales referred to this corner as the southeast corner, while Evans called it the
southwest corner. Tr. 13, 37. I will refer to it as the southwest corner for consistency.
4

There was some confusion in the witnesses’ testimony as to the meaning of the terms
“active” and “inactive” and which areas of the mine were active. The inspector referred to the
area with the partial berm shown in Exhibits 2-1, D-7, and D-8 as “inactive.” Tr. 13-14, 21, 32.
He referred to the other area, where there was a loader, tire tracks, and back breakage, as
“active.” Tr. 23, 32. Evans at first referred to the area with the partial berm as “done,” “inactive,”
and “mined out.” Tr. 36, 38, 48. He then stated that that area was “part of the active mine,” and
later that it was the same area as the area with the loader, but seen from a different angle. Tr. 52(continued…)

40 FMSHRC Page 1522

the active side. Sec’y Ex. 2-2. Perales observed that material had been removed from the active
area after blasting, which would have required a loader to make repeated trips to the face. Tr. 15.
A loader is visible in Exhibit 2-2, and Perales observed someone operating it at the time of the
inspection. Sec’y Ex. 2-2; Tr. 19. Respondent’s Exhibit D-5 shows a closer view of the area in
Exhibit 2-2. There are tire tracks from a loader close to the highwall. Resp. Ex. D-5; Tr. 21, 30,
45. Perales observed the loader going back and forth to load material, which exposed the
operator to the highwall repeatedly. Tr. 23. There were no photographs introduced to show the
highwall above where the loader was working. Tr. 28. Respondent’s Exhibits D-7 and D-8 are
photographs of the inactive wall shown in Exhibit 2-1. Tr. 21, 31, 32. There is a berm at the end
of the wall, but most of the length of the wall is not bermed. Resp. Exs. D-7, D-8. At the
inspection, Perales discussed the condition with Evans, who told him the plant manager had
directed the crew to clean up the area. Tr. 24. Perales interpreted this to mean that Evans had
directed miners to remove the berms. Tr. 21, 24, 30. Perales explained that berms are used to
keep people away from an inactive highwall. Tr. 21. They are placed some distance away from
the highwall so that if any rock falls, it will fall behind the berm. Tr. 21, 22. A loader operator
working to remove the berms would be exposed to rock falls from the inactive highwall. Tr. 15.
Perales explained that a loader operator working near the highwall would be exposed to
hazardous conditions. Tr. 15, 23. He was concerned that material could fall from the highwall
and hit the cab of the loader. Tr. 24. A rock could potentially come through the windshield, and
depending on the size of the rock, it could cause serious injury. Tr. 24, 25. He noted that some
large loose rocks were visible in the photos. Tr. 25.
To terminate the violation, the operator installed berms along the inactive part of the pit
and used a rock breaker to scale the active area. Tr. 19. The Secretary’s Exhibit 2-3 shows the
highwall after it was scaled. Tr. 19.
Howard Evans, the superintendent for the primary section of the mine, was present
during the inspection and testified at hearing. He had been in that position for eight months at the
time, but it was his first inspection as a superintendent. Tr. 35. He believed there had been a
misunderstanding with the inspector regarding the berms in the inactive area. Tr. 35. Evans
recalled telling the inspector that his boss, Chance Allen, had instructed him to clean the area. Tr.
35. But the area Allen was referring to was the catch bench between the upper level and the
floor. Tr. 36; see Resp. Ex. D-8. The purpose of the catch bench is to catch material that may fall
from the upper bench to keep it from falling to the floor. Tr. 36. Allen wanted the catch bench
cleaned because that part of the mine had been mined out and was designated for reclamation.
Tr. 36. Evans testified that no berms were removed in the area. Tr. 37. He stated that miners had
4

(…continued)
53. In response to further questions, he referred to the area with the loader as both active and
inactive. Tr. 54-56. Evans then claimed he had been confused about the definition of “active,”
and had only meant that miners were not presently digging and mucking in some areas. Tr. 56. In
terms of whether mining would continue on the wall, he stated that only the south wall was
completely inactive. Tr. 56. The inspector’s testimony was more consistent, and I credit his
account. I find that the south wall was “inactive” in the sense that mining would not continue in
that direction, while the west wall was actively being mined.

40 FMSHRC Page 1523

begun construction on a berm in the inactive area prior to the inspection, but that it takes several
days to build a berm. Tr. 37. He did not see anyone working in the inactive area other than the
miners building the berm. Tr. 45. He admitted that there was loose material in the area and it
looked like the wall had not been scaled. Tr. 51-52. Regarding the active wall, Evans believed
that the back breakage observed by the inspector did not pose a hazard. Tr. 39. He said that back
breakage is common, and only poses a problem if it is deep, which this was not. Tr. 39, 47, 49.
He stated that the wall had been scaled to a 45-degree angle using a rock breaker, and he
believed this would prevent any material from falling. Tr. 40. However, he later admitted that
there were loose rocks in the Secretary’s Exhibit 2-1 showing the southwest corner and said that
that area had probably not been scaled. Tr. 51-52. He stated that as far as he could recall, the wall
further down where the loader was working was “in pretty good shape” with no loose material,
and he did not believe it posed any danger to the loader operator shown in Exhibit 2-2. Tr. 40,
41. No other work was being done along the west wall at the time. Tr. 42. Evans also testified
that miners are trained to watch the highwall as they are loading and to stay at a 45-degree angle
to the wall. Tr. 41. He noted that the loaders are 60 feet long with 26 feet from the tip of the
bucket to the front of the cab. Tr. 42. The large loaders are used in that area in order to keep the
loader operators farther from the wall. Tr. 42.
IV. ANALYSIS
A. The Violation
Perales cited the mine for a violation of 30 C.F.R. § 56.3131. That standard requires that
In places where persons work or travel in performing their
assigned tasks, loose or unconsolidated material shall be sloped to
the angle of repose or stripped back for at least 10 feet from the top
of the pit or quarry wall. Other conditions at or near the perimeter
of the pit or quarry wall which create a fall-of-material hazard to
persons shall be corrected.
30 C.F.R. § 56.3131.
The inspector testified that he observed loose material and back breakage along the lower
bench in the corner of the pit. The photographs from the day of the inspection clearly show large
loose boulders on the west wall. Sec’y Ex. 2-1, 2-2; Resp. Ex. D-1, D-4, D-5, D-9, D-10. The
photographs also show obvious cracks or back breakage along the west wall. I credit the
inspector’s testimony that the back breakage created a fall-of-material hazard. Tr. 16. While
Evans at one point testified that the west wall had been scaled to a 45-degree angle, he later
acknowledged that there were loose rocks indicating that the area had not been scaled. See Tr.
40, 51-52; Resp. Br. 6. The angle of repose is not readily apparent from the photographs. Even if
the area was indeed scaled, the scaling was not adequate. There was still loose material present
that created a hazard to miners working below.
Martin Marietta argues that there was no one working in the area because it had already
been mucked out. Resp. Br. 5. However, the witnesses’ descriptions of the mining cycle indicate

40 FMSHRC Page 1524

that the loose rocks would most likely arise during blasting. Tr. 16-17, 39. Thus, they were most
likely present when the loader approached the corner to remove material, leaving the tire tracks
observed by the inspector. Moreover, there was nothing to prevent the loader observed on the
day of the inspection from approaching the corner. The area where that loader was working was
part of the same active wall. The fall-of-material hazard was present in an area where a miner
was working.
The inspector based his violation in part on information indicating that miners had been
working to remove berms near the south wall. The testimony of Evans indicated that in fact the
mine was in the process of constructing berms in that area. Resp. Br. 5. Thus, I base my findings
on the activity of the loader and the loose rocks and back breakage on the west wall. Those
conditions created a hazard to the loader operator working below, and I find that a violation
occurred.
B. Significant and Substantial
The Secretary alleges that the violation was reasonably likely to cause injury resulting in
lost workdays or restricted duty and was S&S.
A violation is significant and substantial (S&S) “if based upon the particular facts
surrounding the violation there exists a reasonable likelihood that the hazard contributed to will
result in an injury or illness of a reasonably serious nature.” Cement Division, Nat’l Gypsum Co.,
3 FMSHRC 822, 825 (Apr. 1981). In order to uphold a citation as S&S, the Commission has
held that 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.
Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984). The Commission has held that the second
element of the Mathies test addresses the extent to which a violation contributes to a particular
hazard. Newtown Energy, Inc., 38 FMSHRC 2033, 2037 (Aug. 2016). Analysis under the second
step should thus include the identification of the hazard created by the violation and a
determination of the likelihood of the occurrence of the hazard that the cited standard is intended
to prevent. Id. at 2038. At the third step, the Secretary must prove there was a reasonable
likelihood that the hazard contributed to by the violation will cause an injury, not a reasonable
likelihood that the violation, itself, will cause injury. Musser Eng'g, Inc., 32 FMSHRC 1257,
1280–81 (Oct. 2010); see also W. Ridge Res., Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ).
Evaluation of the four factors is made assuming continued normal mining operations. U.S. Steel
Mining Co., 6 FMSHRC 1573, 1574 (July 1984).
Here, the Secretary has proven a violation of a mandatory safety standard, 30 C.F.R.
§ 56.3131. The hazard addressed by the standard is that of loose material falling from the wall
when a miner is working below. Perales testified that a vibration could cause material to come
down. He observed the loader working in the area, and there were tire tracks from a loader close
to the cited area. I find that it was reasonably likely that material would fall while the loader was
working below, satisfying the second Mathies element.

40 FMSHRC Page 1525

The third Mathies element requires proof that the hazard created was reasonably likely to
result in injury. Musser Eng'g, Inc., 32 FMSHRC at 1280–81. Respondent argues that injury was
unlikely because no one was assigned to work directly below the loose rocks. Resp. Br. 8.
Respondent further argues that even if a miner did enter the area, loader operators are required to
move at a 45-degree angle, allowing them to see any falling material, and the length of the loader
would keep the operator at least 26 feet from the wall. Resp. Br. 8-9. Even accepting that a miner
was unlikely to enter the area before the next blasting cycle, the tire tracks indicate that a loader
operator did approach the wall while the hazard was present. The inspector and Evans gave
differing opinions on whether a loader operator would be exposed to injury from a falling rock. I
found the inspector to be a credible witness and accept his testimony on this point. Based on the
proximity of the tire tracks to the wall, I find that it was reasonably likely that a rock would
strike the loader if it fell. The inspector noted that a rock could come through the window of the
loader and strike the operator. The rocks were of varying sizes, but he testified that even a small
rock could contribute to a fatal injury. I credit his explanation and find that the violation was
reasonably likely to result in a reasonably serious injury. I find that the violation was S&S and
affirm the gravity as issued.
C. Negligence
The Secretary alleges that the violation involved high negligence on the part of the
operator.
In evaluating negligence, the Commission employs a traditional negligence analysis
based on whether an operator failed to meet the requisite standard of care. Brody Mining, LLC,
37 FMSHRC 1687, 1702 (Aug. 2015). Operators are held to a high standard of care under the
Mine Act. Am. Coal Co., 38 FMSHRC 2062, 2083 (Aug. 2016); Brody, 37 FMSHRC at 1702.
The Commission considers what actions a reasonably prudent person familiar with the mining
industry, the relevant facts, and the protective purpose of the regulation would have taken under
the same circumstances. Brody, 37 FMSHRC at 1702. High negligence “suggests an aggravated
lack of care that is more than ordinary negligence.” Id. at 1703 (quoting Topper Coal Co., 20
FMSHRC 344, 350 (Apr. 1998)).
The inspector testified that it is an industry-wide practice to inspect the highwall and
scale after every shot before work can proceed. The loose rocks and breakage here were obvious
and should have been noticed and addressed before the loader was allowed to work in the area. I
affirm the high negligence designation.
V. PENALTY
It is well established that Commission administrative law judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Co., 5 FMSHRC
287, 291 (March 1983). The Act requires that in assessing civil monetary penalties, the
Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the
appropriateness of such penalty to the size of the business of the

40 FMSHRC Page 1526

operator charged, (3) whether the operator was negligent, (4) the
effect on the operator’s ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of the
person charged in attempting to achieve rapid compliance after
notification of a violation.
30 U.S.C. § 820(i).
The Secretary proposed a penalty of $1,806.00. The mine has not been cited under this
standard in the past 15 months. Sec’y Ex. 3. The parties stipulated that the violation was abated
in good faith and the proposed penalty will not affect Respondent’s ability to remain in business.
Jt. Stips. ¶¶ 9, 10. As discussed above, the violation was reasonably likely to cause an injury
resulting in lost workdays or restricted duty and involved high negligence on the part of the
operator. I find that the proposed penalty of $1,806.00 is appropriate to the violation.
VI. ORDER
Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of
$1,806.00 within 30 days of this order.5

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

5

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO
63179-0390

40 FMSHRC Page 1527

Distribution: (U.S. First Class Mail)
Christopher D. Lopez-Loftis, U.S. Department of Labor, Office of the Solicitor, 525 Griffin
Street, Suite 501, Dallas, TX 75202
Karen L. Johnston, Benjamin J. Ross, Jackson Kelly PLLC, 1099 Eighteenth Street, Suite 2150,
Denver, CO 80202

40 FMSHRC Page 1528

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH ST. SUITE 443
DENVER, CO 80202-2500
TELEPHONE: 303-844-5266 / FAX: 303-844-5268

December 12, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION, (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. CENT 2018-0243
A.C. No. 41-00009-460832

v.
CACTUS CANYON QUARRIES, INC.,
Respondent.

Mine: Fairland Plant & Qys
DECISION

Appearances:

Christopher D. Lopez-Loftis, Office of the Solicitor, U.S. Department of
Labor, Dallas, Texas, for Petitioner;
Andy Carson, Marble Falls, Texas, for Respondent.

Before:

Judge Simonton
I. INTRODUCTION

This case is before me upon the Secretary’s petition for assessment of civil penalty filed
in accordance with the provisions of the Federal Mine Safety and Health Act of 1977 (“Mine
Act”), 30 U.S.C. §801 et. seq.1 The case involves two section 104(a) citations issued to Cactus
Canyon Quarries, Inc. (“CCQ” or “Respondent”) for a total penalty of $236.00.
A hearing was held on September 13, 2018, in San Antonio, Texas. MSHA Inspector
William Bonneau testified for the Secretary. Quarry owner Andy Carson and CCQ miner Jesus
Garcia testified for the Respondent. The parties agreed to the following stipulations of fact:
1. The Cactus Canyon Quarries, Inc. Fairland Plant & Qys is a mine as defined under Section
3(h) of the Mine Act.
2. The Southern Aggregates Plant 9 is subject to the Federal Mine Safety and Health Act of
1977.

1

In this decision, the parties’ Joint Stipulations, the transcript, the Secretary’s exhibits,
and Respondent’s exhibits are abbreviated as “Jt. Stip. #,” “Tr.,” “Ex. S–#,” and “Ex. R–#,”
respectively.

40 FMSHRC Page 1529

3. The Respondent is subject to the jurisdiction of the Federal Mine Safety and Health Review
Commission and the presiding administrative law judge has the authority to hear the case and
decision.
4. At all times relevant to these proceedings, the products of the subject mine entered
commerce, or the operations or products thereof affected commerce, within the meaning and
scope of Section 4 of the Mine Act, 30 U.S.C. § 803.
5. Copies of the citation in contest are authentic and a copy was served on the Respondent by an
Authorized Representative of the Secretary employed by the Mine Safety and Health
Administration.
6. The individual whose signature appears in Block 22 of the contested citation at issue in this
proceeding is an Authorized Representative of the United States of America’s Secretary of
Labor, assigned to MSHA, and was acting in his official capacity when issuing the citation at
issue in this proceeding.
7. The Respondent timely contested the violation.
8. The Respondent abated the citation timely and in good faith.
See Jt. Stip; Ex. S–7. In addition, the parties stipulated at hearing that CCQ had not been cited for
broken brake lights or headlights in the past. Tr. 139-40. Based upon the parties’ stipulations and
my review of the witness testimony, the entire record, and the parties’ post-hearing briefs, I make
the following findings.
II. LEGAL PRINCIPLES
A. Establishing a Violation
The Commission has long held that “[i]n an enforcement action before the Commission,
the Secretary bears the burden of proving any alleged violation.” Jim Walter Res., Inc., 9
FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (Aug. 1992). The
Commission has described the Secretary’s burden as:
The burden of showing something by a “preponderance of the evidence,” the most
common standard in the civil law, simply requires the trier of fact “to believe that
the existence of a fact is more probable than its nonexistence.”
RAG Cumberland Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas
Co., 11 FMSHRC 2148, 2152 (Nov. 1989).
The Secretary may establish a violation by inference in certain situations. Garden Creek
Pocahontas Co., 11 FMSRC at 2153. Any such inference, however, must be inherently
reasonable, and there must be a rational connection between the evidentiary facts and the
ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138 (May 1984).

40 FMSHRC Page 1530

If the Secretary has established facts supporting the citation, the burden shifts to the
Respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321,
327 (March 2001) (ALJ).
B. 30 C.F.R. § 56.14100(b)
30 C.F.R. § 56.14100(b) provides “[d]efects on any equipment, machinery, and tools that
affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.”
The language of section 56.14100(b) is “simple and brief in order to be broadly adaptable to
myriad circumstances.” Palmer Coking Coal Co., 22 FMSHRC 887, 891 (July 2000) (ALJ). A
violation of the standard requires a finding that (1) there was a defect in the equipment, (2) the
cited defect affected safety and (3) the defect was not corrected in a timely manner to prevent the
creation of a hazard. Meyer Aggregate LLC, 38 FMSHRC 2596, 2605 (Oct. 2016) (ALJ).
Whether a defect is repaired in a timely manner depends on “when the defect occurred and when
the operator knew or should have known of its existence.” Northern Ill. Serv. Co., 37 FMSHRC
1514, 1538 (July 2015) (citing Lopke Quarries, Inc., 23 FMSHRC 705, 715 (July 2001)).
C. Fair Notice
The Secretary must provide fair notice of the requirements of broadly written safety
standards. See Sunbelt Rentals Inc., 38 FMSHRC 1619, 1626 (July 2016); see also Alabama ByProducts Corp., 4 FMSHRC 2128, 2130 (Dec. 1992); Kerr-McGee Corp., 3 FMSHRC 2496,
2497 (Nov. 1981). The Commission has consistently applied the objective reasonably prudent
person standard to resolve issues of notice. Id. at 2125. That test examines whether a “reasonably
prudent person familiar with the mining industry and the protective purposes of the standard
would have recognized the specific prohibition or requirement of the standard.” Ideal Cement
Co., 12 FMSHRC 2409, 2416 (Nov. 1990). The Commission looks to a wide array of factors in
making that inquiry, including the text of the regulation, its placement in the overall regulatory
scheme, its regulatory history and purpose, the consistency of the agency’s enforcement, whether
MSHA has published notices informing the regulatory community of its interpretation, and
whether the operator would have been aware of the requirement of the standard because of past
case precedent. See Sunbelt Rentals, 38 FMSHRC at 1627.
D. Gravity
The gravity penalty criterion under § 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is often
viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541,
1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (Mar. 1983), aff’d, 736
F.2d 1147) (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987).
An analysis of gravity focuses on the likelihood of injury, the severity of an injury if it occurs,
and the number of miners potentially affected, and must be considered assuming continued
normal mining operations without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC
1125, 1130 (Aug. 1985).

40 FMSHRC Page 1531

E. Negligence
Under the Mine Act, operators are held to a high standard of care, and “must be on the
alert for conditions and practices in the mine that affect the safety or health of miners and to take
steps necessary to correct or prevent hazardous conditions or practices.” 30 C.F.R. § 100.3(d).
The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest
degree of care, high negligence as actual or constructive knowledge of the violative condition
without mitigating circumstances; moderate negligence as actual or constructive knowledge of
the violative condition with mitigating circumstances; and low negligence as actual or
constructive knowledge of the violative condition with considerable mitigating circumstances. 30
C.F.R. § 100.3: Table X.
The Commission and its judges are not bound to apply the part 100 regulations that
govern MSHA’s determinations addressing the proposal of civil penalties. Newtown Energy,
Inc., 38 FMSHRC 2033, 2048 (Aug. 2016), (citing Brody Mining, LLC, 37 FMSHRC 1687,
1701–03 (Aug. 2015)). The Commission instead employs a traditional negligence analysis,
assessing negligence based on whether an operator failed to meet the requisite standard of care.
Brody, 37 FMSHRC at 1702. In doing so the Commission considers what actions a reasonably
prudent person familiar with the mining industry, the relevant facts, and the protective purpose of
the regulation, would have taken under the same circumstances. Id. Commission judges are thus
not limited to an evaluation of mitigating circumstances but may instead consider the totality of
the circumstances holistically.” Id.; see also Mach Mining, 809 F.3d 1259, 1264 (D.C. Cir.
2016).
F. Penalty
It is well established that Commission Administrative Law Judges have the authority to
assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5
FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties,
the Commission ALJ shall consider the six statutory penalty criteria:
(1) the operator’s history of previous violations, (2) the appropriateness of such
penalty to the size of the business of the operator charged, (3) whether the
operator was negligent, (4) the effect on the operator’s ability to continue in
business, (5) the gravity of the violation, and (6) the demonstrated good faith of
the person charged in attempting to achieve rapid compliance after notification of
a violation.
30 U.S.C. § 820(i).
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Fairland Plant & Qys (“Quarry”) is an aggregate mine located in Marble Falls,
Texas, owned and operated by Cactus Canyon Quarries. On January 30, 2018, MSHA Inspector

40 FMSHRC Page 1532

William Bonneau inspected the Quarry and issued the two citations challenged here.2 Both
citations allege violations of 30 C.F.R. § 56.14100(b) for non-functioning brake lights on a
service truck and for broken or missing headlights and brake lights on four haul trucks,
respectively.3
CCQ argues that both citations should be vacated. CCQ contends that the language of §
56.14100(b) does not explicitly require vehicles to have functional headlights and brake lights at
all times. Respondent’s Post-Hearing Brief (“Resp. Br.”) at 1-2. Rather, liability under §
56.14100(b) depends on the conditions at the mine in reasonably determining what constitutes a
defect affecting safety. Id. CCQ argues that the Quarry’s low traffic flow and restriction of
operations to daytime and optimal weather ensure that the broken and missing lights on the
various trucks do not affect safety. Resp. Br. at 2-3; Tr. 20-21, 119, 121. Finally, CCQ argues
that it was not given fair notice by MSHA that broken headlights or brake lights on equipment
violated § 56.14100(b). Respondent’s Reply Brief (“Resp. Rep.”) at 5.
A. The Violations
Citation No. 9359738
On January 30, 2018, Inspector Bonneau arrived at the Quarry to conduct a routine
inspection. Tr. 25. In accordance with company policy, CCQ’s sales manager shut down all
Quarry operations upon Bonneau’s arrival so that the miners could accompany the inspection.
Tr. 25, 28, 54. Bonneau began his inspection with a white F-150 service pickup truck located
near the shop. Tr. 30-31, 35. He asked the accompanying miners to test the truck and discovered
that the brake lights failed to function. Tr. 30-31, 35. The miners told Bonneau that the lights
worked previously but that they were uncertain how long they had not worked. Tr. 31-32.
Bonneau issued Citation No. 9359738, which alleged:
A defect affecting safety was present and had not been corrected in a timely
manner. The brake lights on the white shop/service truck did not function when
tested. The truck is used throughout the mine site as needed to service the plants
and mobile equipment. This condition exposes the driver to serious injuries in the
event a rear-end collision occurs while operating the truck throughout the mine
site. The lights are a safety feature which should be maintained in functional
condition.

2

William Bonneau has worked as an MSHA inspector for three years. Tr. 22. He
completed all required inspector training at the Mine Academy in Beckley, West Virginia, and
conducts an average of 75 inspections annually. Tr. 23. Prior to MSHA, Bonneau served as
safety engineer at Sherwin Alumina in Gregory, Texas for eight years. Tr. 23.
3

Section 56.14100(b) states “[d]efects on any equipment, machinery, and tools that affect
safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” 30
C.F.R. § 56.14100(b).

40 FMSHRC Page 1533

Ex. S–1. Bonneau designated the citation non-S&S, unlikely to result in lost workdays or
restricted duty, and the result of Respondent’s moderate negligence. Id. Respondent terminated
the violation by replacing a fuse. Ex. S–1; Tr. 37. The Secretary assessed a penalty of $118.00.
I affirm the violation. There is no dispute that the brake lights on the service truck did not
activate when Bonneau and the miners tested them. Ex. S–2; Tr. 31, 125. The defective brake
lights also affected safety at the Quarry. Inspector Bonneau testified that brake lights function as
a signaling device from the miner driving the truck to other nearby vehicles or miners. 4 Tr. 3334. The broken brake lights clearly affect the safety of the truck because vehicles travelling
behind the truck will be unable to discern when it is slowing down or coming to a stop and bears
the risk of a rear-end collision.
CCQ was aware that the brake light did not work for an extensive period of time and did
not replace it. Although miners on site were unsure how long the lights were inoperable, Garcia
testified that he was aware the brake lights had been out for quite some time, possibly years. Tr.
128-29. When asked why they did not repair the brake lights, both Carson and Garcia testified
that CCQ did not pay attention to the matter because they believed functional brake lights to be
unnecessary during operating hours. Tr. 128-29. I find that CCQ operated the truck without
working brake lights and therefore created a hazard to other persons on the mine site.
CCQ contends that the Secretary cannot prove the defective brake lights created a safety
hazard because Inspector Bonneau did not see the truck in operation in conditions where brake
lights would be necessary. Resp. Br. at 2-3. It argues that the Quarry is small, does not have a
high volume of traffic, and does not operate at night or in bad weather. Resp. Br. at 2. CCQ
therefore maintains that the Secretary cannot prove that the inoperable brake lights affected
safety at the mine site.
As an initial matter, CCQ’s arguments as to the conditions in which the mine operates
relate to the gravity determination of likelihood rather than to the fact of violation. See Walker
Stone Co., 20 FMSHRC 1218, 1225-26 (Oct. 1998) (ALJ). Defective brake lights affect safety at
any time in which vehicles are moving about the mine site. Even attentive drivers operating in
clear conditions with little traffic may encounter another vehicle and fail to discern whether it
plans to slow down or stop without working brake lights.

4

CCQ contends that Inspector Bonneau was not an expert witness and therefore did not
have the qualifications necessary to testify as to what constituted a defect and what created a
hazard to persons under the standard. Resp. Br. at 2-3. Respondent has made this argument
before to no avail. See Cactus Canyon Quarries of Texas, 23 FMSHRC 280, 286 (Mar. 2001)
(ALJ). In denying CCQ’s motion to exclude parts of an inspector’s testimony as improper expert
testimony, the ALJ in that case held that the conclusions of MSHA Inspectors based on personal
observations of what they believe to be violations of mandatory safety standards are not opinions
based on scientific, technical, or other specialized knowledge that require an expert. Id. The same
is true here. Bonneau testified to his personal observation of the truck’s broken brake lights, his
conversations with miners at the site regarding its operations, and why he believed that the
inoperable brake lights violated the standard.

40 FMSHRC Page 1534

It follows that Inspector Bonneau need not have personally observed the truck in
operation to conclude that the defective brake lights created a safety hazard.5 Inspectors may
make inferences regarding violations so long as a rational connection exists between the
evidentiary facts and the ultimate fact inferred. Mid-Continent Res., 6 FMSHRC 1132, 1138
(May 1984). Bonneau determined that the mine was in operation when he arrived to conduct his
inspection and gathered through his discussions with miners at the site that multiple vehicles,
including the service truck, operated on the site at once. Tr. 60-61. He was not informed that the
truck was tagged out or never used, and thus logically concluded that it operated without
functional brake lights. The court credits his inference from these facts that the truck’s
inoperable brake lights affected safety.
The Secretary has proven the violation.
Citation No. 9359739
Inspector Bonneau continued his inspection the following day, this time accompanied by
Quarry owner Andy Carson. Tr. 40-41. Bonneau discovered that the headlights and brake lights
on four haul trucks were either out or missing. Ex. S–4, S–6; Tr. 40. The miners again claimed
that the lights had worked on previous occasions but could not determine how long ago. Tr. 41.
Carson believed that the lights may have broken soon after he purchased the trucks. Tr. 143.
Bonneau issued one citation for the missing and broken lights on all four trucks. Tr. 45-46. The
citation alleged:
Defects on any equipment, machinery, and tools that affect safety shall be
corrected in a timely manner to prevent the creation of a hazard to persons. The
front headlights and brake lights on the dump trucks (#3; 303; 24 and 4) did not
function when tested. The trucks are used throughout the mine site to haul
material from the stock pile to the crushing plants and to transport material from
the railroad haulage cars. This condition exposes the driver to serious injuries in
the event a collision occurs while operating the truck throughout the mine site.
The headlights and brake lights are a safety feature which should be maintained in
functional condition.
Ex. S–3. Bonneau designated the citation non-S&S, unlikely to result in lost workdays or
restricted duty, and the result of Respondent’s moderate negligence. Id. CCQ terminated the
citation by replacing the fuses and bulbs on each of the trucks. Tr. 48-49. The Secretary assessed
a penalty of $118.00.
I affirm the fact of violation for the same reasons discussed above. The parties do not
dispute that headlights and brake lights on the haul trucks were either not functional or missing
completely. Ex. S–6; Tr. 40, 115, 125-27, 143-45. The Secretary has offered a number of
pictures of each truck that support the citation. Ex. S–4; S–6; Tr. 44. Exhibits S–4 and S–6
5

The court again notes that Bonneau was unable to observe the Quarry at work because
Respondent shut down all operations upon Inspector Bonneau’s arrival for the inspection. Tr. 25,
28, 54.

40 FMSHRC Page 1535

clearly show haul trucks missing brake lights. Inspector Bonneau also identified three trucks in
Exhibit S–6 that had inoperable headlights. Tr. 44-45. Three or four haul trucks travel through
Plant 1 and about five proceed through Plant 2 each day. Tr. 107. The two plants run
simultaneously for approximately one third of the Quarry’s operating time. Tr. 117.
As discussed supra, broken and missing brake lights are a defect that affects safety at
mine sites because any vehicle traveling behind a haul truck would not realize that it needed to
stop or slow down. I find that defective headlights pose a similar safety hazard because
oncoming vehicles may not be able to see trucks approaching or rounding a corner without
operable headlights. Inspector Bonneau testified that the presence of fog on the second day of the
inspection increased the safety hazard because miners would be unable to see vehicles coming
around corners and up narrow roads between warehouses. Tr. 46-47, 147. Although CCQ
disputes that it operates in inclement weather, weather can change quickly and impede operators’
visibility of oncoming traffic. See Walker Stone Co., 20 FMSHRC at 1226. In those situations,
defective headlights affect safety because other miners may have trouble seeing a haul truck
approach.
Again, CCQ was aware of the condition for an extended period of time and did not
address the defects. Garcia and Carson both testified that CCQ was aware that its haul trucks did
not have working headlights and brake lights, and that some of the trucks never had lights. Tr.
126-27; 143-45.
The Secretary has proven a violation.
B. Fair Notice
Respondent contends that it did not receive fair notice that broken brake lights or
headlights constituted defects affecting safety in violation of the standard because previous
MSHA inspectors have never cited the condition at the Quarry and because it knows of no
written interpretation that § 56.14100(b) requires vehicles to repair defective headlights and
brake lights. Resp. Rep. at 5; Tr. 139-140.
That CCQ has not been cited in the past does not excuse it from understanding that
defective headlights and brake lights affect safety and must be repaired in a timely manner.
“MSHA cannot be estopped from enforcing its regulations simply because it did not previously
cite the mine operator.” Oil-Dri Production Co., 40 FMSHRC 876, 941 (June 2018) (ALJ)
(citations omitted) (rejecting Respondent’s argument that it lacked fair notice because at least 14
inspections over seven years failed to express concerns regarding the violative condition).
CCQ relies upon the U.S. District Court’s memorandum opinion in Bevins v. Apogee
Coal Co., No. 2:13-cv-24264, 2014 WL 7236415 (S.D.W.Va. Dec. 18, 2014), aff’d, 635
Fed.Appx. 117 (Mem) (4th Cir. 2016), to support its contention that §56.14100(b) is not a strict
liability standard and lacks the specificity to give fair notice of the alleged prohibited conduct.
Resp. Rep. at 5. Its reliance on that case is misplaced. In Bevins, the Court held that §§
56.14100(b), (c), and (d) lacked the specificity to qualify for additional damages under the
employer immunity exception of § 23-4-2(d)(2) of West Virginia’s workers’ compensation

40 FMSHRC Page 1536

provision. Bevins, 2014 WL at *4-5. Whether the standard is sufficiently specific to qualify for
damages under West Virginia law is irrelevant to whether an operator received fair notice under
the strict liability framework of the Mine Act.
Actual notice is not required. Under Commission precedent, the due process requirements
for fair notice are satisfied so long as the regulation is sufficiently specific that a reasonably
prudent person, familiar with the conditions that the regulation is meant to address and the
objective the regulation is meant to achieve would have fair warning of what the regulation
requires. Oil-Dri Production Co., 40 FMSHRC at 941; see also Sunbelt Rentals Inc., 38
FMSHRC 1619, 1626 (July 2016); Alabama By-Products Corp., 4 FMSHRC 2128, 2130 (Dec.
1992); Kerr-McGee Corp., 3 FMSHRC 2496, 2497 (Nov. 1981); Palmer Coking Coal Co., 22
FMSHRC 887, 891-92 (July 2000) (ALJ).
I find that § 56.14100 is sufficiently specific that a reasonably prudent person familiar
with the conditions the standard intends to address would have recognized that broken headlights
and brake lights on vehicles in use are a violation of the standard. Headlights and brake lights are
a near universal safety feature on vehicles and serve to prevent the obvious safety hazard created
by front and rear-end collisions. Bonneau testified that CCQ’s miners agreed with his contention
that lights are a safety feature that would reduce the risk of an accident on the mine site. Tr. 91.
A reasonably prudent person familiar with the standard would assume that these lights should
work to ensure safe vehicle travel around the mine and that inoperable lights are defects that
affect such travel. Inoperable head and brake lights thus must be repaired in a timely matter to
prevent accidents.
Furthermore, the Secretary’s interpretation of the standard is not novel or unreasonable.
Inspectors have often cited operators for failing to timely repair non-functional brake lights
under § 56.14100(b) and Commission Judges have consistently affirmed the Secretary’s
interpretation that broken brake lights are a defect affecting safety that must be timely repaired to
prevent a hazard. See e.g., Boart Longyear Co., 34 FMSHRC 2715, 2718-19 (Oct. 2012) (ALJ);
Lehigh Southwest Cement Co., 33 FMSHRC 340, 355 (Feb. 2011) (ALJ); Palmer Coking Coal
Co., 22 FMSHRC 887, 892 (July 2000) (ALJ); Barrett Paving Materials, Inc., 15 FMSHRC
1999, 2007-08 (Sept. 1993) (ALJ). The Commission has also consistently affirmed the
Secretary’s interpretation that broken headlights are a defect affecting safety and must be timely
repaired under the standard. Apex Quarry, LLC, 36 FMSHRC 211, 220-21 (Jan. 2014) (ALJ);
Florida Rock Industries, Inc., 34 FMSHRC 745, 761-62 (Mar. 2012) (ALJ); Freeman Rock, Inc.,
28 FMSHRC 354 (May 2006) (ALJ); Walker Stone Co., 20 FMSHRC 1225, 1226 (Oct. 1998)
(ALJ); Bob Bak Construction, 19 FMSHRC 582, 604-05 (Mar. 1997) (ALJ).
I find that adequate notice was provided to CCQ as to the requirements of the standard.
C. Gravity
Inspector Bonneau designated both citations as non-S&S and unlikely to result in lost
workdays or restricted duty. The Quarry is small and has minimal traffic, only operates during
the daytime and in clear weather, and enforces traffic guidelines, speed limits, and stop signs. Tr.
34, 118-19. I find that the violation was unlikely to result in a collision on the Quarry site. In the

40 FMSHRC Page 1537

event of a collision between vehicles, Bonneau believed that either driver could sustain whiplash,
broken bones, strains, or sprains. Tr. 70-71. I affirm the Secretary’s designation on both citations.
D. Negligence
The Secretary designated both violations to be the result of CCQ’s moderate negligence
because the operator was aware that the lights on all of the vehicles were defective. Tr. 128-29.
However, CCQ has never been cited for the condition in the past despite the conditions existing
for quite some time, and the conditions of the mine rendered any actual accident quite unlikely.
Tr. 139-40. Less than 20 people worked at the Quarry at any given time and no traffic-related
injuries occurred on the site in at least 15 years. Tr. 119. Speed limits at the Quarry topped at 10
miles per hour and the trucks only traveled short distances at very slow paces. Tr. 119. The
Quarry does not generally operate at night or in adverse conditions, lessening the impact of
missing or broken headlights or brake lights during operations. Tr. 119. While a reasonably
prudent miner would have repaired the brake lights, under the circumstances the brake lights did
not pose a serious safety concern to this particular mine site. I reduce CCQ’s negligence to low
for both citations.
E. Penalty
The Secretary proposed a penalty of $118.00 for each citation. CCQ’s history of previous
violations is low and it had not been cited for this violation prior to Bonneau’s inspection. Tr.
139-40. The violations were unlikely to result in lost workdays or restricted duty, and were the
result of CCQ’s low negligence given the operating conditions at the Quarry. Respondent acted
quickly and in good faith to abate the citations. Jt. Stip. 8. Accordingly, I assess a penalty of
$100.00 for each citation.
IV. ORDER
The Respondent, Cactus Canyon Quarries, Inc., is hereby ORDERED to pay the
Secretary of Labor the total sum of $200.00 within 30 days of this order.6

/s/ David P. Simonton
David P. Simonton
Administrative Law Judge

6

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION,
U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO
63179-0390.

40 FMSHRC Page 1538

Distribution: (U.S. First Class Mail)
Christopher D. Lopez-Loftis, Office of the Solicitor, U.S. Department of Labor, 525 Griffin
Street, Room 501, Dallas, Texas 75202
Andy Carson, 7231 CR 120, Marble Falls, Texas 78654

40 FMSHRC Page 1539

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
721 19TH STREET, SUITE 443
DENVER, CO 80202-2536
303-844-3577 FAX 303-844-5268

December 12, 2018
INDUSTRIAL PROCESS EQUIPMENT
CONSTRUCTORS,
Contestant

CONTEST PROCEEDING
Docket No. WEST 2018-0557-RM
Order No. 9346744; 07/09/2019

v.
Portland Plant and Quarry
Mine ID 05-00037 E938

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

ORDER GRANTING THE SECRETARY’S MOTION TO DISMISS
ORDER OF DISMISSAL
Before: Judge Manning
This case is before me upon a notice of contest filed by Industrial Process Equipment
Constructors (“IPEC”) pursuant to section 107(e)(1) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seq. (the “Act”). For reasons that follow, I find that I do not have
jurisdiction over this case. Consequently, this case is DISMISSED.
On July 9, 2018, MSHA issued Imminent Danger Order No. 9346744 to IPEC for an
alleged violation of section 107(a) of the Act. On September 21, 2018, IPEC filed its notice of
contest. The Secretary filed a Motion to Dismiss this case arguing that IPEC failed to timely
contest the 107(a) withdrawal order. IPEC filed an opposition to the motion arguing that
dismissal was inappropriate due to the confusing nature of the contest procedure for 107(a)
orders and its lack of counsel during the relevant contest period. I was assigned the case on
October 31, 2018. Following a review of the Secretary’s motion and the Contestant’s response, I
ordered the parties to brief whether I have jurisdiction over the imminent danger order. On
December 6 the parties filed their respective briefs.
The Secretary argues that the court does not have jurisdiction over the imminent danger
order because IPEC failed to timely contest the order. Sec. Br. 1-2. Congress granted the
Commission and its judges jurisdiction to hear contests of enforcement actions brought by the
Mine Safety and Health Administration (“MSHA”) only when properly presented. Id. 3. The
clear language of the Act mandates that 107(a) orders be contested within 30 days. Id. 2. The
Commission, relying on the language of the Act, has stated that operators who wish to contest
107(a) orders must notify the Secretary within 30 days. Id. 3 (citing ACI Tygart Valley, 38
FMSHRC 939 (May 2016)). Id. 3. The Secretary asserts that, because IPEC did not file its
contest within 30 days, this court is without jurisdiction to consider the merits of the order. Id.
The Secretary maintains that under IPEC’s interpretation, imminent danger orders would never

40 FMSHRC Page 1540

become final and the 30 day contest period would be rendered irrelevant “because the order
always could be challenged.” Sec’y Br. 3 n. 3.
IPEC argues that the Act grants Commission administrative law judges jurisdiction to
hear contests of citations and orders brought before the Commission. IPEC Br. 2-3. Section
105(a) of the Act specifically removes jurisdiction over, and makes final, citations and orders
issued pursuant to section 104 when those citations and orders are not timely contested in a civil
penalty case. IPEC Br. 3. However, section 107 includes no such language. Id. 4. As a result,
IPEC argues that because no language exists to revoke jurisdiction over orders issued pursuant to
section 107, this court has authority to hear this case. Id.
I find that I do not have jurisdiction over this matter because the imminent danger order
became a final order of the Commission before the notice of contest was filed. Section 107(e)(1)
of the Act states that an operator who is notified of the issuance of a 107(a) order “may apply to
the Commission within 30 days of such notification for reinstatement, modification or vacation
of such order.” 30 U.S.C. § 817(e)(1). Section 105(d) of the Act provides that an operator may
contest a citation or order issued under section 104 of the Act within 30 days of receipt thereof.
Only section 105(a) provides that if an operator fails to contest a citation or a proposed penalty
within 30 days, the “citation and the proposed assessment of penalty shall be deemed a final
order of the Commission and not subject to review by any court or agency.” 30 U.S.C. 815(a).
Nevertheless, the Commission has stated that “treating all penalties and orders as ‘final’ is the
better practice and is more consistent with the structure and language of the Act.” Sims Crane,
Inc., 39 FMSHRC 1367, 1371 n. 2 (July 2017).1 In Sims Crane, upon motion of the operator, the
Commission reopened a section 107(a) order, which it described as “final” throughout its
decision, after the operator failed to contest the order within the 30 day period prescribed in
section 107. Consequently, I find that upon expiration of the 30 day contest period, an imminent

1

The entire footnote in Sims Crane states:

We have elected to proceed pursuant to Rule 60(b) in this case because the
Commission has, in previous cases, considered imminent danger orders as though
they are “final.” See, e.g., ACI Tygart Valley, 38 FMSHRC 939 (May 2016).
However, it is not certain that the order in this case was “final” in the fatal, legal
sense applied to penalties issued pursuant to section [105(a)]. Unlike that section,
section 107 does not contain a clause explicitly rendering an uncontested order a
“final order.” We believe that treating all penalties and orders as “final” is the
better practice and is more consistent with the structure and language of the Act.
But the fact that even the Secretary acted as through the imminent danger order
remained a viable issue in the case, up until the latter stages of pretrial
preparation, certainly renders this case “extraordinary.”

40 FMSHRC Page 1541

danger order becomes a final order of the Commission. See also, ACI Tygart Valley, 38
FMSHRC 939.2
Order No. 9346744 was issued by MSHA on July 9, 2018, was not contested within 30
days and became final on or about August 8, 2018, before IPEC filed its Notice of Contest on
September 21, 2018. As a consequence, I find that I do not have jurisdiction over the case
because the subject imminent danger order became a final order of the Commission before the
notice of contest was filed.3
It is important to emphasize that IPEC is not without a potential remedy. The
Commission has held that, in appropriate circumstances, it has jurisdiction to reopen a contest of
an imminent danger order that has become a final order of the Commission. ACI Tygart Valley,
38 FMSHRC 939. In that case, the Commission held that it will be guided by Rule 60(b) of the
Federal Rules of Civil Procedure when faced with a motion to reopen the contest of an imminent
danger order. A party may be entitled to relief from a final order of the Commission on the basis
of mistake, inadvertence, or excusable neglect, for example.
The Secretary’s Motion to Dismiss is GRANTED and this case is DISMISSED.

/s/ Richard W. Manning
Richard W. Manning
Administrative Law Judge

2

When an operator is issued a citation or order under section 104 of the Act, it need not
contest the citation or order by filing a notice of contest under section 105(d) but can wait to
contest the matter when a civil penalty is proposed by the Secretary. If an operator files a notice
of contest of a citation or order issued under section 104(a) out of time and the case is dismissed
on that basis, it does not lose its right to contest the citation or order in the civil penalty case.
Because penalties are not assessed for imminent danger orders, such orders can only be
challenged by filing a notice of contest under section 107(e).
3

Several Commission judges have taken a different approach to late filed notices of
contest by resolving the issue on the merits without considering the jurisdictional issue. For
example, in Kinder Morgan Operating L.P., 24 FMSHRC 1055 (Dec. 2002), a Commission
judge dismissed ten contest proceedings involving citations issued under section 104 of the Act
because they were filed more than 30 days after the citations were issued, citing a long line of
cases holding that “the late filing of notices of contest of citations is not permissible under the
Mine Act[.]” 24 FMSHRC at 1056. In another case, a Commission judge excused the late-filing
of 21 notices of contest of section 104(a) citations without objection by the Secretary. Rockhouse
Energy Mining Co., 30 FMSHRC 988, 989-90 (Oct. 2008).

40 FMSHRC Page 1542

Distribution:
Joshua Schultz, Esq., Law Office of Adele Abrams, P.C., 600 17th St., Suite 2800 South, Denver,
CO 80202
Timothy Williams, Esq., Office of the Solicitor, 1244 Speer Blvd., Suite 515, Denver, CO 802043516

40 FMSHRC Page 1543

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGE
1331 PENNSYLVANIA AVE, N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9950 FAX: 202-934-9949

December 14, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner,

CIVIL PENALTY PROCEEDING
Docket No. KENT 2013-0211
A.C. No. 15-17741-305075

v.
KENAMERICAN RESOURCES, INC.,
Respondent.

Mine: Paradise #9

DECISION AND ORDER
Appearances:

LaTasha T. Thomas, Esq., U.S. Department of Labor, Office of the
Solicitor, Nashville, TN, for the Petitioner;
Jason W. Hardin, Esq., Fabian VanCott, Salt Lake City, UT, for the
Respondent.

Before:

Judge L. Zane Gill

This case resulted from a Petition for the Assessment of Civil Penalty filed by the
Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”),
against KenAmerican Resources, Inc. (“KRI”), pursuant to sections 105 and 110 of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815, 820 (the “Act” or “Mine Act”). The
court made a record of the parties’ testamentary and documentary evidence at a hearing held in
Henderson, Kentucky. The parties filed post-hearing briefs.1
The Secretary alleges that a prohibited advance notice of inspection occurred when
someone from inside the mine asked over the mine phone/PA system whether there was
“company outside,” and the mine dispatcher answered by saying either “Yeah, I think there is,”
(the Inspector’s version) or “I don’t know” (the dispatcher’s version). The Secretary alleges that
the dispatcher’s answer violated section 103(a) of the Mine Act and proposes a penalty of
$18,742.00.

1

The Court had granted Respondent’s Motion for Summary Decision. 37 FMSHRC 1809
(Aug. 2015) (ALJ). That decision was appealed to the Commission, which remanded it with
instructions to hold a hearing to develop a record to reveal the context of the statements the
Secretary claims violated the prohibition of giving advance notice of an MSHA inspection, 30
U.S.C. § 813(a). 38 FMSHRC 1943, 1953 (Aug. 2016).

40 FMSHRC Page 1544

For the reasons developed below, I vacate Citation No. 8502992. The Secretary failed to
prove by a preponderance of the evidence that the contested communication constituted an
actionable “advance notice of an inspection.”
I. PRINCIPLES OF LAW
A.

Burden of Proof and Credibility

In order to establish a violation of a safety standard or provision of the Act, the Secretary
must prove “by a preponderance of the credible evidence” that a violation occurred. Keystone
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), citing Garden Creek Pocahontas Co.,
11 FMSHRC 2148, 2152 (Nov. 1989). The Secretary may establish a violation by inference in
certain situations, but only if the inference is “inherently reasonable” and there is “a rational
connection between the evidentiary facts and the ultimate fact inferred.” Garden Creek
Pocahontas Co., 11 FMSHRC at 2152-53, citing Mid-Continent Res., Inc., 6 FMSHRC 1132,
1138 (May 1984); see also Eagle Energy, Inc., 23 FMSHRC 1107, 1118 (Oct. 2001).
The weight of evidence is a measure of the believability or persuasiveness of evidence.
To satisfy the burden of proof—preponderance of the evidence—the Secretary must convince me
that the evidence in support of his case outweighs the evidence offered by the Respondent.
To determine whether the Secretary met this burden, I am required to make credibility
determinations, one of the most important and difficult responsibilities an ALJ must complete.
See N. Idaho Drilling, Inc., 35 FMSHRC 2472, 2473-74 (Aug. 2013) (ALJ) (explaining that
credibility determinations are part of the process of determining whether the Secretary has met
his burden of establishing a violation by a preponderance of the evidence, and the primary issue
is determining whether witness testimony is worthy of trust and belief in the context of the
record). Credibility can be defined as “the quality that makes something (as a witness or some
evidence) worthy of belief.” Credibility, Black’s Law Dictionary 448 (10th ed. 2014). According
to Secretary of Labor v. Rag Cumberland Resources Corporation, 22 FMSHRC 1066, 1071
(Sept. 2000), consistent with the “preponderance of the evidence” standard, the Secretary must
“persuade the judge that it [is] more likely than not” that the key factual predicate needed to
support a violation occurred.
In this case, the key elements are: (1) what the dispatcher understood and said; (2) what
the words heard and spoken meant in the context in which they were communicated; and, (3)
whether the words conveyed advance notice of an MSHA inspection. I am convinced by the
weight of the evidence that the Secretary failed to prove an essential element of the prima facie
case, i.e., whether the words spoken by the dispatcher conveyed advance notice of an MSHA
inspection.
II. SUMMARY OF EVIDENCE AND FINDINGS OF FACT
Inspector Doyle Sparks issued Citation No. 8502992 to KRI on April 20, 2012, alleging
that miners had violated section 103(a) of the Mine Act. The citation alleges, “[d]uring a Hazard

40 FMSHRC Page 1545

Complaint inspection [. . .] mine personnel provided advance notice to miners underground that
MSHA inspectors were on mine property.” (Ex. S–1) (emphasis added)
The day before, April 19, 2012, someone lodged a section 103(g) hazard complaint about
KRI’s Paradise #9 mine. (Tr.20:25-21:7; 41:7-42:11; 52:25-53:13) In response, Inspector Sparks
and five2 other MSHA inspectors traveled to the mine on April 20, 2012, to investigate.
(Tr.20:25-21:7; 64:9-65:1; 65:20-25; Ex. S–2) They arrived at 5:10 p.m., approximately two
hours after the evening shift had begun.3 (Tr.50:7-14; 65:2-13; 76:18-23; 86:7-18; Ex. S–2) They
first met with Charles Kapp, mine foreman, to inform him of the hazard complaint and the
resulting inspection. (Tr.66:1-67:9; 106:9-23; 111:5-15) Then, four of the six inspectors,
including Sparks and Inspector Tim Gardner, went to the mine’s new portal; the other two went
to the dispatch shack at the old portal. (Tr.22:6-10; 160:5-14)
Inspector Sparks considered the Paradise #9 mine to be large in scale. (Tr.96:7) There
were four to five miles of belt lines in the mine. (Tr.95:1-9; 145:14-24) According to Sparks, this
hazard complaint inspection could have involved many possible inspection areas. (Tr.95:2596:9)
The size of the mine also accounted for the fact that MSHA or state mine inspectors were
present at the mine site nearly every day. (Tr.98:8-23; 142:24-144:9) Using VPID data, there
were 735 inspection days during the 15-month period from January 21, 2011, through April 20,
2012, meaning that there were one or more MSHA inspectors at the mine frequently enough to
total 735 inspection days during that 15-month (455-day) period. (Tr.99:13-101:14) There was
an E01 inspection going on nearly every work day, usually involving multiple MSHA inspectors.
(Tr.102:1-24; 142:24-143:8)
Mine personnel were aware that inspectors were on the property essentially all the time
because the inspectors would typically show up before shift changes and be seen on the site and
heard on the phones. (Tr.143:9-144:9)
Witnesses discussed various scenarios where MSHA could be on site for reasons other
than to conduct a covered inspection. Giving notice of MSHA’s presence under such
circumstances would not violate the regulation. (Tr.63:3-64:8) For example, MSHA could be on
site to interview people as part of an investigation (Tr.63:9-11), to take photos and gather
information as part of an investigation (Tr.63:12-16), to review exam records (Tr.63:17-22), or to
merely meet with the safety department of mine management. (Tr.63:24-64:1) In addition, any
2

It is unclear whether there were five, six, or seven MSHA personnel on the mine site to
respond to the hazard complaint. At various places in the record witnesses testified that all three
numbers of inspectors responded to the hazard complaint on April 20, 2012. (Tr.21:1-7; 53:1013; 64:9-15; 65:20-25; 76:18-23; 82:25-83:16; 84:5-14; 120:22-121:4; Ex. S–2) The exact
number is unimportant for this decision. For clarity and consistency I speak of six inspectors.
3

KRI had three shifts on April 20, 2012 (Tr.72:25-73:9): the “first” or day shift
(Tr.73:16-22), the “second” or evening shift (Tr.73:23-74:1), and the “third” or midnight shift,
which was non-production and used for maintenance. (Tr.74:2-11)

40 FMSHRC Page 1546

imminent danger situation constitutes an exception to the advance notice prohibition. (Tr.43:2144:1; 112:3-11)
Whenever an inspection occurred, MSHA inspectors needed escorts and rides into the
mine.4 (Tr.69:17-70:7) Safety directors were designated to escort MSHA inspectors. (Tr.138:24139:5) As a courtesy, inspectors tried to coordinate with the safety directors to minimize
logistical issues. (Tr.74:24-75:11) Still, it was easier to find rides and escorts for the inspectors if
they showed up at or before the shift change because the miners were already at the rendezvous
points and did not need to return from inside the mine to pick up an inspector. (Tr.85:24-86:6)
But, when the inspectors arrived at the mine after the normal shift change time (as happened
here), the logistics could become awkward. If the escort personnel were already underground
when MSHA arrived for an inspection, someone (typically the dispatcher) had to communicate
(typically with the mine phone/PA system) with the underground miners to summon them back
to rendezvous with and transport the MSHA inspectors. (Tr.74:24-76:23)
The mine dispatcher operated the mine’s interconnected page phone system. (Tr.22:2123:7; 157:20-24) When the dispatcher wanted to call a particular location, his summoning call
could be heard through the whole mine. (Tr.158:6-12) There was no way to limit the call to just
one place in the mine. (Tr.37:9-38:1) If the dispatcher wanted to speak only with a person on unit
four, for example, he called out for unit four on the page phone. (Tr.158:20-159:3) When a
person on unit four picked up a phone and responded, the conversation became private. (Tr.38:939:4; 159:4-14) If someone else picked up a phone at the same time, he would be able to hear
what the others were saying since it was a party line. (Tr.39:5-10; 159:16-19) Similarly, if
someone underground wanted to call the dispatcher, the page to the dispatcher would be heard
throughout the mine until the dispatcher pushed a button making the call private. (Tr.89:6-90:3)
Lance Holz, the dispatcher on duty in the dispatch shack at the old portal on April 20,
2012, was the person who made the statement that Inspector Sparks interpreted to be a prohibited
advance notice.5 (Tr.155:4-15; 157:17-19) Among other duties, Holz coordinated rides into the
mine for MSHA inspectors, when needed. (Tr.154:16-23; 161:16-162:6) In this instance, Holz
was working the phone system from the dispatch shed at the old portal to get rides for the six
MSHA inspectors who responded to the hazard complaint (Tr.69:17-22; 161:12-22), while two
of the inspectors looked through record books kept in the dispatch shack. (Tr.161:4-11) As was
customary in such cases, one of the MSHA inspectors—in this instance, Gardner, initially—
monitored the mine’s phone system. (Tr.21:8-20; 40:5-11; 160:7-14) Significantly, Holz testified
that the inspectors reminded him not to give any advance notice of inspection, which was
consistent with the training he had received from KRI. (Tr.160:7-161:2)
The dispatch shed at the old portal was about six miles away from the new portal where
Inspector Sparks was. (Tr.34:12-22; 36:14-20; 167:23-168:6; Ex. R–12) From his location at the
4

MSHA inspectors were routinely escorted and transported into the underground parts of
the mine by miners (consistent with the Section 103(f) “walk-around rights”). (Tr.85:13-23); see
Consolidation Coal Co., 2 FMSHRC 1403 (June 1980) (ALJ); 30 U.S.C. § 813(f).
5

Holz worked as a dispatcher at KRI from 2010 to 2015. (Tr.153:6-25) During that time
he was an hourly employee and reported to the mine foreman. (Tr.155:23-156:14)

40 FMSHRC Page 1547

new portal, Sparks was also able to monitor phone traffic over the mine’s phone system.
(Tr.37:1-8) At one point, he took over monitoring the mine’s phone system from Gardner.
(Tr.23:10-14; 113:16-25) While monitoring the phones, Sparks testified that he heard someone
from the #4 unit ask, “Do we have any company outside?” (Tr.23:15-25; 55:11-24) This is
undisputed. Sparks’ testimony suggested that he considered the inquiry whether there was
“company outside” to be advance notice, regardless of any response by Holz. (See Tr.24:2125:10; 61:3-8) Sparks claimed that Holz answered, “Yeah, I think we do”6 (Tr.23:15-24:1;
55:11-25), which Sparks also considered prohibited advance notice.7 (Tr.24:2-14; 28:17-25)
However, Sparks never said that he knew or factored in the requirement that the advance notice
had to convey advance warning of an inspection to be a violation.
What dispatcher Holz said in response is disputed. While Sparks testified that he heard
Holz say, “Yeah, I think we do,” Holz testified repeatedly to the contrary that he said “I don’t
[know].” (Tr.163:9-16) Holz further denied giving or intending to give advance notice.
(Tr.166:23-167:5) He agreed that someone underground asked if there was company outside, but
he assumed that the voice was asking whether MSHA was present (in the context of arranging
rides and escorts). (Tr.172:13-16) At the hearing, each time Holz was asked what he responded,
he said that his response was, “I don’t know.” (Tr.163:9-16; 174:21-22) On further questioning,
he allowed that he might have said something else (Tr.163:17-19), but his routine and training
was to answer indefinitely. (Tr.162:22-163:8) The indefinite response was the norm in situations
such as this—if anyone asked why they needed to come to the surface, the standard response was
“I don’t know” or “I can’t say.” (Tr.164:2-10; 172:17-19) Sparks confirmed that mine personnel
were in the habit of using such vague language whenever they called into the mine to have
miners come out when MSHA was on site in order to avoid violating the advance notice
prohibition. (Tr.81:22-82:24)
Consistent with Sparks’ statement, it appears that miners often suspected or were aware
of the presence of MSHA inspectors and had developed a practice of intentional vagueness when
asking and answering why they were being summoned to the surface. Given the fact that MSHA
inspectors were at the mine almost daily for inspections, the necessity of summoning escorts and
rides for the inspectors from underground, and the reality that the only way to summon rides was
to use the mine phone system (Tr.158:16-159:1), the dispatcher and other miners involved
adopted a communication technique that feigned ignorance about what was happening whenever
MSHA inspectors were on site for an inspection. (Tr.81:22-82:24) Since miners were trained that
they were prohibited from giving any advance notice of an MSHA inspection (Tr.140:7-19;
160:15-161:2), under the typical scenario, a dispatcher would page into a unit in the mine and
say generically that he needed someone to come to the surface. (Tr.161:23-162:6) If a miner
from underground had a question about why he was being summoned to the surface, the
dispatcher adopted the ruse of not knowing—or at least telling the underground miner he did not
know—why the miner was needed at the surface. (Tr.161:23-164:10) Holz’ had been trained and
6

Sparks later testified that Holz said, “Yeah, I think there is.” (Tr.55:25; 62:16; 79:6;
81:6; 103:15) This minor semantic inconsistency does not change my analysis, and I will refer to
both (“Yeah, I think we do” or “Yeah, I think there is”) interchangeably throughout this decision.
7

Sparks later clarified that only the response could constitute a violation, not the question
whether there was “company” outside. (Tr.103:2-19)

40 FMSHRC Page 1548

knew that he could not say that there were inspectors at the surface needing a ride to conduct an
inspection. (Tr.160:5-161:2; 163:2-16)
III. ANALYSIS
A.

Credibility Assessment

A full analysis of this controversy requires that I consider both the question about
“company,” which is undisputed,8 and Holz’ response to determine which scenario is better
supported by the record. Holz recalled saying, “I don’t know.” Inspector Sparks, on the other
hand, testified that Holz replied, “Yeah, I think there is.” The Commission is reluctant to set
aside a judge’s credibility finding based on the judge’s evaluation of conflicting oral testimony.
Austin Powder Co., 21 FMSHRC 18, 22 (Jan. 1999). This rule appropriately recognizes the
importance of the judge’s observation of witness demeanor. Id. at 24. For the reasons explained
below, I find dispatcher Holz’ testimony that he said “I don’t know” more credible than
Inspector Sparks’ recollection of what he heard while monitoring the mine phones.
1. Sparks’ Credibility
Three items cast a shadow over Sparks’ credibility and bolster my conclusion that Holz
answered, “I don’t know” instead of “Yeah, I think there is.”
First, it is apparent to me that this citation was written under the mistaken assumption that
the question about “company” alone was all that was needed to make out a violation of this
section of the Mine Act. When Sparks decided to cite KRI for the violation, he believed and
concluded that the question alone gave prohibited advance notice of an MSHA inspection. The
citation and the transcript of Sparks’ testimony bear this out. (See Tr.24:21-25:10; 60:10-61:8)
When pressed on the issue, he agreed that it was the response that would complete the inchoate
advance notice. (Tr.103:2-19) (emphasis added) Only the putative statement “Yeah, I think we
do [have company]” would violate the statute. (Tr.23:15-24:1; 55:11-25) I am convinced by a
preponderance of the evidence that Sparks paid closer attention to the undisputed question
whether there was “company” on site than he did to the response.
Second, in general, Sparks came across as overly convinced of his position and unwilling
to admit to any alternate interpretation of the facts.9 He was assertive and forceful in defending
8

While it is undisputed that somebody from Unit #4 asked about “company,” Respondent
argues that “company” could have meant KRI safety department personnel or Murray Energy
corporate personnel. (Resp’t Br. 16) In fact, Joe Myers, Corporate Safety Director, was on site
that day. (Tr.116:1-11) At hearing, Holz testified that “company” could have meant one of a few
things, but he assumed that the person calling probably was asking about MSHA, especially
given that it was a Friday evening after a shift change. (Tr.164:23-165:11) I credit Holz’
statement and find that “company” was in reference to MSHA.
9

At one point in his testimony, Sparks equivocated and said, “However, I think what he
said —. He said, do we have any company outside? And he said yeah, I think we do; I think
there is.” (Tr.55:23-25) (emphasis added)

40 FMSHRC Page 1549

his belief that what he claimed to have heard was advance notice of an inspection. (See, e.g.,
Tr.62:3-6) Sparks’ demeanor in delivering his testimony created the impression that the level of
credibility accorded his testimony should increase due to the fervor of its delivery, despite
obvious shortcomings with some points of fact. For instance, Sparks categorically denied that it
was possible that he misheard the statements. (Tr.81:1-6)
Importantly, Sparks claimed that in “every place” where he had been associated with
miners, the miners used surreptitious and coded language on a regular basis to convey prohibited
advance notice of MSHA inspections. (Tr.26:1-3) He claimed that what he heard on April 20,
2012, was an example of this. (Tr.24:21-25:10) He gave two examples of how miners used code
words to give advance notice that MSHA was on site: (1) a miner asks another, “Is it raining?”
and the other says, “Yes” (Tr.25:13-20); and (2) a miner asks about a belt that does not exist.
(Tr.25:21-25) These examples were apparently taken from Sparks’ experience as an inspector
but had no discernable connection to the facts of this event.10
It is clear that Sparks’ state of mind when he issued this citation was that coded language
was commonly used to convey advance notice, and that the question he heard over the mine PA
system was consistent with such coded language. Sparks’ claim of widespread advance notice
given through coded language suffers from the logical fallacy of a dicto simpliciter ad dictum
secundum quid, i.e., a general rule is taken to be universal. Here, despite a dozen previous
inspections at the Paradise #9 mine, Sparks never had any issues with miners giving advance
notice at this mine until he issued Citation No. 8502992. (Tr.26:4-22) Additionally, Sparks was
not aware of any prior section 103(a) violations at the Paradise #9 mine. (Tr.117:14-21) In fact,
despite the alleged advance notice pervasive in the industry, Sparks had issued only one advance
notice citation before this one (Tr.32:14-18)—it was at another mine and the miners in that
instance admitted that they were giving advance notice. (Tr.30:17-31:3; 32:14-24) The evidence
simply did not support his sweeping and categorical statement that such cryptic language was
commonly used at “every” mining facility he had had experience with, and, specifically, at this
mine.
Third and finally, Sparks’ testimony was out of step with common sense and the
contemporaneous records made at the time he issued the citation regarding several important
points. Sparks never interviewed Holz, nor presumably his fellow inspectors, to confirm his
10

During the hearing, counsel for the Secretary mentioned in her argument opposing
Respondent’s oral Motion for Directed Verdict that there was “a pattern throughout the mine
industry of documented coded [sic] to alert to [sic] inspectors [. . .] that MSHA inspectors are
going around.” (Tr.126:7-12) Counsel also referred to language in the Commission’s remand
decision about “advance notice [. . .] be[ing] conveyed through ambiguous language.”
(Tr.126:18-20); see 38 FMSHRC at 1949 n.7. However counsel’s argument is not evidence that I
can consider. See Sec’y of Labor on behalf of Jackson v. Mountain Top Trucking Co., Inc., 21
FMSHRC 1207, 1213 (Nov. 1999) (noting that statements of counsel are not evidence). Nor is
the Commission’s dicta footnote a holding that might become law of the case. There is no
testimony, Commission authority, nor any exhibits providing me with a factual basis or binding
precedent against which to evaluate the otherwise unsupported and sweeping statement from
Sparks that the practice of giving advance notice was a given in every mine he had ever dealt
with. (Tr.24:21-26:3)

40 FMSHRC Page 1550

conclusion that Holz had given a prohibited advance notice of an MSHA inspection. (Tr.34:1235:3; 87:13-18; 168:24-169:19) Sparks instead relied solely on his perception and recall of what
he heard to conclude that advance notice had been given. (Tr.54:16-20) I am aware that it was
several miles from where Sparks was to the dispatch shack where Holz and the other inspectors
were (Tr.34:12-19), but it seems obvious and prudent that such an interview would be helpful
and not prohibitively onerous. More diligence in this regard might have had a positive impact on
my assessment of Inspector Sparks’ credibility.
Interestingly, despite not interviewing Holz to confirm what he thought he heard, Sparks
did talk to other workers at the mine. He testified that he immediately went outside the dispatch
shack and told Joe Myers, the assistant corporate safety director, what had happened and that he
was going to issue a citation. (Tr.24:2-14) Sparks also testified that he interviewed rank-and-file
miners on the #4 unit as well as the section foreman on April 20, 2012. (Tr.33:4-34:11) He
testified that nobody knew who called or admitted to asking about “company.” (Tr.33:10-34:11)
However, Sparks’ field notes, written on the day of the inspection, contained no mention of these
potentially corroborating conversations. (Tr.33:11-23; Ex. R–2) Also, in his sworn declaration
filed in opposition to the Respondent’s Motion for Summary Decision (Ex. R–7), he failed to
mention any conversation with miners on the day of the citation. The declaration was prepared
on July 20, 2015, nearly three years after the events in question but still nearly two years before
the hearing. (Tr.58:3-15; Ex. R–7)
Sparks also testified that Holz hesitated before responding to the person on the phone
system (Tr.79:8-15), but he omitted this detail from the notes he made about this incident at the
time he issued the citation. (Tr.79:16-18; 81:7-9) Sparks testified that after a couple of seconds’
delay he asked the other person on the phone, “Who is this?” to which there was no answer.
(Tr.24:7-14) Again, he failed to document this alleged interchange at the time it happened.
(Tr.81:10-15) When contrasted with the granular detail of his hearing testimony on these points,
this inconsistency created the impression that Spark’s recollection of specific events—notably
undocumented and unconfirmed events—nearly five years before the trial date, became more
detailed and precisely tailored to the elements of the Secretary’s case as the time for trial
approached. The effect of this is to undermine his credibility.
Sparks’ belief that coded language was common and lay at the root of what happened
here is simply unsubstantiated. (Tr.24:21-26:8) His emphasis on this point early on in his
testimony created the impression that he was already “leaning” toward concluding that what he
heard that day was a violation. Sparks’ failure to verify by interview, his failure to document
some of the key points he raised in his testimony, and his vehemence that his memory was
unassailable created an abiding impression of tainted perception and enhanced recall.
2. Holz’ Credibility
On the whole, Holz’ testimony was more credible than Sparks’ and his version of the
events more believable for three reasons.
First, Holz testified that he had been trained not to say anything that could be taken as an
advance warning of an MSHA inspection while at KRI. (Tr.160:15-161:2) Shannon Baker,

40 FMSHRC Page 1551

KRI’s safety director at the time of this citation, testified that his miners did not use coded
language to circumvent the advance notice rule. (Tr.140:12-19) In his eight years at the mine,
Baker never witnessed anyone giving advance notice of an inspection. (Tr.141:8-13) He testified
that, to his knowledge, no coded language was ever used (Tr.141:17-22), and he was not aware
of any prior advance notice citations at the Paradise #9 mine. (Tr.141:23-142:23) Indeed, as
mentioned above, prior to Citation No. 8502992, Sparks had never had an issue with anyone
giving advance notice with or without the use of coded language at the Paradise #9 mine.
(Tr.26:4-23) Nothing in the record undermines Baker’s testimony. I find Baker’s testimony to be
credible, and it tends to support Holz’ claims.
Second, nearly five years passed between the contested events and the hearing. By then,
it had been two years since Holz had left his dispatcher job at KRI. (See Tr.153:23-25) His
leaving KRI had nothing to do with these events. (Tr.153:14-18) There was no evidence to
suggest that Holz had any reason to skew his testimony in favor of this former employer. His
statement that he believed that it was more likely that he said, “I don’t know” (Tr.163:15-19;
164:2-4), did not sound self-serving.11 The record contains nothing to suggest that Holz had a
reason to bolster or misstate his recollection of these events. See, e.g., Sunny Ridge Mining Co.,
16 FMSHRC 1797, 1818 (Aug. 1994) (ALJ) (where the ALJ was persuaded by the credible
testimony of respondent’s former employees).
Third and most notably, Holz was in the presence of two MSHA inspectors at the time
the contested statements were heard, and the inspectors explicitly cautioned him against giving
prohibited notice. (Tr.160:7-14) This fact alone very convincingly undercuts Sparks’
recollection. It is difficult to believe that Holz would not only go against his training and give
prohibited advance notice but would risk doing so in a confined space (see Ex. R–12) in the
presence of two MSHA inspectors who had just warned him not to.
I find that a preponderance of the evidence makes it more believable and consistent that
Holz’ answer to the question about “company” was “I don’t know” and not “Yeah, I think there
is.” Accordingly, I find no advance notice was given and, therefore, there was no violation.
B.

Only Advance Notice of an Inspection is Prohibited

I have already found Holz to be a more credible witness than Sparks and, thus, have
found that Holz said, “I don’t know” in response to the question of whether there was company
outside. This is dispositive and ends the inquiry. Nevertheless, even assuming Sparks’ version of
Holz’ answer—“Yeah, I think there is”—was what was actually uttered, the Secretary has failed
to prove that Holz provided advanced notice of an inspection in violation of section 103(a).
Section 103(a) plainly prohibits advance notice of an inspection: “In carrying out the
requirements of this subsection, no advance notice of an inspection shall be provided to any
person [. . .] .” 30 U.S.C. § 813(a) (emphasis added). The Commission’s decision in the prior
appeal did not change this requirement: “Inherent in our analysis is an understanding that
11

This was the only time Holz was ever cited for anything at KRI. (Tr.160:1-3) He
claimed to remember it well. (Tr.159:21-160:4)

40 FMSHRC Page 1552

ambiguous language can violate section 103(a), if context establishes that it conveyed advance
notice of an inspection.” 38 FMSHRC at 1949 (emphasis added).12
The statute’s limited scope recognizes the reality that certain mines, like the Paradise #9
mine, have a constant MSHA presence on site and harmonizes this with the need to prevent the
sort of advance notice that would defeat the specific purposes of section 103(a), i.e.,
“determining whether an imminent danger exists, and [. . .] determining whether there is
compliance with the mandatory health or safety standards or with any citation, order, or decision
issued under this title or other requirements of this Act.” 30 U.S.C. § 813(a). It is consistent with
this limited scope that communicating that MSHA was on site was only prohibited if it gave or
effected notice of an inspection. Giving notice of MSHA’s presence under other non-inspection
circumstances is not prohibited. Thus, saying, “Yeah, I think there is,” is not necessarily a
prohibited communication even though it happens in connection with an MSHA inspection.
Here, the citation does not allege nor does any other evidence prove that the overheard
language actually did or even intended to give advance notice of an MSHA inspection. (Ex. S–1)
In the citation, Inspector Sparks documented what he believed to be the sine qua non of the
alleged violation: “[E]vidence was provided to MSHA that mine personnel provided advance
notice to miners underground that MSHA inspectors were on mine property.”13 (Id.) (emphasis
added) When pressed to confirm whether he believed the mere act of giving notice of the
presence of MSHA personnel was a violation, he reiterated that such was his understanding and
frame of mind when he wrote the citation. (Tr.60:10-61:16) This, of course, is wrong. Only
advance notice of an inspection is prohibited.
MSHA was present at the Paradise #9 mine nearly every day. (Tr.102:7-24; 142:24143:8) It was a fact of life at this mine that miners were constantly aware of MSHA’s presence.
12

Respondent makes a novel, creative argument that the plain language of section 103(a)
indicates it applies only to the Secretary of Labor and the Secretary of Health, Education, and
Welfare, but not to mine operators. (Resp’t Br. 6) Instead, Respondent argues, section 110(e) is
the clear mechanism for preventing and enforcing advance notice violations. (Id. at 8) I am not
convinced. The applicable statutory language (“In carrying out the requirements of this
subsection, no advance notice of an inspection shall be provided to any person [. . .] .”) is an
imperative sentence with no clear subject. While the subject could be the Secretary of Labor or
the Secretary of Health, Education, and Welfare, as Respondent argues, I note that the “no
advance notice of an inspection” clause is found in the only sentence in section 103(a) that
utilizes an implied subject. Although Respondent would have me believe the language is plain
and unambiguous given that the language of the surrounding sentences explicitly apply to the
Secretary of Labor and/or the Secretary of Health, Education, and Welfare, I conclude this
particular clause and sentence is ambiguous because it is unclear who the implied subject is.
Therefore, I defer to the Secretary’s reasonable interpretation of section 103(a) that nobody—
whether MSHA or mine employees—is permitted to give advanced notice of an inspection.
Hopkins Cty. Coal, LLC, 38 FMSHRC 1317, 1334-36 (June 2016) (deferring to Secretary’s
reasonable interpretation of section 104(b)), aff’d, 875 F.3d 279 (6th Cir. 2017).
13

The Petition does not allege that advance notice of an inspection was given. It only
incorporates the language in the citation. (Ex. S–1) The citation is attached to the Petition.

40 FMSHRC Page 1553

(Tr.144:3-9) There were multiple reasons why MSHA inspectors could be on the mine site that
had nothing to do with conducting inspections. See discussion infra Part II. In all of these
scenarios, it is common and appropriate (not prohibited) to communicate that MSHA inspectors
are present. Even in the instances where MSHA inspectors were on the site to do inspections, it
was necessary to arrange escorts and rides for them from the surface into the mine. So, assuming
that Holz said, “Yeah, I think there is,” instead of “I don’t know,” or something of similar
import, there is only a small subset of facts where such a statement would be prohibited, e.g., if
Holz intended to convey the message that MSHA inspectors were on the premises to conduct an
inspection and he intended his statement to be an advance warning instead of one of the many
other possible and innocuous scenarios. It is the Secretary’s burden to prove this intent by a
preponderance of the evidence.
Even assuming Holz intended to convey advance notice of an inspection, it would have
been very difficult to effectively do so. Neither Holz nor the other person on the phone said
anything about where Sparks would be traveling. (Tr.72:15-20) In fact, Sparks testified that he
did not think it was even possible for the miners to know where MSHA inspectors were going.
(Tr.72:21-23; 96:24-25) There were several miles of belts in this mine. (Tr.95:1-9) With such a
large mine and the fact that this was a hazard complaint inspection (Tr.95:25-96:5), the men
underground would not know where MSHA would be going, even if they had advance notice
that MSHA was on site to conduct an inspection. (Tr.96:10-25) Furthermore, because all of the
MSHA inspectors had to be escorted into the mine and needed rides (Tr.69:17-22), they were
trained not to tell escorts where they were going until they were underground. (Tr.70:22-71:8)
Consistent with this practice, Sparks would not tell his escort where he intended to go until they
got underground. (Tr.69:23-70:21) Even though MSHA notified mine management that they
were at the mine in response to a hazard complaint (Tr.66:1-67:9), until the MSHA inspectors
were underground, no one at the mine knew where they were going. (Tr.71:22-72:3)
To bolster his argument, the Secretary cites extensively to Topper Coal Company, 20
FMSHRC 344 (Apr. 1998), in which the Commission affirmed the Judge in finding that the
operator violated section 103(a). In that case, three MSHA inspectors arrived at Topper Coal
Company and told Gary Fields, the company’s president, that they were there to conduct a spot
inspection and explicitly instructed him not to telephone underground to alert miners. Id. at 345.
Fifteen to 20 minutes after this instruction, and while two of three inspectors crawled into the
mine to conduct the inspection, Fields telephoned the working section and told a miner that
“there are two federal inspectors in there. Tell the men to watch out and be careful.” Topper Coal
Co., 17 FMSHRC 945, 946 (June 1995) (ALJ).
The facts in Topper Coal are clearly distinguishable from those here. First, the mine in
Topper Coal, the No. 9 mine, was significantly smaller than the Paradise #9 mine.14 Unlike the
Paradise #9 mine, the No. 9 mine in Topper Coal presumably did not have MSHA inspectors
14

At the time of the violation, Topper Coal Company produced 135,401 production tons
per year, and its No. 9 mine produced 29,716 production tons per year. Topper Coal Co., 17
FMSHRC at 955. By way of comparison, at the time of this alleged violation, KRI produced
27,688,481 production tons per year, and the Paradise #9 mine produced 1,758,880 production
tons per year. (Ex. R–4) In other words, the Paradise #9 mine at issue in this case produced 59
times as much coal as the No. 9 mine in Topper Coal.

40 FMSHRC Page 1554

present on an almost-daily basis. Thus, any notification of MSHA’s presence, even if for a noninspection purpose, would likely have triggered higher levels of unease and suspicion for the
miners at the No. 9 mine. Additionally, and importantly, given the smaller size of the mine in
Topper, with one working section and only nine miners underground, Fields knew where the
inspectors were heading. Topper Coal, 20 FMSHRC at 345 n.3, 346. By contrast, the Secretary
has not established here that anybody other than the inspectors knew with any degree of
specificity where the inspectors were ultimately going.
Second, in Topper Coal there was no good reason for Fields to contact any of the miners
working underground. Unlike this case, where there was a legitimate need to arrange rides and
escorts, the inspectors in Topper did not require rides or miners to escort them. Id. at 345.
Nevertheless, Fields proactively and intentionally called the working section despite the MSHA
inspectors’ explicit warning not to.
Finally, the advance notice of an inspection that Fields gave the underground miner over
the telephone was explicit and its contents uncontested. Although Fields argued at hearing that
he made the call because of his concern for the safety of the inspectors who might otherwise be
run over by shuttle cars, the Judge discredited this explanation, reasoning that Fields had not
previously expressed concern for the inspectors’ safety before calling and there was no reason
Fields needed to specifically identify the people entering the mines as “federal inspectors.”
Topper Coal, 17 FMSHRC at 950-51. Here, by contrast, Holz contested ever saying the
purported violating language—“Yeah, I think so”—in response to the question whether there
was “company” outside. Furthermore, Holz’ alleged statement is ambiguous and its intent and
effect are unclear, particularly in light of the circumstances surrounding the need for escorts and
rides.
Ultimately, there is nothing but Sparks’ pre-formed and unsupported opinion—that
covert and coded language was used on a regular basis to circumvent this prohibition—to
support the essential component of the prima facie case that the notice given pertained to an
MSHA inspection. The fact that MSHA’s presence was quotidian, that no evidence shows that
anyone but Sparks, his fellow inspectors, or Mine Foreman Kapp knew why these specific
MSHA inspectors were on site, and that there were several permissible reasons to tell miners
underground that MSHA personnel were on site significantly dilutes the convincing power of
Sparks’ testimony and the Secretary’s argument. The most a fair assessment of the evidence
yields is that the language Sparks claimed he heard might have given notice that MSHA
personnel were present.
Asking whether “company” was present may well have become part of a prohibited
advance notice if the answer completed the communication in a way that could be understood to
give advance notice of an MSHA inspection. If, however, the question about “company” was
asked in the context of whether people underground needed to stop what they were doing and
report to a rendezvous point to provide rides and escorts for people at the surface, even if they
were MSHA inspectors, neither the question nor the response communicated prohibited advance
notice of an MSHA inspection. In the context of Holz’ trying to arrange rides for the MSHA
inspectors (Tr.161:12-22), it is more consistent with his training, his memory, and the facts on
the ground and in the record, that the question about whether “company” was present was an

40 FMSHRC Page 1555

innocuous inquiry relating to the need for rides and escorts rather than a precursor to prohibited
advance notice of an MSHA inspection, the details of which were yet to be revealed to anyone
by the MSHA inspectors. Thus, even though Holz’ alleged statement could appear to be a
violation, seen in the larger context, I find it is more believable that it was made with the intent
to facilitate finding escorts and rides for the MSHA inspectors. See, e.g., Portable, Inc., 36
FMSHRC 3249, 3257-58 (Dec. 2014) (ALJ) (where the Judge found that notifying a crusher
operator of an inspection for the purpose of securing an escort did not constitute advanced notice
of an inspection in violation of section 103(a)).
Considering the entirety of the record, the preponderance of the evidence stops short of
proving that Holz gave or even intended to give advance notice of an inspection.15
IV. SUMMARY AND ORDER
I find that dispatcher Holz’ testimony about what he said in response to the query, which
Inspector Sparks thought constituted an advance notice of MSHA presence on the mine site, was
more credible than Sparks’ recollection. Sparks appeared to be focused on the question based on
a mistaken belief that it alone could violate the prohibition against giving advance notice of an
MSHA inspection per section 103(a) of the Mine Act. As a result, Sparks’ recollection of what
he thought he heard in response is less convincing than Holz’ testimony that his response was “I
don’t know.” I find that the communication Sparks alleged was advance notice of MSHA
presence at the mine site was not intended to be, nor was it by its very content, advance notice of
an MSHA inspection. As a result, the Secretary has failed to prove by a preponderance of the
evidence an essential element of the prima facie case, and the citation issued on April 20, 2012,
must be vacated.
Accordingly, it is ORDERED that Citation No. 8502992 is hereby VACATED.

/s/ L. Zane Gill
L. Zane Gill
Administrative Law Judge

15

Respondent makes another novel, interesting argument that section 103(a), as applied
to KRI here, violates the first amendment because the violative communication was non-specific
and occurred while KRI was attempting to exercise its section 103(f) rights. (Resp’t Br. 22-24)
As KRI has already prevailed, I see no need to address this argument.

40 FMSHRC Page 1556

Distribution:
LaTasha T. Thomas, Esq.
U.S. Department of Labor
Office of the Solicitor
618 Church Street
Suite 230
Nashville, TN 37219-2456
Jason W. Hardin, Esq.
Fabian VanCott
215 South State Street
Suite 1200
Salt Lake City, UT 84111-2323

40 FMSHRC Page 1557

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9900 / FAX: 202-434-9954

December 28, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING:
Docket No. YORK 2017-0096
A.C. No. 30-03460-434978

v.
POLAND SAND & GRAVEL, LLC,
Respondent

Mine: Poland Sand & Gravel

SUMMARY DECISION
Before:

Judge Bulluck

This case is before me upon a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor (“Secretary”) on behalf of the Mine Safety and Health Administration
(“MSHA”) against Poland Sand & Gravel pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The Secretary seeks a civil penalty in
the amount of $116.00 for an alleged violation of his mandatory safety standard regarding berm
requirements on banks of roadways under certain conditions.
The Secretary filed a Motion for Summary Decision (“Sec’y Mot.”), a Memorandum of
Law in Support of the Secretary’s Motion for Summary Judgment (“Sec’y Mem.”), and Parties’
Stipulations for Summary Judgment (“Jt. Stips.”) with attached exhibits (“Exs. A through C-3”),
including photographs of the bench and water clarifier in question, and diagrams of the bench
and the path and location of traveling vehicles. Poland Sand & Gravel, represented by managing
member, Roger Rommel, filed a Motion for Summary Judgment (“Resp’t Mot.”) and a
Memorandum of Support for the Respondent’s Motion for Summary Judgment (“Resp’t
Mem.”).1 The Secretary then filed the Secretary’s Memorandum of Law in Response to
Respondent’s Motion for Summary Judgment (“Sec’y Reply”). Poland Sand & Gravel, in turn,
filed Support for the Respondent’s Motion in Response to the Petitioner’s Request for Summary
Judgment (“Resp’t Reply”). Subsequently, the parties jointly filed Supplemental Stipulations
(“Jt. Stips.”) with attached exhibits (“Exs. D and E”).
Poland Sand & Gravel is not contesting the gravity or negligence ascribed to the violation
but the fact of violation, which turns solely on whether the cited bench was a roadway. Indeed,
the parties agree that if the bench constituted a roadway, there was a violation. The following
are issues for resolution: (1) whether Poland Sand & Gravel violated 30 C.F.R. § 56.9300(a);
and, if so, (2) the appropriate penalty for the violation.
1

This Memorandum was mistitled “Support for the Petitioner’s Motion for Summary
Judgment.”

40 FMSHRC Page 1558

Pursuant to Commission Procedural Rule 67(b), “[a] motion for summary decision shall
be granted only if the entire record, including the pleadings, depositions, answers to
interrogatories, admissions and affidavits, shows: (1) that there is no genuine issue as to any
material fact; and (2) that the moving party is entitled to summary decision as a matter of law.”
29 C.F.R. § 2700.67.
It is well settled that summary decision is an extraordinary measure and the Commission
has analogized it to Rule 56 of the Federal Rules of Civil Procedure, which the Supreme Court
has construed to authorize summary judgment only “upon proper showings of the lack of a
genuine, triable issue of material fact.” Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9
(Jan. 2007) (citations omitted). When considering a motion for summary decision, the
Commission has noted that “the Supreme Court has stated that ‘we look at the record on
summary judgment in the light most favorable to . . . the party opposing the motion,’ and that
‘the inferences to be drawn from the underlying facts contained in [the] materials [supporting the
motion] must be viewed in the light most favorable to the party opposing the motion.”’ Id. at 9
(quoting Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962); United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)). Moreover, Commission Judges should not grant
motions for summary decision “unless the entire record shows a right to judgment with such
clarity as to leave no room for controversy and establishes affirmatively that the adverse party
cannot prevail under any circumstances.” KenAmerican Res., Inc., 38 FMSHRC 1943, 1947
(Aug. 2016) (quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir.
1994)); but see Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that there is no genuine issue
for trial unless a rational trier of fact could find for the nonmoving party).
Based on the agreement of the parties to file cross motions for summary decision and the
facts, as represented by the parties, I find that there is no genuine issue as to any material fact.
For the reasons set forth below, I conclude that the Secretary is entitled to summary decision as a
matter of law, AFFIRM the citation, as issued, and assess a penalty of $116.00 against
Respondent.
I.

Joint Stipulations

The parties have stipulated as follows:2
1. Poland Sand & Gravel, LLC (“Respondent”) operates the Poland Sand & Gravel Mine
(the “Mine”).
2. The Mine produces sand and gravel. It is located in Herkimer County, New York.
3. In 2016, Respondent worked a total of 15,066 hours.
4. Respondent is an “operator” as defined in section 3(d) of the Federal Mine Safety and
Health Act of 1977, as amended (hereinafter “the Act”), 30 U.S.C. § 803(d).
5. Respondent and the Mine are subject to the jurisdiction of the Mine Act.
2

The parties’ Joint Stipulations were misnumbered in the original document, and have
been corrected for ease of reference in this Decision. The parties’ Supplemental Stipulations
have been sequentially numbered 51 through 63.

40 FMSHRC Page 1559

6. This proceeding is subject to the jurisdiction of the Federal Mine Safety and Health
Review Commission and its designated Administrative Law Judges pursuant to sections
105 and 113 of the Act.
7. True copies of the citation at issue in this proceeding were served on Respondent as
required by the Act.
8. The proposed civil penalty will not affect Respondent’s ability to remain in business.
9. Citation No. 9310591 was issued on January 9, 2017 by MSHA Inspector Vincent F.
D’Angelo. Mr. D’ Angelo is an authorized representative of the Mine Safety and Health
Administration.
10. The parties stipulate that, should a violation be affirmed, the violation is not “significant
and substantial.”
11. The parties stipulate that, should a violation be affirmed, the Respondent was moderately
negligent.
12. The parties stipulate that if injury were to occur as a result of the alleged violation, such
injury would result in injuries that were permanently disabling.
13. Citation No. 9310591 was issued with respect to a berm not being provided along an
approximately 42 feet opening at the edge of a bench adjacent to a Clearwater 2000 water
clarifier (the “water clarifier”).
14. The water clarifier is mounted on a chassis with wheels at the rear.
15. The bench was approximately 12 to 15 feet wide, as measured from the left side of the
water clarifier to the edge of the drop-off.
16. The drop-off measured 6 to 8 feet from the bench surface to the ground below.
17. There was a pond approximately 16 feet away from the edge of the bench at the ground
surface.
18. Attached hereto, as Exhibit A, is a true and accurate photograph, with extraneous
markings, of the water clarifier where Respondent installed it, across from the
approximately 42 foot unbermed area of the bench, with extraneous markings.
19. The area marked “1” on Exhibit A depicts the drop-off from the surface of the bench to
the ground below.
20. The drop-off from the bench, marked “1” on Exhibit A, is 6 to 8 feet.
21. Attached hereto, as Exhibit B, is a true and correct photograph, with extraneous
markings, of the water clarifier and the bench taken from the rear of the water clarifier.
22. The distance between the left side of the water clarifier and the edge of the bench dropoff is between 12 to 15 feet.
23. There was a block retaining wall erected to the right of the water clarifier, marked as such
on Exhibit B.
24. The distance between the right side of the water clarifier and the block retaining wall on
the bench is approximately 12 feet.

40 FMSHRC Page 1560

25. Attached hereto, as Exhibit C, is a true and correct bird’s eye diagram of the bench, the
water clarifier and the retaining wall, with extraneous markings.
26. The area marked “X” on Exhibit C is the space between the water clarifier and the edge
of the bench immediately adjacent to the 6- to 8-foot drop-off.
27. The area marked “1” on Exhibit C is the drop-off adjacent to the bench, which is
approximately 6 to 8 feet lower than the bench.
28. The area marked “X” on Exhibit C is approximately 12 to 15 feet wide, as measured from
the left side of the water clarifier to the 6- to 8-foot drop-off, marked “1”.
29. The area marked “Y” on Exhibit C is approximately 12 feet wide, as measured from the
right side of the water clarifier to the retaining wall.
30. The area marked “Pond” on Exhibit C depicts the pond adjacent to the drop-off.
31. The Pond, as shown on Exhibit C, is approximately 16 feet from the edge of the drop-off,
marked “1.”
32. Between December 2, 2016 and December 4, 2016, Respondent constructed the bench
using a Doosan DX340 excavator.
33. The DX340 excavator, likewise, filled the footing of the retaining wall adjacent to the
bench during this same period.
34. Attached hereto, as Exhibit C-1, is a copy of Exhibit C modified to show the path of the
DX340 excavator during the construction of the bench and the backfilling of the retaining
wall footing.
35. The blue arrow on Exhibit C-1 depicts the approximate path and direction of the DX340
excavator as it constructed the bench and backfilled the retaining wall footing.
36. The area marked “X” on Exhibit C-1 is approximately 12 to 15 feet from the right of the
DX340 excavator to the 6- to 8-foot drop-off marked as “1.”
37. The area marked “Y” on Exhibit C-1 is approximately 12 feet from the left of the DX340
excavator to the retaining wall.
38. On or about December 4, 2016, Respondent placed the water clarifier on a tandem tow
dolly and used the DX340 excavator and a Yanmar B5 mini excavator (the “B5
excavator”) to transport the water clarifier from a nearby parking area to the bench.
39. The B5 excavator weighs approximately 5 tons.
40. The DX340 excavator weighs approximately 34 tons.
41. The B5 excavator pulled the dolly-mounted water clarifier from the front end up the
bench, while the DX340 excavator pushed the water clarifier from the rear.
42. Attached hereto, as Exhibit C-2, is a modified diagram of Exhibit C that illustrates the
transport and placement of the water clarifier.
43. The area marked “2” on Exhibit C-2 depicts the approximate location of the B5
excavator.

40 FMSHRC Page 1561

44. The area marked “3” on Exhibit C-2 depicts the approximate location of the DX340
excavator.
45. The blue arrows depicted on C-2 depict the direction of travel of the DX 340 excavator,
the B5 excavator, and the dolly-mounted water clarifier.
46. Once the water clarifier was in place, the B5 excavator traveled on the bench between the
clarifier and the retaining wall, through the area marked “Y” on Exhibit C-2.
47. Once the water clarifier was in place, as depicted in Exhibit C, Respondent brought an
Earthforce EF500 compact tractor backhoe (the “backhoe”) on the bench to the left side
of the water clarifier in order to power the water clarifier’s hydraulics.
48. Attached hereto, as Exhibit C-3, is a copy of Exhibit C modified to show the path and
location of the backhoe on the bench.
49. The blue arrow on Exhibit C-3 depicts the approximate path and location of travel of the
backhoe on the bench.
50. The area marked “Z” on Exhibit C-3 depicts the approximate location where the backhoe
came to a rest and was used to power the hydraulics of the clarifier.
51. A portion of the bench was intended to be permanent, and a portion of the bench was
intended to be temporary.
52. The condition and dimensions of the bench as it existed on the date of the citation are
reflected in Exhibits A through C, previously submitted.
53. Attached hereto, as Exhibits D and E, are photographs of the bench taken and annotated
by Respondent on October 24, 2018.
54. Subsequent to the citation, Respondent removed a portion of the bench and intends to
remove additional portions of the bench, circled in the photographs attached as Exhibits
D and E, at some point in the future.
55. The water clarifier was permanently installed on the bench.
56. The water clarifier is permanently mounted on a chassis with wheels at the rear, as shown
in Exhibit A and in Exhibit D.
57. Additionally, the front end of the water clarifier had been mounted on a tandem tow dolly
on December 4, 2016, to allow Respondent to support the front of the water clarifier and
steer the water clarifier on to the bench.
58. Once the water clarifier was positioned on the bench on December 4, 2016, the tandem
tow dolly was removed, leaving the water clarifier on the chassis with the wheels in the
back and supports in the front, as depicted in Exhibit A and Exhibit D.
59. Water clarifiers are not regularly moved at the Mine.
60. The B5 excavator, depicted as “2” in Exhibit C-2, traveled approximately 84 feet on the
bench during placement of the water clarifier; specifically, the B5 excavator traveled
approximately 42 feet onto the bench from the roadway, and then an additional 42 feet
back down the bench toward the roadway.

40 FMSHRC Page 1562

61. The backhoe, depicted as “Z” in Exhibit C-3, traveled approximately 42 feet on the bench
after placement of the water clarifier in order to power the water clarifier’s hydraulics for
purposes of positioning the water clarifier’s supporting legs; specifically, the backhoe
traveled approximately 21 feet up the bench from the roadway, and then an additional 21
feet back down the bench toward the roadway.
62. The tank, depicted in Exhibit B, is permanent.
63. The photographs in Exhibits A and B were not the photographs referenced in Inspector
D’Angelo’s citation, but rather were provided to MSHA by Respondent after issuance of
the citation.
II.

Factual Background

Poland Sand & Gravel operates the Poland Sand & Gravel Mine, a surface sand and
gravel operation, in Herkimer County, New York. Jt. Stips. 1, 2. Between December 2 and 4,
2016, Poland Sand & Gravel constructed a bench solely for permanent placement of a water
clarifier to be used in the process of washing mined aggregate. Jt. Stips. 32, 55; Resp’t Mem. at
1. The bench was 42 feet long and 24 to 27 feet wide, and was built 6 to 8 feet above ground.
Jt. Stips. 16, 18, 28, 29; see Exs. A, C. At the back of the bench was a block retaining wall that
held loose material. Jt. Stip. 24; see Ex. B. No berms had been built along the front edge of the
bench, exposed to a 6- to 8-foot drop-off with a pond approximately 16 feet away at ground
level. Jt. Stips. 17, 18, 20, 30, 31; see Exs. A, C.
Poland Sand & Gravel permanently installed its water clarifier in the middle of the bench,
leaving approximately 12 to 15 feet between the clarifier and the front edge, and about 12 feet
between it and the back retaining wall. Jt. Stips. 29, 37, 42, 55; see Exs. C, C-1. The water
clarifier is a large piece of equipment permanently mounted on a chassis with wheels in the rear
and supports in the front. Jt. Stips. 56, 58. To move the water clarifier into position on the
bench, on December 4, Poland Sand & Gravel pulled the clarifier, mounted on a tandem tow
dolly for support of the front and steering, from the roadway with a five-ton mini excavator,
while pushing it with a larger 34-ton excavator. Jt. Stips. 38, 39, 40, 57. The front mini
excavator was driven from the roadway approximately 42 feet along the bench to install the
water clarifier, then traveling around the it, the excavator was driven another 42 feet back down
the bench to the roadway. Jt. Stip. 60; see Ex. C-2. The back excavator did not travel onto the
bench. Jt. Stip. 60. Once the water clarifier was positioned, the tandem tow dolly was removed,
and the operator drove a backhoe onto the bench to power the water clarifier’s hydraulic system,
which leveled its supporting legs. Jt. Stips. 47, 48, 50, 58, 61; see Ex. C, C-3. The operator
drove the backhoe between the water clarifier and the exposed edge of the bench for
approximately 21 feet, and then another 21 feet back down to the roadway. Jt. Stips. 49, 61; see
Ex. C-3; Resp’t Reply at 2.
Subsequent to issuance of the citation, Poland Sand & Gravel cut back the width of the
bench between the edge and the water clarifier, and according to its installation plan, it had
intended to remove additional portions. Resp’t Mem. at 1; Jt. Stips. 51, 54; see Exs. D, E. In
any case, however, the operator had intended to maintain the 12-foot area between the water

40 FMSHRC Page 1563

clarifier and the back retaining wall in order for the equipment to be accessed for service.3
Resp’t Mem. at 1.
On January 9, 2017, Inspector Vincent D’Angelo conducted a regular inspection of the
mine. After examining the bench, water clarifier, and drop-off, he determined that the bench had
been used as a travelway and issued a citation.
III.

Findings of Fact and Conclusions of Law
A. Fact of Violation

Inspector D’Angelo issued 104(a) Citation No. 931059, alleging a violation of section
56.9300(a) that was “unlikely” to cause an injury, and was due to Poland Sand & Gravel’s
“moderate negligence.”4 The “Condition or Practice” is described as follows:
A 15 foot section (as measured with a tape measure) of travel way
located on a bench beside a trailer of water classifiers [clarifier]
past the scale house was not provided with a berm on the bank
where an estimated 10 foot drop off exist to cause a vehicle to
overturn or endanger persons in equipment. The travel way was
used to locate the trailer and there was no tracks observed beside
the berm. A miner would be exposed to back, neck, head, and
other permanently disabling injuries from over travel of a berm.
Pen. Pet. at 5. 5 The citation was terminated on January 10, 2017, after Poland Sand & Gravel
restricted entry to the bench by placement of a perpendicular berm. Pen. Pet. at 5.
To establish a violation of section 56.9300(a), the Secretary must show: (1) that there was
a roadway, (2) that a sufficient drop-off existed to cause a vehicle to overturn or endanger
persons in equipment, and (3) that no berms or guardrails were in place for protection at the
edge. Lakeview Rock Products, Inc., 33 FMSHRC 2985, 2988 (Dec. 2011).

3

Respondent did not clarify how the water clarifier would be serviced in the future.

4

30 C.F.R. § 56.9300(a) provides that “[b]erms or guardrails shall be provided and
maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to
cause a vehicle to overturn or endanger persons in equipment.”
5

Although the description of the violation may be confusing, the parties stipulated that
the exposed edge of the bench did not have berms. Jt. Stip. 18.

40 FMSHRC Page 1564

In the instant case, the parties agree that there were no berms along the edge of the bench
during installation of the water clarifier, and Poland Sand & Gravel does not challenge the
Secretary’s contention that the drop-off is of sufficient height for a vehicle to overturn.6
Jt. Stip. 16. Consequently, the only remaining question is whether, during the permanent
installation of the water clarifier, the nature and usage of the bench constituted a roadway for
purposes of section 56.9300(a).
While the term “roadway” is not defined in the Secretary’s regulations, the Commission
has looked to the “common usage” and “a common-sense application of the standard to the
facts” to determine whether a roadway exists. See Capitol Aggregates, Inc., 4 FMSHRC 846,
847 (May 1982) (interpreting former section 56.9-22, which is identical to current section
77.1605(k)).7 Further, the Commission has stated that, “[an] ‘[e]levated roadway’ is a general
descriptive term that encompasses a variety of more specific applications.” Id. (upholding the
ALJ's determination that an elevated ramp used by a front-end loader for dumping was an
“elevated roadway”). More recently, in considering the issue under section 77.1605(k), the
surface coal mine standard analogous to the surface metal/nonmetal standard at issue herein, the
Commission stated that, “an elevated area, such as a bench, is a roadway where a vehicle
commonly travels its surface during the normal mining routine.” Black Beauty Coal Co., 34
FMSHRC 1733, 1735 (Aug. 2012) (citing its previous holdings regarding elevated roadways in
Capitol Aggregates, 4 FMSHRC at 847; Burgess Mining & Constr. Corp., 3 FMSHRC 296 (Feb.
1981); and El Paso Rock Quarries, Inc., 3 FMSHRC 35, 36 (Jan. 1981)). Even temporary and
infrequently used roadways may be covered under this standard. Id. at 1738-42 (a temporary
roadway constructed solely for moving a drill rig within a few days was covered by the
standard).
The Secretary contends that he is entitled to summary decision because the bench was
used for vehicular travel, rendering it a roadway for purposes of section 56.9300(a). Sec’y Mem.
at 6. To support this contention, the Secretary cites several cases, Commission and ALJ, in
which benches were found to be elevated roadways. Sec’y Mem. at 6-7 (citing Black Beauty, 34
FMSHRC at 1735; El Paso Rock Quarries, Inc., 3 FMSHRC at 36; Foundation Coal W., Inc., 34
FMSHRC 2911, 2929 (Nov. 2012) (ALJ); Arch of Wyo., LLC, 32 FMSHRC 568, 575-76, (May
2010) (ALJ); S. & M. Constr., Inc., 19 FMSHRC 566, 576-77 (Mar. 1997) (ALJ); Peabody Coal
Co., 12 FMSHRC 109, 114-16 (Jan. 1990) (ALJ)). The Secretary takes the position that the
Commission’s roadway analysis does not rest on frequency of travel, and that infrequency does

6

Commission ALJs have consistently found drop-offs of 6 feet and less sufficient to
cause vehicular overturning or endangering persons in equipment. See, e.g., Morris Sand &
Gravel, 39 FMSHRC 1609, 1616-17 (Aug. 2017) (ALJ) (a 3- to 4-foot drop-off); Meyer
Aggregate LLC, 38 FMSHRC 2596, 2607 (Oct. 2016) (ALJ) (a 6-foot drop-off); Palmer Coking
Coal Co., 34 FMSHRC 620, 634-35 (Marc. 2012) (ALJ) (between 3- and 8-foot drop-off);
Pappy’s Sand & Gravel, 20 FMSHRC 647, 648, 651 (Jun. 1998) (ALJ) (a 6-foot drop-off).
7

30 C.F.R. § 77.1605(k) provides that “[b]erms or guards shall be provided on the outer
bank of elevated roadways.”

40 FMSHRC Page 1565

not negate the risk of vehicles overturning.8 Sec’y Mem. at 7-8 (citing Black Beauty, 34
FMSHRC at 1744; Tide Creek Rock, Inc., 18 FMSHRC 390, 417-18 (Mar. 1996) (ALJ); Arch of
Wyo., 32 FMSHRC at 576 (ALJ); Manalapan Mining Co., 16 FMSHRC 1727, 1733 (Aug. 1994)
(ALJ)). The Secretary urges application of the Commission’s “common usage” of an area and
“common-sense application of the standard to the facts” to decide whether an elevated area is a
roadway. Sec’y Mem. at 7 (citing Capital Aggregates, 4 FMSCHRC at 846-47). As such, the
Secretary asserts that because the bench was an elevated roadway, berms were required. Sec’y
Mem. at 6, 10.
Poland Sand & Gravel asserts, on the other hand, that it is entitled to summary decision
because the bench was not used regularly for travel, and usage of the bench did not rise to the
level required for a roadway. Resp’t Mem. at 1-2; Resp’t Reply at 2-3. First, the operator
contends that the principal purpose of the bench was for placement of the water clarifier, rather
than vehicular travel. Resp’t Mem. at 2; Resp’t Reply at 2 (citing Knife River Corp., 34
FMSHRC 1109, 1128 (May 2012) (ALJ). Second, it emphasizes that the bench is a dead-end
that could not be used for travel to another area of the mine. Id. Finally, the operator contends
that vehicular travel on the bench was infrequent, and that frequency of travel was essential to
the Commission’s roadway analysis. Resp’t Reply at 1-3 (citing Commissioner Duffy’s dissent
in Black Beauty, 34 FMSHRC at 1754).
It is noted that the parties argue about whether berms were required during the initial
construction of the bench. Sec’y Mem. at 3, 7; Resp’t Mem. at 1-2; see Jt. Stips. 33-35 (the 34ton excavator was used to fill the footing of the back retaining wall in addition to constructing
the bench). This argument is off-point, however, because it expands the narrow question before
me of whether the bench was a roadway during installation of the water clarifier.
Although the Secretary cites a number of cases in which the Commission has found
benches to constitute roadways, his assertion that frequency of travel is not a determinative
factor in the analysis is not consistent with Commission rulings. Sec’y Mem. at 6-7; see, e.g.,
Black Beauty, 34 FMSHRC at 1735 (“an elevated area, such as a bench, is a roadway where a
vehicle commonly travels its surface during the normal mining routine.”) (emphasis added);
Capitol Aggregates, 4 FMSHRC at 846-47 (an elevated ramp, which was regularly used by a
front-end loader for dumping, was found to be an elevated roadway) (emphasis added); Burgess
Mining & Constr. Corp., 3 FMSHRC at 296 (a bridge, used during the normal mining routine,
was found to be an elevated roadway) (emphasis added); El Paso Rock Quarries, Inc., 3
FMSHRC at 35-36 (a routinely used haulage road was found to be an elevated roadway)
(emphasis added). In these cases, not only did the Commission consider frequency of travel, but
also the common usage of the areas, and it took a common sense approach to applying the
standard to the facts in deciding whether roadways existed. As the Secretary contends, however,
travel infrequency does not negate the presence of the hazard. Black Beauty, 34 FMSHRC at
1741-42.

8

By the Secretary’s reasoning, frequency of travel is appropriately considered when
assessing the penalty.

40 FMSHRC Page 1566

Poland Sand & Gravel’s reliance on the dissent in Black Beauty and the ALJ’s ruling in
Knife River is misplaced. In Black Beauty, the majority explained that “the presence of a rubbertired vehicle on the bench, by itself, did not mean that the bench was a ‘roadway,’” but left open
the possibility that its presence may be an indicium of whether a roadway existed. Black Beauty,
34 FMSHRC at 1735. The dissent pointed out that the traveling of a rubber-tired vehicle did not
transform the bench into a roadway. Id. at 1754. Here, multiple mobile vehicles - - the water
clarifier, itself, on a wheeled chassis and a wheeled tow dolly, an excavator, and a backhoe - traveled on the bench to install the clarifier. Clearly, in this case, the analysis involves
consideration of several vehicles, operating together over the course of three days, to accomplish
a single one-time task. Ultimately, as the majority in Black Beauty has instructed, frequency is
but one factor to consider, and how the area was used looms large. Id. at 1735.
Similarly, Knife River, finding that portable truck scales did not constitute a roadway,
was decided on its own set of facts that are not similar to the facts at hand. Knife River, 34
FMSHRC at 1128, 1134. 9 Furthermore, Knife River predates the Commission’s decision in
Black Beauty by a few months, and does not employ the Commission’s standard.
To recap, in Black Beauty, the Commission reiterated its definition of a roadway, set
forth in earlier decisions, that “an elevated area, such as a bench, is a roadway where a vehicle
commonly travels its surface during the normal mining routine.” Black Beauty, 34 FMSHRC at
1735. In that case, the operator received a citation during a dragline move.10 Dragline moves
occurred every seven to ten days at that mine, and it was routine for a rubber-tired backhoe to
accompany the dragline. Id. at 1736. For that specific move, the operator closed a haulage road
so that the dragline could be moved on that road to another area of the mine. Id. To prepare for
the move, the operator removed the berms along the haulage road and closed the area to traffic.
Id. at 1734, 36. During the move, however, the dragline had an electrical malfunction and a
service truck was driven along the bench in order to service it. Id. at 1734. Finding that it was
common for service trucks to attend to draglines when issues arose during moves, the
Commission concluded that “the service truck’s use of the bench in this instance illustrates that
the character of the bench was unchanged. Therefore, the evidence demonstrates that the bench
remained a ‘roadway’ during the dragline move.” Id. at 1736. The Seventh Circuit affirmed the
Commission’s determination that the bench was a roadway, and that usage is at the heart of the

9

Judge McCarthy identified the unique facts and circumstances present in the case, such
as the purpose for using the scales, the controlled environment when trucks drove onto the
scales, the limited access to the area, and the speed at which the trucks traveled on the portable
truck scales.
10

A dragline is “[a] type of excavating equipment that casts a rope-hung bucket a
considerable distance; collects the dug material by pulling the bucket towards itself on the
ground with a second rope; elevates the bucket; and dumps the material on a spoil bank, in a
hopper, or on a pile.” American Geological Institute, Dictionary of Mining, Mineral and Related
Terms 167 (2d ed. 1997).

40 FMSHRC Page 1567

roadway analysis. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611, 615 (7th Cir.
2014).11
The parties stipulated that water clarifiers are not regularly moved at this mine.
Jt. Stip. 59. Although this case does not involve travel regularity as in Black Beauty, these fairly
unique facts sufficiently indicate that the elevated bench was used as a roadway for the three
days required to install the water clarifier. Two substantial vehicles, the mini excavator and the
mobile water clarifier, traveled onto the bench to situate the water clarifier and, once it was in
position, a backhoe was driven onto the bench to finalize its instillation. This vehicular travel,
on the 6-8 foot elevated span without berms, exposed miners to a drop-off sufficient to result in
overturning and serious to fatal injuries.
Moreover, a broad reading of section 56.9300(a) is consistent with the protective goals of
the Mine Act and Commission precedent. To find that this elevated bench was not a roadway
during installation of the water clarifier would render the miners performing the excavator/tow
dolly/backhoe installation totally unprotected, since no other standard adequately addresses the
safety hazard. As such, a common-sense application of the standard to the facts leads to a
finding that this elevated bench was used as a roadway for the purpose of installing the water
clarifier.
Having found that the bench was a roadway during installation, I also find that there was
a sufficient drop-off for a vehicle to overturn, and that there were no protective berms along the
edge of the bench when the installation took place to protect the miners from death or serious
injury. Accordingly, I find that Poland Sand & Gravel violated section 56.9300(a), and that the
Secretary is entitled to summary decision as a matter of law.
B. Penalty
While the Secretary has proposed a civil penalty of $116.00 by application of his Part 100
penalty regulations, the judge must independently determine the appropriate assessment by
proper consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C.
§ 820(i). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th
Cir. 1984). These criteria are: the operator’s history of previous violations, the appropriateness
of the penalty to the size of the business of the operator charged, whether the operator was
negligent, the effect of the penalty on the operator’s ability to continue in business, the gravity of
the violation, and the demonstrated good faith of the operator in achieving rapid compliance after
notification of the violation. 30 U.S.C. § 820(i).
Applying the Sellersburg criteria, and based upon a review of MSHA’s online records, I
find that Poland Sand & Gravel is a small operator, with no prior violations of section
56.9300(a), and an overall violation history that is not an aggravating factor in assessing an
appropriate penalty. Jt. Stip. 3. As stipulated, the proposed civil penalty will not affect Poland
Sand & Gravel’s ability to continue in business. Jt. Stip. 8. I also find that Poland Sand &
11

Black Beauty Coal Company changed its name to Peabody Midwest Mining, LLC,
before the 7th Circuit considered the appeal of the Commission’s Black Beauty decision.

40 FMSHRC Page 1568

Gravel demonstrated good faith in achieving rapid compliance after notification of the violation.
The remaining criteria involve consideration of the gravity of the violation and Poland Sand &
Gravel’s negligence in committing it. This is a serious violation, although limited in duration,
given the lack of overturn protection for the heavy mobile equipment used to install the water
clarifier, and I find, based on the obviousness of needed protection from the drop-off and
exposure to the nearby pond at ground level, that Poland Sand & Gravel was moderately
negligent in committing it. Therefore, I find that a penalty of $116.00, as proposed by the
Secretary, is appropriate.
ORDER
ACCORDINGLY, the Secretary’s Cross-Motion for Summary Decision is GRANTED,
Respondent’s Motion for Summary Decision is DENIED, and it is ORDERED that Poland Sand
& Gravel, LLC, PAY a civil penalty of $116.00 within 30 days of the date of this Decision.12

/s/ Jacqueline R. Bulluck
Jacqueline R. Bulluck
Administrative Law Judge

Distribution:
Andrew Karonis, Senior Trial Attorney, U.S. Department of Labor, Office of the Solicitor, 201
Varick Street, Room 983, New York, NY 10014
Brian T. Yesko, Conference and Litigation Representative, U.S. Department of Labor, MSHA,
178 Thorn Hill Road, Suite 100, Warrendale, PA 15086
Roger S. Rommel, Poland Sand & Gravel, LLC, P.O. Box 83, Poland, NY 13431

/adh

12

Payment should be sent to: Mine Safety and Health Administration, U.S. Department
of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include docket
number and AC number.

40 FMSHRC Page 1569

ADMINISTRATIVE LAW JUDGE ORDERS

40 FMSHRC Page 1570

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, NW, SUITE 520N
WASHINGTON, DC 20004

November 8, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JASON WYLIE,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. PENN 2018-0158-DM
MSHA No. NE MD 2018-01

v.
ALLEGHENY MINERAL
CORPORATION,
Respondent.

Mine: Bison Mine
Mine ID: 36-10107
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 2018-0275

v.
ALLEGHENY MINERAL
CORPORATION,
Respondent.

Mine: Bison Mine
Mine ID: 36-10107

ORDER DENYING SECRETARY’S MOTION
FOR RECONSIDERATION
Before: Judge Feldman
These discrimination and civil penalty matters concern a discrimination complaint filed
pursuant to section 105(c)(2) of the Federal Mine Safety and Health Act of 1977, as amended,
30 U.S.C. § 815(c)(2) (the “Mine Act” or “Act”), by the Secretary of Labor (the “Secretary”) on
behalf of Jason Wylie against the Allegheny Mineral Corporation (“Allegheny”). Before me is
the Secretary’s October 26, 2018, Motion to Reconsider the October 23, 2018, Severance Order.
The Severance Order established and severed newly created Docket No. PENN 2018-0275
concerning the Secretary’s civil penalty proceeding from Docket No. PENN 2018-0158-DM that
is limited to issues concerning the merits of Wylie’s discrimination complaint and his claim for
relief. Severance Order, 40 FMSHRC ___ at 4, No. PENN 2018-0158-DM (Oct. 23, 2018).
On November 5, 2018, Allegheny filed an opposition to the Secretary’s request for
reconsideration.

40 FMSHRC Page 1571

I.

Discussion and Evaluation

The Severance Order is predicated on the Secretary’s representation that the parties,
including Wylie1, had verbally agreed on settlement terms regarding both the relief to be
awarded to Wylie and the amount of the civil penalty to be paid in this matter. However, the
Secretary has, to date, prevented Wylie’s receipt of his agreed upon monetary settlement relief
by opposing Wylie’s settlement terms solely on the basis of the Secretary’s insistence that the
amount of Wylie’s relief must not be kept confidential.2
Wylie’s desire to settle is well documented. In this regard, in an email dated September
28, 2018, Wylie advised the Commission:
This settlement proceedings [sic] is getting way out of control now. I agreed to
a[n] amount and now feel like it has stalled out to nothing. I have tried to move on
but [it is getting] ridiculous. When I agreed to settle I was and am ready to move
on but have yet to get anywhere as far as finalizing or receiving my settlement. I
don’t want to go to court and I just want to move on. It has been long enough and
for the [sic] MSHA to fight the court and without my settlement is absurd. Thank
you for reading my email I just want my thoughts on the matter known.
Resp. to Sec’y’s Mot. to Reconsider, Ex. C at p. 1, (Nov. 5, 2018). Wylie’s email was
sent to Nicholas Desai, the law clerk of Judge Paez, who previously had been assigned to
this case.
The Severance Order is consistent with the Commission’s decisions in Sec’y of Labor
o/b/o Clemmie Callahan v. Hubb Corp., 20 FMSHRC 832 (Aug. 1998) (“Callahan”), and Sec’y
of Labor o/b/o Hale v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986) (“Hale”). In Callahan the
Commission distinguished a discrimination complainant’s interest in settling his complaint in a
105(c)(2) proceeding from the Secretary’s interest in establishing a violation of section 105(c) in
a pertinent civil penalty proceeding. Callahan, 20 FMSHRC at 837-39. In other words, Wylie’s
settlement with Allegheny would not preclude the Secretary from prosecuting its civil penalty
case.
1

Commission Rule 4(a) states, in pertinent part, “[i]n a proceeding instituted by the
Secretary under section 105(c)(2) of the Act . . . the complainant on whose behalf the Secretary
has filed the complaint is a party and may present additional information on his own behalf.” 29
C.F.R. § 2700.4(a) (emphasis added).
2

In the interest of clarifying this matter, Allegheny and Wylie’s settlement terms only
concern confidentiality with respect to the specific monetary amounts of Wylie’s relief. This can
be accomplished through a settlement motion that references an addendum containing the
specific monetary terms of Wylie’s relief, which will be placed under seal regardless of whether
the Motion to Approve Settlement is ultimately granted or denied. The confidentiality of Wylie’s
monetary relief would not preclude posting that is commonly required by the Commission.
Finally, while the amount of Wylie’s relief may remain confidential, a decision approving
settlement provides public notice of the disposition of Wylie’s discrimination complaint.

40 FMSHRC Page 1572

Obviously, a miner should not be made worse off than he otherwise would have been
because he is pursuing his rights in a 105(c)(2) proceeding brought by the Secretary rather than
in a 105(c)(3) proceeding brought by the miner on his own behalf. See Sec’y of Labor o/b/o
Rieke v. Akzo Nobel Salt Inc., 19 FMSHRC 1254, 1259 (July 1997). In Hale, the Commission, in
essence, noted that it eschews prejudicing a complainant as a consequence of actions taken by
the Secretary in a 105(c)(2) proceeding. See Hale, 8 FMSHRC at 908. Hale concerned the
Secretary’s inadvertent late initiation of a 105(c)(2) discrimination proceeding on Hale’s behalf.
Id. In contrast, this matter concerns the detrimental delay in Wylie’s receipt of the remedial relief
that would presumably make Wylie whole that has been brought about by the Secretary’s
conscious litigation posture.
Finally, Commission Rule 1(b) provides, “on any procedural question not regulated by
the Act . . . the Commission and its Judges shall be guided so far as practicable by the Federal
Rules of Civil Procedure . . . .” 29 C.F.R. § 2700.1(b). Rule 42 of the Federal Rules of Civil
Procedure authorizes a judge to issue orders avoiding unnecessary delay or prejudice, or such
orders that expedite and/or economize proceedings. Fed. R. Civ. P. 42(a)(3), 42(b). As the
Severance Order is consistent with both the Federal Rules of Civil Procedure and relevant
Commission case law, IT IS ORDERED that the Secretary’s Motion for Reconsideration of the
Severance Order IS DENIED.
II.

Procedural Framework
a. Discrimination Proceeding in PENN 2018-0158-DM

I construe Allegheny’s opposition as reflecting a continuing interest in settlement.
Consequently, Allegheny may wish to formally submit, in writing, a motion for approval of
settlement that disposes of the issue of Wylie’s relief. Any such motion must include the total
amount of Wylie’s monetary relief as well as an explanation of the calculation upon which the
monetary relief is based.
Any settlement motion filed by Allegheny must be filed within 14 days of the date of this
Order.3 Alternatively, if Allegheny is no longer interested in pursuing settlement of Wylie’s
relief, it should so advise within 14 days of the date of this Order. In such event, the
discrimination and civil penalty matters will be scheduled for hearing.
Any opposition to Allegheny’s settlement motion must be filed by the Secretary within
10 days thereafter. The opposition should specify why the remedial relief in the settlement
motion is objectionable. The opposition should further specify the alternative relief sought. The
Secretary should support any objection to the remedial relief contained in Allegheny’s motion to
approve settlement with a sworn affidavit by Wylie specifically stating the basis for his
objection.

3

This Order supersedes the filing deadlines contained in the October 23, 2018, Severance

Order.

40 FMSHRC Page 1573

Finally, Section 105(c)(2) of the Act authorizes the Commission to order such relief in a
discrimination proceeding that “the Commission deems appropriate.” 30 U.S.C. § 815(c)(2).
Consequently, any opposition filed by the Secretary should address whether the question of
confidentiality is a judiciable issue rather than a matter committed to a Judge’s reasonable
exercise of discretion.
b. Civil Penalty Proceeding in PENN 2018-0275
The Secretary has proposed a civil penalty of $30,000.00 for Allegheny’s alleged
violation of section 105(c)(1) of the act.4 30 U.S.C. § 815(c)(1). Allegheny and the Secretary
apparently previously had reached an informal settlement agreement with respect to the civil
penalty to be imposed. If the parties continue to agree on this matter, a motion for approval of
settlement must be submitted within 14 days of the date of this Order.
If Allegheny and Wylie agree to settlement terms with respect to relief, but Allegheny
and the Secretary cannot agree on the issue of civil penalty, the civil penalty matter will be
scheduled for adjudication. Any agreement between Allegheny and Wylie, in essence, constitutes
Allegheny’s withdrawal of its contest of the fact of the violation of section 105(c)(1) that can be
considered solely for the purposes of any relevant proceedings subsequently brought under the
Mine Act. Consequently, any adjudication under such circumstances would be strictly limited to
the issue of the appropriate civil penalty.5

4

Section 105(c)(1) provides in pertinent part:

No person shall discharge or in any manner discriminate against or cause
to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner … in any … mine subject to this Act
because such miner … has filed or made a complaint under or related to this Act,
including a complaint notifying the operator or the operator's agent, or the
representative of the miners at the … mine of an alleged danger or safety or health
violation in a … mine, … or because of the exercise by such miner … of any
statutory right afforded by this Act.
30 U.S.C. § 815(c)(1)
5

In Callahan, the 105(c)(2) complainant sought dismissal after admitting on the record
that “there has been no violation of section [105(c)(1)] of the [A]ct[.]” 20 FMSHRC at 844.
Callahan’s admission of no violation did not preclude the Secretary from litigating the fact of the
violation is a separate civil penalty proceeding. Unlike Callahan, any settlement with respect to
Wylie’s relief would remove the fact of the violation as an outstanding issue.

40 FMSHRC Page 1574

The Commission long ago noted that it is not bound by the method of computation
utilized by the Secretary to arrive at his proposed civil penalty. Sec’y of Labor v. Co-Op Mining
Co., 2 FMSHRC 784, 785 (April 1980). Thus, the authority of the Commission to assess civil
penalties de novo for 105(c)(1) violations of the Act is well established. Sec’y of Labor v.
Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000). An issue in the civil penalty
adjudication is whether the Secretary has abused his discretion by unreasonably delaying Wylie’s
receipt of relief in contravention of the remedial goals of the antidiscrimination provisions of
section 105(c) of the Act. If so, the dispositive question is whether such delay should be
considered as an aggravating factor that warrants a reduction in the Secretary’s proposed civil
penalty.
Finally, the record amply reflects the issues in this case. Enough is enough.
Consequently, the Secretary’s November 6, 2018, reply to Allegheny’s response to the
Secretary’s motion for reconsideration, and any response by Allegheny thereto, have not been
authorized and will be given no consideration.
Any procedural questions concerning the matters discussed herein should be directed to
my Law Clerk, Noah Meyer, at nmeyer@fmshrc.gov or (202) 233-4010.

/s/ Jerold Feldman
Jerold Feldman
Administrative Law Judge

Distribution:
Oscar L. Hampton III, Regional Solicitor, U.S. Department of Labor, Office of the Solicitor,
Suite 630E, The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106
hampton.oscar@dol.gov
Matthew R. Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, Suite 630E,
The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106
epstein.matthew.r@dol.gov
Jason Wylie, 604 Vanadium Road, Bridgeville, PA 15017 airborne_medic12@yahoo.com
Patrick W. Dennison, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500,
401 Liberty Avenue, Pittsburgh, PA 15222 pwdennison@jacksonkelly.com
/NM

40 FMSHRC Page 1575

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVE., N.W., SUITE 520N
WASHINGTON, DC 20004-1710
TELEPHONE: 202-434-9956 / FAX: 202-434-9949

November 30, 2018
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, on behalf of
JUSTIN HICKMAN,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. LAKE 2018-0387-DM
MSHA Case No. NC-MD-18-06

v.
HUBER CARBONATES, LLC,
Respondent.

Mine: Quincy Plant
Mine ID: 11-02627

ORDER GRANTING RESPONDENT’S MOTION FOR DECLARATORY JUDGMENT
Before:

Judge Priscilla M. Rae
INTRODUCTION

This proceeding is before me upon a complaint of discrimination under section 105(c)(2)
of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(2) (“Mine
Act”). A hearing is scheduled for February 19-20, 2019 in a location to be determined.
Huber Carbonates, LLC (“Huber” or “Respondent”) has filed a motion for Declaratory
Judgment seeking the return of an attorney-client privileged email communication (and all copies
thereof) obtained by the Secretary and a bar on the use of this email by the Secretary in this or
any other proceeding under the Mine Act. The Secretary has filed a response in opposition to this
motion.
The issue of whether the document is privileged was decided, in the affirmative, through
an in camera review by Judge David Simonton on November 16, 2018. At issue presently is
whether Respondent waived that privilege.
STATEMENT OF THE FACTS
On August 8, 2018, outside counsel for Huber sent an email to Respondent’s in-house
counsel and members of management. The email contained legal advice concerning the instant
case, as well as other legal matters. The words “ATTORNEY-CLIENT PRIVILEGED
COMMUNICATION” were included in the subject line of the original email and a footer within
the email further declared the contents as privileged and instructed unauthorized receivers on the
means to return the email. Later that day, a member of Huber management included an EH&S
Coordinator on the email chain. The EH&S Coordinator had information about the original email

40 FMSHRC Page 1576

and was needed to analyze the legal issues being discussed. Respondent’s Motion for
Declaratory J. (“Resp. Mot.”) at 2-3.
Respondent later learned that, on August 16, 2018, the EH&S Coordinator had forwarded
this email chain, via blind carbon copy (“bcc”), to a Plant Engineer being discussed in the chain.
On August 16, 2018, the Plant Engineer deleted the “ATTORNEY-CLIENT PRIVILEGED
COMMUNICATION” notation in the subject line and forwarded the email to an MSHA
inspector. Resp. Mot. at 3.
On September 6, 2018, counsel for Respondent contacted counsel for MSHA, via phone,
to discuss the August 8, 2018 email communication and the subsequent events. In a written
response, counsel for MSHA stated that the documents were protected by attorney-client
privilege. Resp. Mot. at 4.
On October 3, 2018, counsel for Huber sent a written request to counsel for MSHA, in
which it demanded that the August 8, 2018 email correspondence be returned to Huber and
stated the information contained therein could not be used by MSHA in the Plant Engineer’s
105(c) discrimination claim filed on September 27, 2018. Counsel for MSHA refused this
demand in his October 12, 2018 response. Resp. Mot. at 5.
On October 18, 2018, counsel for Respondent filed a motion requesting the court to issue
Declaratory Judgment that (1) the email correspondence was privileged, (2) all copies of the
email correspondence be returned to Huber or destroyed, and (3) MSHA be barred from using
the email correspondence in this and any other future proceeding against Huber instituted by
MSHA or the Secretary. Resp. Mot. at 1, 12.
On November 5, 2018, the Secretary filed an opposition to Respondent’s motion for
Declaratory Judgment and requested a hearing in order to determine whether the document was
protected by the attorney-client privilege and, if so, whether Respondent waived that privilege.1
On November 13, 2018, Judge Rae referred the motion and opposition to Judge Simonton and
requested that he conduct an in camera review of the email chain in order to determine whether
attorney-client privilege applied. Secretary’s Opposition to Resp. Mot. (“Sec’y Opp.) at 1-2.
On November 16, 2018, Judge Simonton held that the contents of the email chain were
indeed protected by the attorney-client privilege. He returned the case to Judge Rae for further
deliberations on whether Huber waived this privilege. In Camera Review Holding that
Subsequent Email Chain is Protected by Attorney-Client Privilege (“In Camera Rev.”) at 1, 4.
DISPOSITION
As noted above, at issue is whether Huber waived the attorney-client privilege which
protected the contents of the email chain which originated on August 8, 2018. Each party focuses
on two different events in which Respondent could have waived the privilege. The Secretary
1

I have determined the facts were sufficiently pleaded in the parties’ motions and, as
such, are not at issue. For this reason, the questions of attorney-client privilege and waiver are
solely matters of interpretation of law. Thus, no hearing is required.

40 FMSHRC Page 1577

argues the privilege was waived on August 8, 2018 when a member of Huber management
included the EH&S Coordinator on the email chain. Respondent argues it did not waive the
privilege when the EH&S Coordinator forwarded the email on August 16, 2018 to the Plant
Engineer, by bcc, because the Coordinator did not have the power to waive attorney-client
privilege.
I find Respondent did not waive the attorney-client privilege when including the EH&S
Coordinator on the email chain, neither did it waive the privilege when the EH&S Coordinator
forwarded the email, because the EH&S Coordinator did not have the power to waive the
attorney-client privilege.
i.

Respondent did not waive the attorney-client privilege when a member of management
included the EH&S Coordinator in the email chain, because the latter needed to know
the information.

In a corporation, the attorney-client privilege attaches to both the corporation and individuals
within it. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985).
Traditionally, the privilege only existed in communications between top-level management and
counsel. Radiant Burners, Inc. v. Am. Gas Ass’n, 320 F.2d 314, 323-24 (7th Cir. 1963) (the court
applied the “control group” test, which only protected communications of top-level management,
defined as the corporate client, and counsel). However, the Supreme Court rejected this test in
Upjohn Co. v. United States and established a balancing test where the attorney-client privilege
applies to communications between a company employee and an attorney if:
(1) the information communicated is necessary to provide legal advice to the corporation or
was ordered to be communicated by superior officers;
(2) the information was not available to counsel from “control group” management already;
(3) the communications concerned matters within the scope of the employee’s duties;
(4) the employee was aware that they were being questioned so the corporation could receive
legal advice; and
(5) the communications were considered confidential when made and kept confidential.
Upjohn Co. v. United States, 449 U.S. 383, 394-95 (1981). When these factors are met, a
lower-level employee is considered part of the corporate client and communications involved are
privileged.
In applying these factors to the inclusion of the EH&S Coordinator on the email chain, it
is clear that the EH&S Coordinator, though a lower-level employee, constituted part of the
corporate client. Hence, his inclusion on the email chain did not disrupt or waive the attorneyclient privilege.

40 FMSHRC Page 1578

As Respondent noted in their motion and as affirmed by Judge Simonton, the email was sent
for the purpose of obtaining legal advice. The EH&S Coordinator was included in the chain by a
superior officer because he “had information about the contents of the original email
communication and his assistance was needed to analyze some of the legal issues that were being
discussed.” Resp. Mot. at 3. Lastly, the EH&S Coordinator would have known both this purpose
and the confidential nature of the communications due to the contents of the email and the
“ATTORNEY-CLIENT PRIVILEGED INFORMATION” notation in the subject line. Indeed,
the fact that the EH&S Coordinator forwarded the email to the Plant Engineer via bcc, a means
which would conceal the transfer of information, indicated his knowledge of the confidentiality
of the communication.
The Secretary argues that the privilege did not extend to the EH&S Coordinator, because he
did not “need to know” the information contained in the email chain. Scholtisek v. Eldre Corp.,
441 F. Supp. 2d 459, 464 (W.D.N.Y. 2006) (holding that the disclosure of information that an
employee did not “need to know” to perform his responsibilities removed that information from
the attorney-client privilege). In Scholtisek, the court held that dissemination of privileged
information to lower-level employees destroys the attorney-client privilege if the employee did
not “need to know” the information in order to perform their job effectively or make decisions
related to the subject matter of the communication. This “need to know” standard “must be
analyzed from two perspectives: (1) the role in the corporation of the employee or agent who
receives the communication; and (2) the nature of the communication, that is, whether it
necessarily incorporates legal advice.” Scholtisek, 441 F. Supp. 2d at 464.
The Respondent has adequately articulated that the EH&S Coordinator was included in the
privileged email so that he could give relevant information which pertained to the
communication. The EH&S Coordinator needed to know the information provided by counsel to
then give context required for the corporate client to obtain legal advice. The inclusion of a
specific lower-level employee for the purpose of receiving his particular knowledge about the
contents of the original email stands in contrast to the case cited by the Secretary in which
confidential communications were widely distributed to lower-level employees. Smithkline
Beecham Corp. v. Apotex Corp., 194 F.R.D. 624 (N.D. Ill. 2000).
Thus, I find that Respondent did not waive the attorney-client privilege and the privileged
communications retained the attorney-client privilege when a member of Huber management
included the EH&S Coordinator on the email chain.
ii.

The attorney-client privilege was not waived when the EH&S Coordinator forwarded the
email to the Plant Engineer, because he did not have the power to waive the privilege.

The power to waive the attorney-client privilege held by a corporation rests with the
corporation’s management and is normally exercised by its officers and directors. Commodity
Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348 (1985). A lower-level employee has
no power to waive the privilege unless she is given the authority to do so by one who holds the
privilege (i.e., corporate management). U.S. v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996);
Alexander v. F.B.I., 198 F.R.D. 306 (D.D.C. 2000) (holding that privilege was not waived when
a lower-level employee disclosed privileged information because the officers and directors of the

40 FMSHRC Page 1579

corporation had not authorized the lower-level employee to waive the privilege); Bus. Integration
Servs. v. AT&T, 251 F.R.D. 121, 125-27 (S.D.N.Y. 2008), aff’d, No. 06 Civ. 1863(JGK), 2008
WL 5159781 (S.D.N.Y. Dec. 9, 2008) (a non-executive manager lacked authority to waive the
attorney-client privilege). Furthermore, employees must generally keep their employer’s
confidences. Chen, 99 F. 3d at 1502.
There is no indication in the record that the EH&S Coordinator was given authority by
the corporate management to waive the attorney-client privilege. To the contrary, the email
communicated that it was protected by attorney-client privilege and “made clear [it] was not
intended for transmission to or receipt by any unauthorized persons….” Resp. Mot. at 2. Without
this authority, he lacked the power to waive the attorney-client privilege and the document
remained privileged when he inappropriately forwarded it to the Plant Engineer.
The Secretary relies heavily on the holding in Jonathan Corp. v. Prime Computer in
arguing that the EH&S Coordinator both held the privilege and the power to waive that privilege.
In Jonathan, Prime Computer provided attorney-client privileged communication to an employee
without indicating that the communication was confidential or privileged. The employee, who
was the sole representative of Prime Computer to Jonathan Corp., disclosed the privileged
communication in negotiating with Jonathan Corp. This disclosure occurred in the ordinary
course of his business with Jonathan Corp. Subsequently, Prime Computer’s corporate officers
made no attempt to recover the privileged information until two years after the disclosure was
made. Jonathan Corp. v. Prime Computer, Inc., 114 F.R.D. 693, 695 (E.D. Va. 1987). In
determining whether this communication retained its privileged status, the court held that Prime
Computer had waived the privilege when it failed to designate the communication as privileged,
allowed the employee to disclose it in the ordinary course of business, and failed to recall the
communication following its disclosure. Jonathan Corp., 114 F.R.D. at 699.
The facts in the instant case are easily distinguished from Jonathan. Huber clearly
communicated to the EH&S Coordinator that the contents of the email chain were privileged in
the subject line notation, as well as the footer of the email. There is no evidence that the EH&S
Coordinator forwarded the email as a means of communicating in the ordinary course of
business. Instead, his use of blind carbon copy via email seems to indicate he knew the
forwarding of a privileged email was irregular. Lastly, there is ample evidence to indicate that
Huber, unlike Prime Computer, swiftly attempted to retrieve the privileged communication after
learning of its disclosure. As noted, counsel for Huber contacted counsel for MSHA and
requested the return of the communication. When that request was rejected, Huber sought the
court’s review.
For these reasons, I find that the EH&S Coordinator had no power to waive the attorneyclient privilege because he had not been granted the authority from Huber management to do so.
Thus, the communications retained their privileged status when he forwarded them to the Plant
Engineer.

40 FMSHRC Page 1580

Accordingly, Respondent’s Motion for Declaratory Judgment is GRANTED in part. The
Secretary is ORDERED to return the August 8, 2018 email (and subsequent versions) held by
the Counsel for Trial Litigation and ensure all other copies, or emails containing a copy of the
privileged email, are destroyed.2

/s/ Priscilla M. Rae
Priscilla M. Rae
Administrative Law Judge

Distribution:
Jason M. Nutzman, Dinsmore & Shohl LLP, 707 Virginia Street East, Suite 1300, Charleston,
WV 25301
Justin Hickman, 14025 Turkey Run Ct., New London, MO 63459
Jing Zhang, U.S. Department of Labor, Office of the Solicitor, 230 South Dearborn Street, Room
844, Chicago, IL 60604
Sarah Roberts, U.S. Department of Labor, Office of the Solicitor, 201 12th Street South, Suite
401, Arlington, VA 22202

2

In Respondent’s Motion for Declaratory Judgment, Huber requested an order preventing
the use of the contents of the August 8, 2018 email in any litigation, present or future, instituted
by MSHA or the Secretary against Huber. In view of the ruling that the privileged
communication be return and that copies be destroyed, it is unnecessary to address that portion of
Respondent’s motion.

40 FMSHRC Page 1581

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
1331 PENNSYLVANIA AVENUE, N.W., SUITE 520N
WASHINGTON, D.C. 20004

December 14, 2018
MARSHALL JUSTICE,
Complainant,
v.
ROCKWELL MINING, LLC,
Respondent.

DISCRIMINATION PROCEEDING
Docket No. WEVA 2018-697-D
PINE CD 2018-05
Mine: Gateway Eagle Mine
Mine ID 46-06618

ORDER DENYING RESPONDENT’S MOTION TO DISMISS
This discrimination proceeding is before me pursuant to section 105(c)(3) of the Federal
Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(c)(3). On September 21,
2018, the Federal Mine Safety and Health Review Commission (“Commission”) received a
complaint of interference filed by Marshall Justice (“Complainant”) against Rockwell Mining,
LLC (“Respondent”). In his complaint, Justice alleges that Rockwell Mining has interfered with
his rights as a non-employee miners’ representative to travel on section 103(f) “walkarounds”
and to inspect the mine map.1 After investigating these claims, MSHA chose not to bring a
section 105(c)(2) claim against Rockwell Mining. Justice is proceeding pro se. Respondent filed
its Motion to Dismiss on October 22, 2018. Thereafter, on October 29, 2018, Chief
Administrative Law Judge Robert J. Lesnick assigned me this case. On November 1, 2018, the
Commission received Justice’s Memorandum of Support of Claims Marshall Justice Motion to
Proceed with 105(c) (hereinafter “Opposition”), in which, among other things, Justice opposes
Rockwell Mining’s Motion to Dismiss in the course of 113 pages, including exhibits.
The Commission strongly discourages the disposal of pro se discrimination cases on the
face of the complaint. See Perry v. Phelps Dodge Morenci, Inc., 19 FMSHRC 1918, 1920 (Nov.
1996) (“In cases brought by pro se complainants, motions to dismiss for failure to state a claim
should rarely be granted. Instead, in such a case, a judge should ensure that he informs himself of
all available facts relevant to his decision, including the complainant’s version of those facts”)
(citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). I construe Rockwell Mining’s Motion to

1

On July 6, 2018, Justice submitted the following complaint to MSHA: “Frank Javins
refused to provide [the] mine map as requested by Complainant. Respondent has failed to notify
Complainant, who is a miner’s representative for Mine No. 4606618 under the Mine Act, with
[the] mandatory opportunity to exercise his walkaround rights on MSHA inspections conducted
during the day shift repeatedly during the past year, and including several times as indicated on
the attached inspection records, during the 30 days prior to the filing of this Complaint[.]
Complainant seeks cessation of these Mine Act violations, and award of costs & fees.” (Compl.
at 8.)

40 FMSHRC Page 1582

Dismiss as a Motion for Summary Decision.2 Summary decision is proper only when the entire
record demonstrates that “there is no genuine issue as to any material fact” and that “the moving
party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b); see Mo.
Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981). Commission Judges should not grant motions
for summary decision “unless the entire record shows a right to judgment with such clarity as to
leave no room for controversy and establishes affirmatively that the adverse party cannot prevail
under any circumstances.” KenAmerican Res., Inc., 38 FMSHRC 1943, 1947 (Aug. 2016)
(quoting Campbell v. Hewitt, Coleman & Assocs., Inc., 21 F.3d 52, 55 (4th Cir. 1994)); but see
Scott v. Harris, 550 U.S. 372, 380 (2007) (holding that there is no genuine issue for trial unless a
rational trier of fact could find for the nonmoving party).
This proceeding is not isolated, as Justice has filed a series of complaints against the
operator of the Gateway Eagle Mine. In July 2016, Justice filed a complaint with the Mine Safety
and Health Administration (“MSHA”) alleging that Rockwell Mining interfered with his exercise
of rights as a miners’ representative and discriminated against Justice by forcing him to work in
unsafe conditions. The Secretary pursued part of Justice’s interference claim by filing a section
105(c)(2) case against Rockwell Mining in Docket No. WEVA 2018-10-D. At the same time,
Justice filed a complaint under section 105(c)(3) to pursue the claims the Secretary did not take.
Rockwell Mining withdrew its contest in the Secretary’s case and paid a civil penalty of
$3,700.00 on April 13, 2018. Justice’s separate proceeding, Docket No. WEVA 2018-48-D,
remains in dispute and is set for hearing in January 2019. In that matter, Justice has alleged that
Rockwell Mining violated section 105(d) based on Justice’s refusal to operate a piece of mining
machinery because of safety concerns. Docket No. WEVA 2018-48-D stems from a complaint
filed with MSHA on July 20, 2016. Furthermore, Justice has retained counsel for Docket No.
WEVA 2018-48-D, whereas here he is proceeding pro se.
I. BACKGROUND AND FACTUAL ASSERTIONS
When Marshall Justice was previously employed at the Gateway Eagle Mine, which
Rockwell Mining now operates, two or more of the miners there appointed him as their miners’
representative. (Mot. at 1.) Although Justice is not currently employed at the mine, he remains a
non-employee miners’ representative. As such, Justice enjoys certain rights under the Mine Act,
among them the right to inspect mine maps and the right to be given the opportunity to
accompany MSHA inspectors during physical inspections at the mine. See 30 U.S.C. § 813(f). In
response to an MSHA interference investigation, Rockwell Mining agreed on March 31, 2017, to
telephone Justice whenever an MSHA inspector is on the premises during the evening shift.
(Mot. Ex. B at 2.) Rockwell Mining’s logs indicate that, from May 10, 2017, through August 13,
2018, Rockwell Mining telephoned Justice 22 times to alert him to the presence of an MSHA
inspector, but Justice came to the mine only once, on July 12, 2017. (Mot. Ex. H at 1–3.)
2

The Commission’s procedural rules do not expressly contemplate a motion to dismiss
for failure to state a claim, but Commission Judges addressing such motions have looked to
Federal Rules of Civil Procedure 12(b)(6) and treated such motions as motions for summary
decision. See, e.g., Sec’y on behalf of Chaparro v. Comunidad Argricola Bianci, Inc., 32
FMSHRC 1517, 1518 (Oct. 2010) (ALJ); see also 29 C.F.R. § 2700.1(b) (“the Commission and
its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”).

40 FMSHRC Page 1583

On April 10, 2018, Justice spoke by telephone to shift foreman Frank Javins and made
two requests: (1) to be sent an up-to-date copy of the mine map and (2) to be alerted via
telephone when MSHA inspectors would be present during the day shift. (Opp. at 5.) Rockwell
Mining did not send Justice a copy of the mine map and has declined to telephone him about
MSHA inspections during the day shift. (Mot. at 6–7, 10–11.)
Justice alleges that Rockwell Mining’s policy—that Justice travel on section 103(f)
“walkarounds” during the evening shift only—is in effect to force him to interact with
individuals who have assaulted him or threatened assault. (Opp. at 11.) Furthermore, Justice has
described a history of alleged violent intimidation that discouraged him from viewing the mine
map. (Id. at 4–5.) Justice states that he described these incidents to the MSHA investigation team
before they declined to bring a section 105(c)(2) case. (Id. at 6.)
Consequently, Justice filed an interference complaint with MSHA on July 6, 2018. By
letter dated August 28, 2018, the Secretary declined to bring section 105(c)(2) charges against
Rockwell Mining. On September 21, 2018, Justice filed his complaint with the Commission
under section 105(c)(3).
II. ISSUES
In its motion, Rockwell Mining argues (1) Rockwell Mining did not interfere with
Justice’s right to inspect the mine map because miners’ representatives do not have the right to
obtain copies of mine maps; (2) Rockwell Mining did not interfere with Justice’s right to
accompany MSHA inspectors (on section 103(f) “walkarounds”) because any given individual
miners’ representative does not have the right to accompany MSHA inspectors during every
shift; and (3) the damages that Justice seeks are not recoverable.
The primary issue before me is whether Rockwell Mining is entitled to summary decision
because there is no genuine issue of material fact about whether Rockwell Mining interfered with
Justice’s rights as a miners’ representative.3
III. PRINCIPLES OF LAW—ANALYSIS—CONCLUSIONS OF LAW
A.

Principles of Law—Summary Decision and Section 105(c) Interference

Commission Procedural Rule 67(b) provides that a motion for summary decision shall be
granted only if “the entire record, including the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as to any
material fact; and (2) [t]hat the moving party is entitled to summary decision as a matter of law.”
29 C.F.R. § 2700.67(b). The Commission has consistently held that summary decision is an
“extraordinary procedure” and analogizes it to Rule 56 of the Federal Rules of Civil Procedure.
3

Some of the arguments in Justice’s Opposition could be construed as a cross-motion for
summary decision in his favor. However, the arguments in the Opposition essentially recapitulate
those in the Complaint, and, for this reason, I decline to evaluate those arguments as though
Justice were arguing his entitlement to a decision without a hearing as a matter of law.

40 FMSHRC Page 1584

Lakeview Rock Prods., Inc., 33 FMSHRC 2985, 2987 (Dec. 2011) (citations omitted). The
Supreme Court, as the Commission observes, has determined that summary judgment is only
appropriate “upon proper showings of the lack of a genuine, triable issue of material fact.” Id. at
2987–88 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986)). The Supreme Court has
also held that both the record and “inferences to be drawn from the underlying facts” are viewed
in the light most favorable to the party opposing the motion. Id. at 2988 (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).
The Mine Act provides relief not only for discrimination but also “interference.” Section
105(c) of the Act provides, in relevant part, that:
[n]o person shall . . . interfere with the exercise of the statutory
rights of any . . . representative of miners . . . because such . . .
representative of miners . . . has filed or made a complaint under or
related to this chapter . . . or because of the exercise by such . . .
representative of miners . . . on behalf of himself or others of any
statutory right afforded by this chapter.
30 U.S.C. § 815(c)(1). The Commission has not settled on the legal test for assessing claims of
interference. See Monongalia County Coal Co., 40 FMSHRC 679, 680–81 (June 2017). Several
Commission Judges have applied the Secretary’s two-prong test, which asks, first, whether the
alleged interfering actions reasonably can be viewed as “tending to interfere with the exercise of
protected rights,” and, second, whether the interfering person can “justify the action with a
legitimate and substantial reason whose importance outweighs the harm caused to the exercise of
protected rights.” See, e.g., Pendley v. Highland Mining Co., 37 FMSHRC 301 (Feb. 2015)
(ALJ) (applying the Secretary’s proposed test for interference). The Commission has split,
however, over whether the Secretary must also demonstrate that the interfering actions were
motivated by animus to the exercise of protected rights. See Monongalia County Coal,
40 FMSHRC at 708–29.4
B.

Analysis

Rockwell Mining argues that, as a matter of law, Justice is not entitled (1) to a copy of
the mine map, (2) to notification regarding a section 103(f) “walkaround” during day and
evening shifts, and (3) to attorney’s fees or damages for pain and suffering. First, I will analyze
the material facts regarding a claim for interference with a miners’ representative’s mine map
inspection rights and section 103(f) “walkaround” rights. I will then turn to the damages issue
and Justice’s other arguments in his Opposition.
1.

Mine Map Inspections and Alleged Violent Threats

Justice complains that Rockwell Mining has not honored his request for a copy of the
mine map. (Compl. at 8.) Rockwell Mining argues that no statute, regulation, or guidance
4

In this order, I need not decide between the tests because the complaint survives the
more stringent test.

40 FMSHRC Page 1585

document confers a right to miners’ representatives to obtain a copy of the mine map and,
accordingly, that no interference took place. (Mot. at 6–8.)
By statute, a miners’ representative5 may inspect the mine map. See 30 U.S.C. § 872(b).
The Mine Act also explicitly permits only the Secretary of Labor and the Secretary of Housing
and Urban Development to request copies of the map, but they must keep them confidential. See
id. In his Opposition, Justice clarifies that the alleged acts of interference include hostile
confrontations while he was present at the mine as a non-employee miners’ representative.
Justice asserts that employees of Rockwell Mining told him that he could not view any
documents posted at the mine site (Opp. at 4), and that past assaults discouraged Justice from
demanding to view the mine map. (Id. at 4–5.) In light of this, Rockwell Mining’s argument
appears to be too narrow. If Justice’s assertions are true, such actions would “interfere with the
exercise of the statutory rights of any . . . representative of miners . . . because of the exercise by
such . . . representative of miners . . . on behalf of himself . . . of any statutory right afforded by
this chapter.” 30 U.S.C. § 815(c)(1). Assertions of hostility could also support a conclusion that
the operator’s interfering actions were the result of animosity toward Justice’s protected actions
as a miners’ representative. See Monongalia County Coal, 40 FMSHRC at 708–29. Whether or
not a miners’ representative is entitled to a copy of the mine map under such circumstances, the
record, construed in favor of the non-moving party, contains a genuine dispute of material fact.
Accordingly, I conclude that summary decision against Justice is inappropriate at this stage.
2.

Section 103(f) “Walkaround” Rights and Alleged Violent Threats

Justice complains that, for a year before he filed his complaint, Rockwell Mining has
failed to telephone him about section 103(f) “walkarounds” during the day shift. (Compl. at 8.)
Rockwell Mining argues that non-employee miners’ representatives are entitled to notification of
MSHA inspections during one shift only—here, they say Justice can attend the evening shift
because it was the last he worked before leaving employment. (Mot. at 8–9.) The Mine Act
provides that:
[s]ubject to regulations issued by the Secretary . . . a representative
authorized by [the operator’s] miners shall be given an opportunity
to accompany the Secretary or his authorized representative during
the physical inspection of any coal or other mine made pursuant to
the provisions of subsection (a), for the purpose of aiding such
inspection and to participate in pre- or post-inspection conferences
held at the mine.
30 U.S.C. § 813(f). MSHA’s Program Policy Manual (PPM) states that, when notice of
enforcement or investigation activities is given, notice should also be given to the representative
5

A miners’ representative is “[a]ny person or organization which represents two or more
miners at a coal or other mine for the purposes of the Act . . . .” 30 C.F.R. § 40.1(b)(1). See also
Utah Power & Light Co. v. Sec’y of Labor, 897 F.2d 447, 455 (10th Cir. 1990) (confirming that
any person or organization representing two or more miners is a miners’ representative under
30 C.F.R. § 40.1(b)). Rockwell Mining does not dispute that two or more miners appointed
Justice as their miners’ representative. (Mot. at 1.)

40 FMSHRC Page 1586

of miners. See I MSHA, U.S. Dep’t of Labor, Program Policy Manual, Section 103-5, at 10
(2010).
In his Opposition, Justice clarifies that the alleged acts of interference included hostile
confrontations while he was present as a miners’ representative at Gateway Eagle Mine. (See
Opp. at 4, 11.) If true, these actions would constitute interference with a miners’ representative’s
exercise of his 103(f) “walkaround” rights and would establish motivation by animus to Justice’s
exercise of protected rights. See Monongalia County Coal, 40 FMSHRC at 708–29 (articulating
a test for interference that requires the operator’s animus toward the exercise of protected rights).
Furthermore, such hostile actions could provide context to the telephone logs created by
Rockwell Mining, which show that Justice went to the mine only once for a section 103(f)
“walkaround.” In light of these alleged threats, the telephone logs could cut both ways: Justice’s
absence on section 103(f) “walkarounds” could establish that Rockwell Mining’s agents are
hostile rather than that Justice lacks initiative. Whether or not Justice is entitled to notification
about evening and day shift inspections, Justice should have the opportunity to present additional
evidence about these incidents. A genuine dispute of material fact precludes summary decision.
3.

Recoverable Damages

Rockwell Mining argues that Justice is not entitled to the damages he seeks for “pain and
suffering and inconvenience” and that he is not entitled to “all customary lawyer fees and
gratuities.” (Mot. at 15.) However, Commission Judges can fashion 105(c) remedies suitable to
the facts of each case. See Sec’y of Labor on behalf of Rieke v. Akzo Nobel Salt Inc.,
19 FMSHRC 1254, 1257 (July 1997) (“The Commission enjoys broad remedial power in
fashioning relief for victims of discrimination.”). Justice has requested all “concession(s)
available to me as permitted by [the] Mine Act . . . .” (Compl. at 2.) Justice is not an attorney, is
pro se, and, consequently, cannot avail himself to attorney’s fees. However, at this stage, I
cannot rule out the possibility of another appropriate remedy for section 105(c) interference.
4.

Other Arguments by Justice

In his Opposition, Justice makes several other arguments, which I feel compelled to
construe as opposing Rockwell Mining’s motion. For example, he asks for the Court to
“dispense” with or “void” certain exhibits or arguments in Rockwell’s Motion. (Opp. at 1, 2, 4,
6.) However, Commission Judges may admit “[r]elevant evidence, including hearsay evidence,
that is not unduly repetitious or cumulative . . . .” 29 C.F.R. § 2700.63(a). He asks the Court to
order MSHA to produce documents (Opp. at 6), but MSHA is not a party to this proceeding.6
Justice asks the Court to examine maps of Gateway Eagle Mine—which he believes may contain
“violation[s] or imminent dangers”—for “security risks.” (Opp. at 9). In his numerous
arguments, it is sometimes difficult to tell what Justice is requesting, and some requests seem
unrelated to Rockwell Mining’s motion. Accordingly, I construe Justice’s various arguments not
to be motions but simply statements in opposition to Rockwell’s motion to dismiss. Justice is

6

A party may choose to submit a written Freedom of Information Act (“FOIA”) request
either to the National MSHA FOIA Officer or to an MSHA FOIA Coordinator.

40 FMSHRC Page 1587

reminded that “[w]ritten motions shall be set forth in a document separate from other pleadings.”
29 C.F.R. § 2700.10(b).
C.

Conclusion

The standard for summary decision under Commission precedent is not whether the nonmoving party is likely to prevail but whether the non-moving party can “prevail under any
circumstances.” KenAmerican Res., Inc., 38 FMSHRC at 1947 (quoting Campbell, 21 F.3d at
55). The presence of a “genuine issue as to any material fact” means that Justice could prevail.
See 29 C.F.R. § 2700.67(b). Justice makes several allegations which, when I draw all inferences
in his favor, create a genuine dispute of material fact as to whether Rockwell Mining interfered
with his Mine Act rights as a miners’ representative. Summary decision is therefore premature.
IV. ORDER
In light of the foregoing, it is hereby ORDERED that Respondent’s Motion to Dismiss is
DENIED.

/s/ Alan G. Paez
Alan G. Paez
Administrative Law Judge

Distribution: (Via Electronic Mail & U.S. Mail)
Marshall J. Justice, 255 Third Street West, Madison, WV 25130-1045
(U.S. Mail Only)
Jonathan R. Ellis, Esq., Steptoe & Johnson PLLC, P.O. Box 1588, Charleston, WV 25326-1588
(jonathan.ellis@steptoe-johnson.com)
/nsd

40 FMSHRC Page 1588

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1331 PENNSYLVANIA AVENUE N. W., SUITE 520N
WASHINGTON, D.C. 20004-1710
Telephone No.: 202-434-9933
Telecopier No.: 202-434-9949

December 26, 2018
SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), ON
BEHALF OF DELBERT LEIMBACH,
Applicant

CIVIL PENALTY PROCEEDING
Docket No. LAKE 2019-0106-DM
No. NC-MD-19-01

v.
HUBER CARBONATES, LLC
Respondent

Mine: Quincy Plant
Mine ID: 11-02627

ORDER GRANTING TEMPORARY REINSTATEMENT
Before: Judge William B. Moran
Before the Court is the Secretary of Labor’s (“Secretary”) application for temporary
reinstatement regarding Delbert Leimbach. The Secretary’s application for temporary
reinstatement of Mr. Leimbach is pursuant to the Secretary’s authority under section 105(c) of
the Federal Mine Safety and Health Act of 1977 (“Mine Act”). Respondent, Huber Carbonates,
LLC (“Respondent”) contested the Secretary’s Application. A hearing on the temporary
reinstatement application was conducted on December 19, 2018. The parties agreed at the outset
of the hearing that there were no jurisdictional issues and that the only issue before the Court is
the determination as to whether the application was frivolously brought. Tr. 8.
For the reasons that follow, the Court, finding that the Application was not frivolously
brought, GRANTS the Secretary’s Application for temporary reinstatement of Delbert
Leimbach, effective as of the date of this Order.
Testimony at the Temporary Reinstatement Hearing.
Complainant Delbert Leimbach was the sole witness at the hearing. Leimbach was an
employee of Respondent, Huber Carbonates, LLC from early 2010 until his termination of
employment in September 2018. Tr. 31. In 2015, Leimbach was hired as the Chief Engineer at
Huber’s Marble Hill, Georgia plant. Tr. 41-42. That plant has a limestone mine. Tr. 46.
Leimbach was subject to annual performance reviews and in his eight years with Huber he never
has had a negative review. Tr. 47.
Prior to filing his discrimination complaint, Complainant was involved in a 105(c)
discrimination investigation. This occurred in 2018, around April. Tr. 48. It involved former
Huber employee Justin Hickman, who was the ball mill coordinator at the plant. Tr. 48. At that
time Liembach met with Robert Hogan, who was then the production manager. Complainant
stated that Hogan was upset over Hickman’s termination. Tr. 49. In essence, it was

40 FMSHRC Page 1589

Complainant’s contention that the performance improvement plan (“PIP”) for Hickman was
misleading in that it asserted that Hickman failed to complete a project. Complainant asserted
that a project plan was devised but unfunded and that was the reason the project was not
completed. Tr. 51. Based on that unfairness, Leimbach contacted the MSHA special investigator
for Hickman’s 105(c) discrimination claim in April and May of 2018. Id.
In May 2018, Leimbach spoke with Huber management about Hickman’s 105(c) case.
At that time he spoke with Sharon Noble, the vice president of HR and Brian Williams, vice
president of Environmental Health and Safety. These conversations occurred after Hickman had
been fired and were part of Huber’s internal investigation related to the Hickman matter. Tr. 56.
At that meeting, Leimbach related that Huber asked him if he had “heard any Huber
management saying that [Huber] should change work procedures to affect the dust samples.
[Leimbach] responded in the affirmative. [Huber also] asked [Leimbach] if [he] had talked to
MSHA. [Leimbach] responded in the affirmative.” Tr. 57. Leimbach also told Noble and
Williams about his conversations with MSHA, advising that he “told them [MSHA] the same
information about Justin[] [Hickman's] PIP not being accurate.” Id.
Leimbach also participated in a 105(c) investigation regarding a complaint of
discrimination filed by Hickman. He spoke to investigators from the Mine Safety and Health
Administration (MSHA) and he informed his [Huber] managers that he had discussed the
investigation of that matter with MSHA, and repeated the information he had provided MSHA
with regard to that 105(c) investigation. Id.
Leimbach testified that following that meeting with Huber things began to change in his
employment. Prior to that meeting, Leimbach had been brought into meetings with MSHA
involving dust issues, but after it, he was not brought into to any new MSHA items. Tr. 59.
Further, he was called in for a subsequent Huber internal investigation – this one including
Huber’s legal counsel. That second meeting occurred about a month after the meeting with
Noble and Williams. It covered the same topics as the initial meeting – inquiring if he had
talked with MSHA, and if had he heard Huber management saying that they should change
work procedures regarding dust. Tr. 59-60.
Subsequently, during the first week of August 2018, there was an MSHA inspection at
Huber at which about five inspectors came to the mine. They arrived because a complaint had
been called in to MSHA. On that day, Leimbach stated that several employees came to his
office, asserting that he must have been the one who called MSHA. Tr. 60. Leimbach also heard
that several members of management believed that he was the person who called MSHA. Tr.
60-61. Leimbach asserted that Mike Morris, the plant manager, Sean Eisenbeiss, the
maintenance manager, and Kevin Garnett, the Environmental Health and Safety [EHS]
coordinator, all told him that management believed he was the person who called MSHA. Tr.
60-61. Leimbach denied that he was the source to each person who made that claim about him.
Tr. 61.
Thereafter, on August 22, 2018, Leimbach met with Huber management’s Dave Daisy,
the director of HR for ground calcium carbonate. Tr. 64-65. Their discussion included
Leimbach’s reasons for being unhappy with Huber and Leimbach’s informing Daisy that Huber
management wanted to modify work practices to make the dust sampling come out better.

40 FMSHRC Page 1590

Leimbach expressed that it was hard to work in that environment, where things were not “on the
up and up.” Tr. 65. By that expression, Leimbach was clear – he meant doctoring of samples as
a serious matter. Id. Daisy’s reaction to their conversation was to present Leimbach with three
options – move to another Huber business unit, receive a generous payout, or stay at his present
job, with the last choice described by Daisy as the least desirable option. Tr. 66.
Following that, on September 17, 2018, Leimbach met again with Daisy and with
Richard Lewis, the director of safety for ground calcium carbonate. Tr. 66-67. The upshot of
that meeting was Leimbach was suspended pending an investigation. Three days later, on
September 20th, Leimbach was terminated. 1 Following his testimony of direct, Leimbach was
cross-examined.2
Standard of Review
In order for a miner to receive an order granting temporary reinstatement, the Secretary
must prove that the miner’s complaint was not frivolously brought. In drafting Section 105(c) of
the Mine Act, Congress indicated that a complaint is “not frivolously brought” when it “appears
to have merit.” S. Rep. No. 181, 95th Cong. 1st Sess. 36-37 (1977), reprinted in Senate
Subcommittee on Labor, Committee on Human Resources , 95th Cong. 2nd Sess., Legislative
History of Federal Mine Safety and Health Act of 1977, at 6240625 (1978).
There are two elements to an act of discrimination: first, that the employee engaged in
protected activity, and second, that the adverse action complained of was motivated in part by
that activity. Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1064 (May 2011); Sec’y
on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sep. 1999); Sec’y on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981).
“Protected activity” includes filing or making complaints “under or related to” health
and safety standards issued under the Mine Act, as well as initiating or participating in
proceedings commenced under the Mine Act. 30 U.S.C. § 815(c). See also Pasula v.
Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom.

1

The circumstances involving Leimbach’s basis for Respondent’s decision to terminate
his employment are disputed by the Secretary and Respondent. The dispute involves two related
issues: the grounds provided in Leimbach’s complaint and the issue of whether an email from
Huber’s counsel to Huber can legitimately be considered in the discrimination claim. In view of
this, at the outset of the hearing the Court announced that it would bifurcate the issues presented
so as to compartmentalize mention of the disputed matter. It achieved this by directing the
Secretary to first present its evidence supporting the application for temporary reinstatement
apart from the disputed matter. Following that evidence, the Secretary elected to stand on that
presentation and not to delve into the disputed matters. The Respondent did not raise the disputed
matter either, except to maintain that the decision did not constitute a waiver of that issue in
subsequent arguments. The Court reassured the Respondent that the issue was not waived.
2

The cross-examination is referenced in the discussion section of this Order.

40 FMSHRC Page 1591

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d. Cir. 1981); Sec’y on behalf of Lester v.
Know Crrek Coal Corp., 35 FMSHRC 1916, 1928-1931 (June 2013) (ALJ).
As the Court stated at the hearing, the determination of whether an application is
frivolously brought is not limited to the four corners of the discrimination complaint. The
statutory scheme provides to miners an administrative investigation and evaluation of an
allegation of discrimination. Hatfield v. Colquest Energy, 13 FMSHRC 544 (Apr. 1991). In Sec.
v. Hopkins County Coal, LLC, 38 FMSHRC 1317, June 2016, the Commission expounded upon
its Hatfield decision, stating that “the miner’s complaint establishes the contours for subsequent
action.” Hopkins at 1340. It noted in Hopkins that the complainant’s original complaint was
general in nature and contained no indication of the new matters apparently alleged for the first
time in the amended complaint.” Id. at 1341 (citing Hatfield at 546). The Commission held that
the initial complaint formed the basis of MSHA’s investigation. Id. The key element in these
matters is that the determination of the scope of the complaint is not constrained entirely by the
four corners of the miner’s complaint, but is also informed by MSHA’s ensuing investigation:
The Commission has previously held that ‘the Secretary’s decision to proceed
with a complaint to the Commission, as well as the content of that complaint, is
based on the Secretary’s investigation of the initiating complaint to [him], and not
merely on the initiating complaint itself.’ Sec’y o/b/o Callahan v. Hubb Corp., 20
FMSHRC 832, 837 (Aug. 1998); see Sec’y o/b/o Dixon v. Pontiki Coal Corp, 19
FMSHRC 1009, 1017 (June 1997); Hatfield, 13 FMSHRC at 546. If the content
of a discrimination complaint filed with the Commission is based on that which is
uncovered during the Secretary’s investigation, then it follows that the Secretary’s
authority to investigate in the first instance cannot be circumscribed by the early
and often uninformed statements made by a miner in his charging complaint.
[Hopkins], at 1326, n. 15.
Mulford v. Robinson Nevada Mining, 39 FMSHRC 1957, 1959-1960, (Oct. 2017)
Discussion
The Court, upon hearing and evaluating the testimony of Mr. Leimbach, concludes that
his testimony was credible and, for purposes of this temporary reinstatement application, that his
testimony was not diminished by the cross-examination. Although the cross-examination raised
questions concerning the extent to which the Complainant’s participation in prior safety matters
was diminished, post raising his safety concerns, those questions did not demonstrate that the
application was frivolous. As noted above, the temporary reinstatement proceeding is not the
time to weigh such matters against the complainant’s testimony: “[i]t [is] not the Judge’s duty,
nor is it the Commission’s, to resolve the conflict in testimony at this preliminary stage of
proceedings.” Chicopee, 21 FMSHRC 717, 719 (July 1999).
As set forth above, again in the context of a temporary reinstatement proceeding,
Leimbach’s testimony, when considered together with his interview by MSHA in connection

40 FMSHRC Page 1592

with his discrimination complaint,3 established protected activity and a nexus to the adverse
action, sufficient to demonstrate that the Application was not frivolously brought.
Employee’s Protected Activity and Operator’s Adverse Action
The Court concludes and finds that there is reasonable cause to believe that Complainant
Delbert Leimbach engaged in protected activity and that there is reasonable cause to believe that
the adverse action, his termination, was motivated in part by his engagement in the protected
activity discussed above. A nexus has been established.4
ORDER
For the foregoing reasons, the Court finding that the Application was not frivolously
brought, Respondent Huber Carbonates, LLC is hereby ORDERED to reinstate Delbert
Leimbach to his former position at the same rate of pay and with all other benefits that he
enjoyed prior to his discharge, as of the date of this decision.

/s/ William B. Moran
William B. Moran
Administrative Law Judge

3

See, Declaration of MSHA Special Investigator David Schwab, Exhibit A, to
Application for Temporary Reinstatement, Official File at 5-7.
4

The Commission has established several indicia of discriminatory intent to establish a
“nexus” between the employee’s protected activity and the alleged adverse action. Those factors
include (1) knowledge of the protected activity; (2) hostility or animus towards the protected
activity; (3) coincidence in time between the protected activity and the adverse action; and (4)
disparate treatment of the complainant. Sec’y on behalf of Williamson v. CAM Mining, LLC, 31
FMSHRC 1085, 1089 (Oct. 2009). The Secretary need not demonstrate each factor individually;
rather, any combination of factors is sufficient so long as they support by substantial evidence a
conclusion that there is reasonable cause to believe a complainant suffered adverse action for
engagement in protected activity.

40 FMSHRC Page 1593

Distribution:
Jason Nutzman, Dinsmore & Shohl LLP, 707 Virginia Street East, Suite 1300, Charleston, WV
25301
R. Jason Patterson, Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street,
Rm. 844, Chicago, IL 60604
Delbert Ted Leimbach, 3208 Lindell Avenue, Quincy, IL 62301

40 FMSHRC Page 1594