NOVEMBER 1993

CC:UC:SSION DECISIONS AND ORDERS
11-05- 93
11-09-93
11-16-93
11 -17-93
11-17-93
11-17-93
11-30-93

Jim Walter Resources, Inc.
Sec. Labor on behalf of Donald Gregory
& Loy Peters v. Thunder Basin Coal Co.
Daniel Lee Coal Company
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Pittsburg & Midway Coal Mining Co.
Cedar Lake Sand & Gravel Company

SE

93-56-R

WEST 92-279-D
KENT 91-187
CENT 91-202
CENT 91-197-A
CENT 91-197-B
LAKE 93-64-M

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2228
224 1
2243
2247
2250
2253

ADMINISTRATIVE LAW JUDGE DECISIONS
11-01-93
11-02-93
11-03 -93
11-04-93
11-08-93
11-12-93
11-16-93
11 -17 -93
11-17-93
11-18-93
11-18-93
11-18-93
11 -18-93
11 -18-93
11-19-93
11-19-93
11-23-93
11 -24-93
11-29-93
11-30-93

Consolidation Coal Company
WEVA 92-1050
Sec. Labor on behalf of Loy Peters, Donald
Gregory & Darryl Andersorr v. Thunder
Basin Coal Company
WEST 93-652-D
Sec. Labor on behalf of Freddy Thacker
v. Black Dragon Mining Co.
KENT 93-977-D
Arenas Matilde Incorporated
SE
92-419-M
FMC Wyoming Corporation
WEST 92-174-RM
WEST 93-171
Art Beavers Construction
Nicholas Ramirez v. Bear Run Coals, etc.
WEVA 92-1115-D
USX Corporation
LAKE 92-279-M
Buck Mountain Coal Company
PENN 93-442-R
Fort Scott Fertilizer-Culler Inc.
CENT 92-334 -M
Sec. Labor on behalf of Danny Shepherd v.
Sovereign Mining Company
KENT 94-69 - D
Sec . Labor on behalf of James Johnson v.
Jim Walter Resources, Inc.
SE
93-127-D
Laurel Sand and Gravel, Inc.
YORK 93-81-M
Sec. Labor on behalf of James Miller v.
YORK 93-155-D
Mettiki Coal Corporation
s & H Mining, Incorporated
SE
93-202
Sec. Labor on behalf of John Lacek v.
F & E Erection Company
WEST 93-106-D
WEST 91-251
Energy West Mining Company
KENT 93-487
New Hope of Kentucky, Inc.
Sec. Labor on behalf of Perry Poddey v.
WEVA 93-339-D
Tanglewood Energy Inc.
Bucket Coal Company
PENN 93-109

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2303
2304
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2327
2331
2333
2350
2354

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ADMINISTRATIVE LAW JUDGE ORDER$
11-19-93

Southmountain Coal Company

VA

93-165

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NrnlEM'RBR 1993
Reyiew was granted in the following cases during the month of Noyember:
Secretary of Labor, MSHA v. Pyramid Mining Incorporated, Docket No.
KENT 93 -184.
(Judge Weisberger, September 23, 1993).
Secretary of Labor, MSHA v. Drillex Incorporated, Docket No . SE 92-130-M.
(Judge Barbour, September 23, 1993) .
Secretary of Labor, MSHA v. Wyoming Fuel Company, Docket Nos. WEST 92 - 340,
WEST 92-384, WEST 93-186.
(Judge Morris, September 27, 1993).
Secretary of Labor, MSHA v. Daniel Lee Coal Company, Docket No. KENT 91 - 187.
(Chief Judge Merlin, June 10, 1992 , Order of Remand/Dismissal not previously
published) .
Secretary of Labor, MSHA v. Joy Technologies Inc., Docket No. WEST 93-129.
(Judge Melick, October 14, 1993).
Sec retary of Labor, MSHA v. Cedar Lake Sand & Gravel Company, Inc., Docket No.
LAKE 93 - 64-M.
(Default Decision of Chief Judge Merlin, August 27, 1993,
previously unpublished) .
Secretary of Labor, MSHA v. S & H Mining Incorporated, Docket Nos. SE 93-9,
SE 93 - 10, SE 93-98.
(Judge Fel dman, October 22, 1993) .
Review was denied in the fol lowing cases <luring the month of November:
Secretary of Labor, on behalf of James W. Miller v. Mettiki Coal Corporation,
Docket No. YORK 93-155 - D.
(Judge Feldman, Interlocutory Review of October 8,
1993 Order) .
Secretary of Labor, MSHA v . United Energy Services, Inc., Docket No.
WEVA 92-916, etc.
(Judge Koutras, September 30, 1993).
Jim Walter Resources v. Secretary of Labor, MSHA, Docket No . SE 93-56-R, etc.
(Judge Melick, Interlocutory Review of August 23, 1993 Order) .
Secretary of Labor, MSHA v. c & B Mining Incorporated, Docket No. PENN 92 -53 1.
(Judge Barbour, May 25, 1993 - Docket No. was incorrectly listed as
PENN 92-351).

COMMISSION DECISIONS AND ORDERS

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

D.C.

20006

November 5, 1993

JIM WALTER RESOURCES, INC .,
Contestant

v.

Docket No. SE 93-56-R

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

Docket No. SE 93-13 2

Respondent
UNITED MINE WORKERS OF
AMERICA,
Intervenor

In this proceeding, Jim Walter Resources, Inc., ("JWR") has filed a
petition seeking interlocutory review by the Commission of a pretrial order
issued on August 23, 1993, by Administrative Law Judge Gary Melick . JWR's
p etition , f iled "pursuant to 29 C. F.R. § 2700.74 , " erroneously refers to the
Commission's previous procedural rule for interlocutory review .
The
Commission's procedural rules were revised , effective May 3, 1993 .
58 Fed.
Reg . 12158 (March 3, 1993) .
The new rule regarding interlocutory review,
found at§ 2700.76, to be codified at 29 C.F.R. § 2700.76 (1993), provides
that review cannot be granted unless: the judge has certified, either on his
own or as the result of a party's motion, that his interlocutory ruling
i nvolves a controlling question of law and that , in his view, immediat e review
will materially advance final disposition of the matter; or that the judge has
denied a party's motion for certification of the interlocutory ruling, and
review is sought within 30 days of the denial .
JWR filed its pet ition directly with the Commission. Thus, JWR's
pet ition for interlocutory review was not filed in conformance with the
Commission ' s current rules .
Nevertheless, because the Commission's rules have
only recently been revised and in the interest of judicia l economy, we have
reviewed the petition.

2225

Having fully considered the petition of JWR, we conclude that it does
not establish a basis for granting interlocutory review and we deny its
request .

Arlene Holen, Chairman

~~-~~4~
Richard V. Backley, Commissioner

L--

~i~e, £.,,~
CommisSiOrier

~~

L. Clair Nelson, Commissioner

2226

Distribution
David M. Smith , Esq.
Maynard, Cooper & Gale
1901 Sixth Avenue North
2400 AmSouth, Harbert Plaza
Birmingham , AL 35203
J . Alan Truitt, Esq.
Jim Walter Resources, Inc .
P.O. Box 830079
Brookwood, AL 35283

William Lawson, Esq.
Office of the Solicitor
U.S. Department of Labor
Chambers Bldg .
Highpoint Office Center
Suite 150
100 Centerview Drive
Birmingham, AL 35216
Jerald Feingold, Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd .
Arlington, VA 22203
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church , VA 22041

2227

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

20006

ifovember 9, 1993
SECRETARY OF I.ABOR ,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of DONALD L. GREGORY,
Petitioner
and
NATIONAL I.ABOR RELATIONS BOARD ,
Intervenor
Docket No . WEST 92 - 279-D

v.

THUNDER BASIN COAL COMPANY,
Respondent
SECRETARY OF I.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of LOYD. PETERS,
Petitioner
and
NATIONAL LABOR RELATIONS BOARD ,
I ntervenor
Docket No. WEST 92-280-D

V.

THUNDER BASIN COAL COMPANY,
Respondent
BEFORE:

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

BY THE COMMISSION:
This proceeding, arising under the Federal Mine Safety and Health Act of
1977 , 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), i nvolves discrimination complaints brought by the Secretary of Labor ("Secretary") against

2228

Thunder Basin Coal Company ("Thunder Basin") on behalf of Donald L. Gregory
(Docket No. WEST 92-279-D) and Loy D. Peters (Docket No. WEST 92-280-D). The
issue is whether Administrative Law Judge Michael A. Lasher, Jr., in his order
reported at 14 FMSHRC 1391 (August 1992)(AlJ), erred in dismissing the two
complaints because of the Secretary's failure to comply with the judge's
orders compelling discovery. The Secretary had declined to disclose certain
information sought during discovery on the grounds that it was protected by
the informant's privilege and that it involved documents under the control of
another federal agency, the National Labor Relations Board ("NLRB").
The Commission granted the Secretary's petition for discretionary review
of the judge's order and granted the NLRB's motion to intervene in support of
the Secretary's position. The Commission also permitted amicus curiae
participation by the American Mining Congress and the National Coal
Association ("industry amici") in support of Thunder Basin. For the reasons
set forth below, we reverse and remand for further proceedings.
I.

Factual and Procedural Background
Thunder Basin owns several coal mines, including the non-union Black
Thunder Mine in Wyoming. 1 In 1990, pursuant to the Secretary's regulations
at 30 C.F.R. Part 40 ("Part 40"), some Black Thunder miners designated agents
of the United Mine Workers ("UMWA"), who did not work at the mine, as their
representatives for purposes of the Mine Act, including "walkaround" rights
under section 103(f) of the Act, 30 U.S.C. § 813(f). Both Gregory and Peters,
maintenance technicians at the Black Thunder Mine, were designated as
alternate miners' representatives.
On March 11, 1991, Thunder Basin filed a suit against the Department of
Labor's Mine Safety and Health Administration ("MSHA") in the United States
District Court for the District of Wyoming to enjoin MSHA from enforcing its
Part 40 r egulations agains t Thunder Basin. Gregory and Peters testified at
depos itions on behalf of MSHA. Peters also testified at the subsequent court
hearing . 2
1

There has been no hearing in this case. Background information is based
on the parties ' pleadings and briefs and the judge's orders.
2

In an unpublished order of March 21, 1991, the District Court issued a
preliminary injunction enjoining the Secretary from enforcing Part 40 against
Thunder Basin.
The Court concluded that the UMWA was improperly using the
miners ' representative process under the Mine Act as a tool for union organizing
purposes . On July 21, 1992, the United States Court of Appeals for the Tenth
Circuit vacated the District Court's judgment and remanded the case to the lower
court with instructions to dismiss the proceeding for lack of subject matter
jurisdiction. Thunder Basin Coal Co. v. Martin, 969 F. 2d 970. The Supreme Court
granted Thunder Basin's petition for writ of certiorari seeking review of the
Tenth Circuit's decision. Thunder Basin Coal Co. v. Reich, No. 92-896 (March 8,
1993). The case was argued in the Supreme Court on October 5, 1993.

2229

In November and December 1991, Peters and Gregory filed discrimination
complaints with the Secretary, pursuant to section lOS(c) of the Mine Act, 30
U.S.C. § 815(c). 3 After investigating the complaints, the Secretary, on
February 24, 1992, filed discrimination complaints on behalf of Gregory and
Peters, alleging that Thunder Basin had discriminated against them because of
their cooperation with MSHA in the Thunder Basin litigation. According to the
complaints, Peters had been reprimanded and given a negative performance
appraisal, while Gregory had been subjected to several instances of
harassment. The complaints also asserted that Thunder Basin had refused to
recognize Gregory and Peters as alternate miners' representatives. Thunder
3

Section lOS(c) provides in pertinent part:
Discrimination or interference prohibited: complaint:
investigation: determination: hearing
(1) No person shall discharge or in any manner
discri.minate against or_cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner,
representative of miners or applicant for employment in
any coal or other mine subject to this [Act] because
such miner ... has instituted or caused to be instituted
any proceeding under or related to this [Act] or has
testified or is about to testify in any such proceeding,
or because of the exercise by such miner ... on behalf
of himself or others of any statutory right afforded by
this [Act].
(2)
Any miner or applicant for employment or
representative of miners who believes that he has been
discharged , interfered with, or otherwise discriminated
against by any person in violation of this subsection
may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimi nation. Upon receipt of such complaint, the Secretary
shall forward a copy of the complaint to the respondent
and shall cause such investigation to be made as he
deems appropriate .. . . If upon such investigation, the
Secretary determines that the provisions of this
subsection have been violated, he shall immediately file
a complaint with the Commission, with service upon the
alleged violator and the miner,
alleging such
discrimination or interference and propose an order
granting appropriate relief.
The Commission shall
afford an opportunity for a hearing . .. and thereafter
shall issue an order, based upon findings of fact,
affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief.
Such order shall become final 30 days after its
issuance .

2230

Basin answered on March 16, 1992, denying that it had discriminated against
the complainants. The complaints were consolidated for hearing.
In the meantime, the UMWA filed an unfair labor practice charge with the
NLRB on January 30, 1992, alleging that Thunder Basin had discriminated
against Peters and six other miners in order to discourage their membership in
the UMWA in violation of sections 8(a)(l) and (a)(3) of the National Labor
Relations Act ("NI.RA"), 29 U.S . C. §§ 158(a)(l) and (a)(3) (1988). On Apr il
29, 1992, the NLRB issued a complaint alleging that Thunder Basin had
committed various unfair labor practices in an attempt to discourage Thunder
Basin employees from supporting the UMWA. Among other things, the complaint
alleged that Thunder Basin had given Peters a negative performance appraisal
due to his union activities. The complaint did not mention Gregory by name.
In deposition notices in the Mine Act proceeding, directed to both
Gregory and Peters and filed with the judge on May 18, 1992, Thunder Basin
requested the complainants "to produce ... the originals and all nonconforming copies of all notes, memoranda, [and] written statements given to
any governmental agency ... which in a~y way relate to [complainants']
allegations in this action .... " On June 9, 1992, Thunder Basin deposed
Gregory .
Counsel for Thunder Basin asked Gregory whether he had "any statements,
notes or memoranda" that he may have given to a government agency relating to
his Mine Act complaint, and Gregory responded that he did not. Dep. Tr. 1011. Gregory was asked whether he had given any such statements and replied
that he had not. Dep. Tr. 11. Counsel asked Gregory whether he was aware of
"any other notes or letters or other written documents that may be in
existence that relate to [his] claims in this action." IQ. Gregory asked to
speak with the Secretary's counsel. Id. The Secretary's counsel stated that
Gregory was not obligated to provide information regarding "anything he's
g iven to the NLRB." Id. Thunder Basin's counsel then asked Gregory whether
h e had gi ven any statements about his treatment by Thunder Basin to anyone
e lse and the Secretary's counsel again objected. Dep. Tr. 12-14. Counsel
also asked Gregory whether he believed that any of the alleged mistreatment he
had received was tied to any union activities, and the Secretary's counsel
instructed Gregory not to answer the question. Dep. Tr. 130-31.
On June 24 , 1992 , Thunder Basin filed a motion to compel discovery. It
r equested the judge to direct a response to questions relating to any oral or
written statements that Gregory may have given to any other governmental
agency regarding his treatment by Thunder Basin, to require production of any
s uch written documents, and to permit inquiry into whether Gregory believed
t hat any alleged mistreatment he had received was tied to his union
activities . Thunder Basin argued that such information was relevant for
evaluation of whether the alleged mistreatment stemmed from the exercise of
Mine Act rights or from union activities protected under the NLRA, and for
purposes of impeachment. Motion to Compel at 3. The Secretary opposed the
motion, asserting that the information sought was protected by the informant's
privilege.

2231

The judge, on July 8, 1992, issued an order granting Thunder Basin's
motion to compel. The judge found that the requested information could reveal
inconsistencies, thus providing impeachment material for the forthcoming
trial. July 8 Order at 1-2. The judge directed the Secretary to make Gregory
available for deposition on such matters but only "for the limited purposes
indicated in the Motion .... " July 8 Order at 2 (emphasis in original).
The Secretary filed a motion for reconsideration and, on July 20, 1992,
the judge issued a second order, "affirming" his prior order. The judge
emphasized that the discovery authorized in his prior order was "limited to
questions and/or documents leading to impeachment material (prior inconsistent
statements made by [Gregory]) which may also be relevant to the anticipated
'motivation' issue." July 20 Order at 3. The judge stated:
[A]s Respondent contends, to "the extent Mr. Gregory
may have told (the NLRB) a different story, whether
with regard to the ways in which he believes he was
mistreated or the reasons for that mistreatment" [such
areas] may be inquired into on discovery, and if
inconsistent to his testimony in this action, be
admissible at hearing.
Id. The judge also prohibited Thunder Basin from using the deposition to
l earn the identity of other informants. Id.
The Secretary, on August 6, 1992, filed a Notice Regarding Discovery on
behalf of Gregory and Peters, indicating that he would not comply with the
directed discovery. The Secretary relied on the informant's privilege and
also stated that he did not have custody or control of any document or
information that the complainants may have provided to another agency.
Anticipating that the judge would rule consistently as to Peters, the parties,
on August 7, 1992, filed a stipulation requesting the judge to enter an
i dentical discovery order with respect to Peters. On that date, Thunder Basin
also moved f or sanctions and dismissal of both cases on the basis of the
Secretary's refusal to comply with the judge's earlier discovery orders. On
August 11, the judge issued an order compelling discovery in the Peters case.
On August 14, 1992 , the judge, citing Secretary on behalf of Logan v.
Br i ght Coal Co ., 6 FMSHRC 2520 (November 1984), issued his decision and order
dismissing both complaints because of the Secretary's failure to comply with
his orders compelling discovery. The judge indicated that any statements that
the complainants may have given to other government agencies "are either in
t he p ossession of Complainants or can be obtained by them," that production of
any such documents was thus proper, and that their availability "was glossed
over [by ] the Secretary .... " 14 FMSHRC at 1392. The judge found that the
material sought was "plainly relevant" and emphasized that his orders
contained "protective language." Id. He reiterated his view that any such
material could be useful for impeachment purposes. Id. He noted that "[i]n
view of the information already contained in the Commission files, I find the
Secretary's assertion of informant's privilege a transparency." Id.

2232

At the time the judge issued his August order, the NLRB unfair labor
practice proceeding was pending, with a hearing scheduled for October 1992.
II.

Disposition of Issues
A.

Parties' Arguments on Review

The Secretary argues that the informant's privilege protects the
complainants from having to disclose whether they were NLRB informants and
from having to produce any confidential statements that they may have given
the NLRB as part of its unfair labor practice investigation of Thunder Basin.
The Secretary and the NLRB contend that the release of any such protected
material would impede the NLRB's enforcement of the NLRA. The Secretary
further argues that, having found the material relevant, the judge failed to
apply the principles announced by the Commission in Bright to determine
whether the informant's privilege attached and, if so, to balance whether the
operator's need for the material was greater than the Secretary's need to
maintain the privilege in the public interest.
The NLRB asserts that application of the Bright test would show that the
public interest in efficient enforcement of the NLRA, and an informant's right
to be protected against retaliation, outweigh Thunder Basin's need for any
statements that the complainants may have given the NLRB. The NLRB states
that it has a vital interest in maintaining confidentiality of witnesses'
identity and statements in order to assure continued reporting of violations.
The Secretary and NLRB contend that Thunder Basin's need for the information
is not great because it is based only on the surmise that the information may
be inconsistent with the complainants' Mine Act statements. Moreover, the
materials sought are extraneous because Thunder Basin has obtained from the
Secretary the material related to the Mine Act proceeding.
The NLRB a lso maintains t hat t he "official i nformation" privilege
appl ies to its mate rials , as they would be contained in governmental
i nvest i gation fil e s. NLRB Br. 14-16.
Thunder Basin argues that the judge properly ordered discovery because
the information sought was clearly relevant to the complainants ' statements
about t heir alleged discriminatory treatment. The operator sought discovery
f rom the complainants, not from MSHA or the NLRB and consequently the
informant's privilege is not properly invoked by those agencies. The operator
and the industry amici argue that the informant's privilege does not apply
because the identities of Gregory and Peters were disclosed in the NLRB
proceeding and the underlying purpose of the privilege precludes its
application where the informant's identity has been revealed. The operator
and amici assert that, even if the informant's privilege is applicable,
Thunder Basin's need for the material outweighs any public interest under a
Bright balancing test. They also contend that the official information
privilege may not be invoked on review because it was not raised before the
judge and, even if it has now been properly raised, the privilege does not
apply to the materials sought. In reply, the NLRB argues that the official

2233

information privilege was properly raised for the first time in its motion to
intervene because it had not been a party before the judge.
B.

Applicable General Principles

The essential question presented on review is whether a complainant
represented by the Secretary may be required to disclose whether he was also
an informant in an NLRB unfair labor practice investigation and, if so, to
produce any statements he gave to the NLRB. The Secretary provided Thunder
Basin with copies of Gregory's MSHA statements; the general availability of a
complainant's statements to MSHA is not in dispute. See Bright, 6 FMSHRC at
2520.
In reviewing claims that a judge erred in a discovery dispute, the
Commission cannot merely substitute its judgment for that of the judge . .
Asarco, Inc., 12 FMSHRC 2548, 2555 (December 1990)("Asarco I"). A Commission
judge is granted wide discretion in discovery matters. In Re: Contests of
Respirable Dust Samp'le Alteration Citations, 14 FMSHRC 987, 1005 (June
1992)("Dust Sample Cases"). The Co~ission's role is to determine whether the
judge's factual determinations are supported by the record and whether he
correctly interpreted and applied the law or otherwise abused his discretion.
Asarco I, 12 FMSHRC at 2555. See also Asarco. Inc., 14 FMSHRC 1323, 1327-28
(August 1992) ("Asarco II").
Commission Procedural Rule 61, 58 Fed. Reg. 12158 (March 3, 1993;
effective May 3, 1993), to be codified at 29 C.F.R. § 2700.61, provides that,
"except in extraordinary circumstances," a judge "shall not ... disclose or
order a person to disclose to an operator or his agent the name of an
informant who is a miner. " 4 The informant's privilege is based on the
Supreme Court's discussion in Roviaro v. United States, 353 U.S. 53 (1957).
The informant's privilege is the right of the government to withhold from
d isclosure the identity of persons furnishing information on violations of the
law t o law enforcement officials. Bright, 6 FMSHRC at 2522 - 23. In general,
t h e privilege protects against the disclosure of an informant's identity and
against the release of those portions of written statements that could reveal
an informant's identity. The Commission has emphasized -- and all parties to
the present proceeding agree -- that the privilege is qualified. Where
disclosure is essential to the fair determination of a case, the privilege
mus t yield or the case may be dismissed. Bright, 6 FMSHRC at 2523.
I n Bright and subsequent cases, the Commission has set forth a framework
f or analysis of whether an informant's identity and statements should be
disclosed . First, the judge must determine whether the information requested
i s relevant. See Asarco II, 14 FMSHRC at 1327; Asarco I, 12 FMSHRC at 2553.
Second, if the judge concludes that the material is relevant, he must
determine whether it is privileged; the burden of proving facts necessary to
support the privilege rests with the government. See Asarco I, 12 FMSHRC at
2553; Bright, 6 FMSHRC at 2523. Third, if the qualified privilege exists , the
4

The present Commission rule carries forward unchanged the Commission's
prior informant's rule, 29 C.F.R. § 2700.59 (1992).

2234

judge should conduct a balancing test.
The Commission described this test in Bright:
Recognizing that the informer's privilege is
qualified, if the judge concludes that the privilege
is appYicable, he should next conduct a balancing test
to determine whether the respondents' need for the
information is greater than the Secretary' s need to
maintain the privilege to protect the public interest .
Drawing the proper balance concerning the need for
disclosure will depend upon the particular
circumstances of [the] case, taking into account the
violation charged, the possible defenses, the possible
significance of the informer's testimony, and other
relevant factors. Among the relevant factors to be
considered are the possibility for retaliation or
harassment, and whether the information is available
from sources other than .the government.
The burden of proving facts necessary to show
that the information is essential to a fair
determination rests with the party seeking disclosure.
Hodgson v. Charles Martin Inspectors of Petroleum.
Inc., 459 F.2d [303] at 307 [(5th Cir. 1972)]. In
this regard a demonstrated, specific need for material
may prevail over a generalized assertion of privilege.
Black v. Sheraton Corp. of America, 564 F.2d [531] at
545 [(D . C. Cir. 1977)]. Some of the factors bearing
upon the issue of need include whether the Secretary
is in sole control of the requested material or
whether the material which respondents seek is already
within their control, and whether respondents had
other avenues available from which to obtain the
substantial equivalent of the requested material.
6 FMSHRC at 2526.
C.

I nformant's Privilege

Applying the principles of Bright, we agree with the judge's threshold
determination that the information sought was relevant in the context of
Commission discovery. 14 FMSHRC at 1392. See Commission Procedural Rule
56(b), 58 Fed. Reg. 12158 (March 3, 1993; effective May 3, 1993), to be
codified at 29 C.F.R . § 2700.56(b)(discovery permitted of any relevant matter
that is admissible evidence or appears likely to lead to the discovery of
admissible evidence).
We disagree, however, with the judge's determination that a qualified
informant's privilege did not attach to the information sought by the
operator. The judge concluded that Gregory had apparently been identified as
an informant because he was named as a discriminatee in the NLRB proceeding

2235

and, thus , any claim of privilege had been waived. July 20 Order at 3. In
fact, as discussed below, Gregory was not named in the NLRB complaint.
Presumably, the judge reached an identical conclusion as to Peters, who was
actually named in the NLRB complaint.
In general, an individual's claim to the protection of the informant's
privilege may be waived if he is identified or otherwise revealed as an
informant. See generally Roviaro, 353 U.S. at 60 & n.8. The Commission's
decisions, however, have recognized the importance of this privilege. See
Asarco II, 14 FMSHRC at 1327; Bright, 6 FMSHRC at 2522-25. Further, our
Procedural Rule 61 permits disclosure of an informant's identity only in
"extraordinary circumstances." Accordingly, we will not consider that an
informant has been identified or the privilege waived except where there is an
express identification of an individual as an informant or an express waiver
of that individual's claim of privilege. See, ~. Dole v. Loe. 1942. IBEW,
870 F.2d 368, 375 (7th Cir. 1989).
Here, the UMWA, not Gregory or Peters, was the charging party in the
NLRB proceeding. Although the judge indicated that Gregory had been named as
a discriminatee in the NLRB's unfair labor practice complaint, Gregory is not
mentioned in that complaint. While Peters is included therein as a
discriminatee, as the NLRB notes, such inclusion is not tantamount to
disclosure of Peters as an informant. See NLRB Reply Br. at 5-6. Other
sources of information regarding Peters were available to the NLRB, and we
hold that, in the circumstances presented, Peters' inclusion in the NLRB
complaint does not, in itself, constitute identification of him as an
informant or a waiver of the privilege.
Accordingly, we conclude that neither Gregory nor Peters has been
expressly identified as an NLRB informant and that the informant's privilege
has not been waived as to either individual. Therefore, we hold that a
qualified privilege exists as to whether either Gregory or Peters gave an oral
or written statement t o the NLRB. We reverse as legal error the judge's
determination t o t he contrary.
We remand this matter to the judge so that he may carry out the required
balancing of competing interests pursuant to Bright. 5 The privilege protects
information that would disclose whether the complainants gave statements to
the NLRB and is to be balanced against the operator's need for that
information.
The judge shall permit the NLRB, as the custodian of any such statements, to be heard on its need to maintain the privilege to protect the public
interest and its own enforcement responsibilities under the NLRA. The judge
shall evaluate Thunder Basin's need during discovery for information that
would disclose whether complainants were NLRB informants and whether that need
cannot be satisfied adequately at trial, if either complainant is called to
5

While some language in the judge's orders suggests balancing, his
conclusions appear to rest on his determination that the privilege had been
effectively waived.

2236

testify.

See Asarco I, 12 FMSHRC at 2561 n.3.

If the judge determines in his analysis pursuant to Bright that the
information is not discoverable, the judge may at trial order disclosure of
informants' statements. See generally Jencks v. United States, 353 U.S. 657,
667-69 (1957); 18 U.S.C. § 3500 (1988)(Jencks Act). We note that the NLRB
itself turns over at trial, for cross-examination purposes , a witness's prior
statements relative to the subject matter of his testimony. 29 C.F.R. §
102.118(b)-(d)(NLRB "Jencks" procedure).
We reject the argument raised by Thunder Basin and industry amici that
the informant's privilege cannot be invoked by the Secretary because the
operator sought the information directly from the complainants and not from
the government. The Secretary here, in representing the alleged discriminatees, is carrying out his enforcement responsibilities under section
105(c)(2) of the Mine Act. The informant's privilege is essentially the
government's right to withhold certain information to protect individual
informants. Bright, 6 FMSHRC at 2522-23.
If the judge concludes on remand that the informant's privilege
outweighs the operator's need for the information during the discovery phase,
he need not reach the official information privilege and shall order this case
to proceed. If he finds that the informant's privilege should yield, he shall
resolve the official information privilege issue before directing disclosure
of the information sought.
D.

Official Information Privilege

The NLRB argues that any statements given to it by Gregory and Peters
are protected by the official information privilege. As the operator and
industry amici assert, this issue is raised for the first time on review and
was not presented to the judge. Section 113(d)(2)(A)(iii) of the Mine Act, 30
U.S.G. § 823(d)(2)(A)(iii), bars the Commission, unless good cause is shown,
f rom considering questions upon which a judge had not been afforded an
opportunity to pass. We conclude that , in the unusual circumstances
presented, good cause has been shown. This matter was dismissed during the
discovery stage. We believe that the NLRB, as a practical matter, could not
have been expected to intervene prior to the judge's dismissal order.
Therefore, we will permit the NLRB and the other parties to be heard on remand
regarding this issue.
The official information privilege protects governmental investigative
files. Friedman v. Bache Halsey Stuart Shields. Inc., 738 F.2d 1336, 1341
(D.G . Cir. 1984). This privilege prevents the unwarranted disclosure of
documents from law enforcement investigatory files as well as testimony about
that information. In re Sealed Case, 856 F.2d 268, 271 (D.C. Cir. 1988). The
reason for protecting investigative files is similar to that for the
informant's privilege: the need for free disclosure to the government. In
general, this privilege may be invoked in Mine Act proceedings. See ~
Sample Cases, 14 FMSHRC at 1008-09. We remand so that the judge may determine
if this privilege has been properly invoked and is applicable in this case.
See Sealed Case, 856 F.2d at 271; Dust Sample Cases, 14 FMSHRC at 999-1001,

2237

1009. The official information privilege, like the informant's privilege, is
qualified and is subject to a similar balancing of the government's interest
in non-disclosure and the operator's need for the information prior to
hearing. Sealed Case, 856 F.2d at 272. On remand, the judge shall determine
and apply the appropriate factors for a balancing analysis.
E.

Additional Discovery Protection

In the event the judge determines that neither privilege outweighs the
operator's need for information now, he shall order disclosure. We concur
with the other protections set forth by the judge in his discovery orders.
Should disclosure be ordered, the Secretary shall protect against the
disclosure of the names of other informants. The operator is entitled to
pursue only the specific information previously recognized by the judge in his
discovery orders. 6 See 14 FMSHRC at 1392.

6 The operator and industry amici contend that sustaining the Secretary's
claim of privilege would conflict with the Memorandum of Understanding executed
by the Secretary and the General Counsel of the NLRB (45 Fed. Reg. 6189 (January
25, 1980))("MOU"), which states that the NLRB should "defer or dismiss" an unfair
labor practice charge whenever a complaint related to the same factual matters
is also brought under section lOS(c) of the Mine Act. The record contains no
evidence that the two sets of complaints are factually identical. In any event,
we conclude that the MOU is not binding on either agency . See generally Brock
v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 536-37 (D.C. Cir. 1986).

2238

III .

Conclusion
For the foregoing reasons, we vacate the judge's July and August 1992
discovery orders and his dismissal order of August 14, 1992. This matter is
reinstated and is remanded to the judge for further proceedings consistent
with this opinion .

L . Clair Nelson, Commissioner

2239

Distribution
Colleen A. Geraghty, Esq.
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Charles W. Newcom, Esq .
Sherman & Howard
3000 First Interstate Tower North
633 Seventeenth St.
Denver, CO 80202
for Thunder Basin
Rosemary M. Collyer, Esq .
Ellen B. Moran, Esq .
Crowell & Moring
1001 Pennsylvania Ave., N. W.
Washington , D. C. 20004
for American Mining Congress
and National Coal Assn.
Edward M. Green, Esq.
Mark E. Ellis, Esq.
American Mining Congress
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036
William Hynan, Esq.
National Coal Association
1130 17th Street, N.W.
Washington , D.C. 20036
Margery E. Lieber, Esq.
Martin M. Eskenazi, Esq.
National Labor Relations Board
1717 Pennsylvania Ave., N.W.
Washington, D.C. 20570
Lloyd Loomis, Esq.
ARCO - Thunder Basin Coal Co.
515 South Flower, Room 4500
Los Angeles, CA 90071
Administrative Law Judge Michael Lasher, Jr.
Federal Mine Safety & Health Review Commission
280 Federal Building
1244 Speer Boulevard
Denver, CO 80204

2240

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

November 16, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No . KENT 91-187

v.

DANIEL LEE COAL CO., INC.
BEFORE:

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

BY THE COMMISSION:
Chief Administrative Law Judge Paul Merl in has referred to the
Commiss ion the Secretary of Labor's Motion to Correct Clerical Error in an
order he issued on June 10, 1992. The judge's order became a final order of
the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l). Under
Commission Procedural Rule 69(c), 58 Fed. Reg. 12158, 12171 (March 3, 1993),
to be codified at 29 C.F.R. § 2700.69(c)(l993), a judge may correct clerical
errors in a final order with leave of the Commission. Upon consideration of
the Secretary's motion, it is granted. We reopen the case, remand the matter
to the judge, and grant him leave to correct the error.

Arlene Holen, Chairman

~~

1

Richard V. Backley,

Commissio~

, /- ! ' '.
'--·-7I .
,'°J~J..... ,;,\._ . ._ ·\._· I \. . . L . l/~'--,·\j
L. Clair Nelson, Commissioner

2241

Distribution:
Mary Sue Taylor, Esq.
Office of the Solicitor
U. S. Department of Labor
2002 Richard Jones Rd.
Suite B-201
Nashville, TN 37215
Douglas N. White, Esq .
Office of the Solicitor
U. S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Mr. Harold D. Bolling , Representative
Daniel Lee Coal Company , Inc.
135 West Main St.
Whitesburg, KY 41858
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review
Commission
1730 K Street , N. W., Suite 600
Washington , D. C. 20006

2242

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

20006

November 17, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. CENT 91 - 202

PITTSBURG & MIDWAY COAL MINING
COMPANY

BEFORE:

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

DEC IS ION

BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Saf ety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ( "Mine Act " or "Ac t"). The
issue is whether a violation of 30 C.F.R. § 77.400(a) 1 by Pittsburg & Midway
Coal Mining Company ( "P&M") was of a significant and substantial ("S&S")
nature. 2 Administrative Law Judge John J. Morris concluded that the
v iol ation was not S&S. 14 FMSHRC 1941 (November 1992)(ALJ). The Commission
granted t he Secretary's petition for discretionary review of that finding. 3

1

Section 77.400(a) requires:
(a) Gears; sprockets; chains; drive, head, tail,
and takeup pulleys; flywheels; couplings; shafts;
sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons, and
which may cause injury to persons shall be guarded.

2

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

§ 814(d)(l), which distinguishes as more serious in nature any violation that

"could significantly and substantially contribute to the cause and effect of a
mine safety or health hazard .... "
3

In his decision, the judge ruled on two other citations issued to P&M.
Because the citations were issued in different areas of the mine, involved
different facts, and alleged dissimilar violations of the Secretary ' s safety
standards, we have is sued a separate decision for each citation.

22 4 3

For the reasons that follow, we vacate the judge's conclusion that the
violation was not S&S and remand for further proceedings.
I.

Factual and Procedural Background
On March 27, 1991, Donald Jordan, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), inspected P&M's
preparation plant at its York Canyon Mine in Colfax County, New Mexico. A 36inch wide metal grating walkway was 12 to 18 inches from the feeder slide.
The walkway handrail was approximately 40 inches high on the side closest to
the feeder slide; a concrete wall was on the other side. Jordan determined
that the feeder slide was not guarded in conformance with section 77.400(a) to
prevent persons from contacting its moving parts. Jordan issued a section
104(a) citation to P&M for its failure to guard the feeder slide, and
designated the violation S&S.
Before the judge, P&M conceded-- the violation but contested the S&S
designation. In concluding that the violation was not S&S, the judge found
that there was not a reasonable likelihood that the hazard contributed to
would result in an injury. 14 FMSHRC at 1948. The judge reasoned that, if a
person were to slip on the walkway, he would most likely steady himself on the
adjacent handrail. Id.
II.

Disposition
A violation is S&S if, based on the particular facts surrounding the
violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or illness of a reasonably serious nature . Cement
Division . National Gypsum Co., 3 FMSHRC 822, 825 (April 1981). In Mathies
Coal Co., 6 FMSHRC 1 (January 1984), the Commission explained:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial ... , 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.
6 FMSHRC at 3-4. See also Austin Power. Inc. v. Secretary, 861 F.2d 99, 10304 (~th Cir. 1988), aff'g 9 FMSHRC 2015, 2021 (December 1987)(approving
Mathies criteria). The Commission has held that the third element of the
Mathies formula "requires that the Secretary establish a reasonable likelihood
that the hazard contributed to will result in an event in which there is an
injury." U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984)(emphasis in

2244

original). In finding that the violation was not S&S, the judge concluded
that the Secretary had failed to prove the third element of the Mathies test.
14 FMSHRC at 1948.
On review, the Secretary contends that the judge's conclusion is not
supported by substantial evidence in the record. 4 He argues that the judge
failed to consider evidence that maintenance or repair workers, through
inattention or carelessness, could contact the slide's moving parts while
working on or near the unguarded machinery. According to the Secretary, the
judge failed to consider that the walkway is only 36 inches wide, 5 is often
wet or dusty, and is flanked on the other side by a concrete wall.
P&M argues that the Secretary did not carry his burden of establishing
the reasonable likelihood of an injury and submits that a generalized concern
that maintenance workers may work around unguarded equipment does not by
itself support an S&S designation.
We agree with the Secretary that the judge's decision did not addres s
the hazards facing maintenance and repair workers. The judge focused solely
on the hazard of miners slipping on the walkway and contacting the slide's
moving parts. Inspector Jordan testified that the violation was S&S because
someone reaching toward the unguarded feeder slide to grease or clean it could
become entangled in the moving parts and be seriously injured. Tr. 32-33.
P&M's safety manager, Michael Kotrick , acknowledged that a miner is assigned
to clean around the feeder slide one to three times each shift and that a
repairman may also work on the feeder slide as needed. Tr. 77.
The judge determined that the adjacent handrail would most likely
provide support to a slipping miner. 14 FMSHRC at 1948. Kotrick conceded,
however, t hat the handrail, consisting of a single metal pipe, did not provide
much of a physical barrier. Tr. 79. In addition, the judge failed to
consider the hazard to miners carrying objects, in which case the handrail
might not provide protection.
Accordingly , we agree that the judge failed to address adequately the
Secreta ry's evidence when he determined that it was not reasonably likely that
the hazard contributed to by the violation would result in an injury . A judge
must analyze and weigh the relevant testimony of record, make appropriate
findings, and explain the reasons for his decision. Anaconda Co., 3 FMSHRC
299, 299 -300 (February 1981) . The substantial evidence standard of review
requires the Commission to weigh all probative evidence and to examine the
('
The Commission is bound by the terms of the Mine Act to apply the
substantial evidence test when reviewing an administrative l aw judge's decision.
30 U.S.C. § 823(d)(2)(A)(ii)(I). "Substantial evidence" means "such relevant
evidence as a reasonable mind might accept as adequate t o support [the judge's)
conclusion." Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163 (November
1989), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938).
5

wide.

The Secretary, in his brief, states that the walkway was only 30 inches
The evidence in the record establishes the width at 36 inches. Tr. 77.

2245

fact finder's rationale in arriving at the decision.
Corp. v. NLRJ}, 340 U.S. 474, 487 - 88 (1951).

See Universal Camera

Because we are unable to evaluate the judge's rationale in light of the
Secretary's evidence, we vacate his conclusion that the violation was not S&S
and remand for further analysis of that issue. If the judge finds that the
violation is S&S, he should reconsider the appropriate civil penalty.
III.

Conclusion
For the foregoing reasons, we vacate that part of the judge's decision
in which be found that P&M's violation of section 77.400(a) was not S&S. We
remand this case for further proceedings consistent with this decision.

Arlene Holen, Chairman

L. Clair Nelson, Commissioner
Distribution
Tana Adde, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
John W. Paul, Esq.
Pittsbur g & Midway Coal l-tining Co .
6400 South Fiddler's Green Circle
Englewood , CO 80111
Administrative Law Judge John Morris
Federal Mine Safety & Health R~view Commission
1244 Speer Boulevard, Suite 280
Denver, CO 80204

2246

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

November 17, 1993

SECRETARY OF l.ABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 91-197-A

v.

PITTSBURG & MIDWAY COAL MINING
COMPANY

BEFORE:

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

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq (1988)( "Mine Act" or "Act" ). The
issue is whether Pittsburg & Midway Coal Mining Company ("P&M") violated 30
C.F.R. § 77.410(a)(l990) 1 and, if so , whether the violation was significant
and substantial in nature ("S&S ") . 2 Administrative Law Judge John J. Morris
i ound that P&M violated section 77.410(a) and that the violation was S&S. 14
FMSHRC 1941 (November 1992)(ALJ). The Commission granted P&M' s petition for

1

Sec t ion 77.410(a) requires, as pertinent:
(a) Mobile equipment such as front-end loaders,
f orklifts, tractors and graders, and trucks, except
pickup trucks with an unobstructed rear view, shall be
equipped with a warning device that -(1) Gives an audible alarm when the equipment is
put in reverse; . . ..

2

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

§ 814(d)(l), which distinguishes as more serious in nature any violation that

"could significantly and substantially contribute to the cause and effect of a
. . . mine safety and health hazard .... "

2247

discretionary review, which challenges both these findings. 3 For the reasons
that follow, we vacate the judge's decision and remand for further
proceedings.
I.

Factual and Procedural Background
On February 25, 1991, Inspector Donald Jordan of the Department of
Labor's Mine Safety and Health Administration ("MSHA") inspected P&M's York
Canyon surface mine in Colfax County, New Mexico. Jordan inspected an
explosives supply truck around which miners were working. Jordan determined
that the audible alarm, which sounds when the truck is in reverse (the "backup
alarm"), was not working. As a result, Jordan issued a citation to P&M under
section 104(a) of the Mine Act, 30 U.S.C. § 814(a), charging P&M with a
violation of section 77.410(a). Jordan designated the violation S&S.
Because he found that the truck had an inoperative backup alarm, the
judge affirmed the citation. 14 FMSHRC at 1945. He also found the violation
to be S&S because miners work in close"proximity to the truck and because a
truck backing into a miner would cause reasonably serious injuries or a
fatality. Id.
II.

Disposition
P&M argues that, because the vehicle is a pickup truck, a backup alarm
is not required if there is an unobstructed rear view and here the judge found
a relatively clear rear view. See 14 FMSHRC at 1945. In challenging the
judge's S&S finding, P&M asserts that the judge erred in failing to address
whether the violation presented a reasonable likelihood of injury and in
f ailing to address how the relatively clear rear view would bear upon the risk
of injury.
The Secretary concedes that, because the judge applied an outdated
standard, the case should be remanded for further analysis. The Secretary
argues, however, that , because the truck did not have an unobstructed rear
view , P&M violated the standard and the violation was S&S .
We agree that the standard applied by the judge was not in effect when
the citation was issued. See 14 FMSHRC at 1944 n.2; 30 C.F.R. § 77.410
(1988). Effective September 18, 1989, an exception was provided to the backup
alarm requirement for "pickup trucks with an unobstructed rear view." 54 Fed.
Reg. 30515, 30517 (July 20, 1989).

3
In his decision, the judge ruled on two other citations issued to P&M.
Because the citations were issued in different areas of the mine, involved
different facts, and alleged dissimilar violations of the Secretary's safety
standards, we have issued a separate decision for each citation.

2248

Because the judge relied upon an outdated standard, he did not determine
whether the exception provided in section 77.410(a) should be applied. We
remand this case to the judge for that determination. If the judge finds that
P&M violated the standard, he should determine whether the violation was S&S
and assess an appropriate civil penalty.
III.

Conclusion
For the foregoing reasons, we vacate that part of the judge's decision
in which he found that P&M violated section 77 . 410(a) and that the violation
was S&S . We remand this case for further proceedings consistent with this
decision.

Arlene Holen , Chairman

~~~
Richard V. Backley, Commissioner

J¥.~cog;ion~
~':!~

2249

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

November 17, 1993
SECRETARY OF I.ABOR ,
MINE SAFETY AND HEALTH
ADMI NISTRATION (MSHA)
Docket No. CENT 91-197 - B

v.

PITTSBURG & MIDWAY COAL MINING
COMPANY

BEFORE:

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

DECISION

BY THE COMMISS I ON:
This c ivil penalty proceeding arises under t he Federal Mine Safety and
Health Act of 1977 , 30 U.S.C. § 801 et seq. (1988)( "Mine Act" or "Act" ). The
issue is whether Pittsburg & Midway Coal Mining Company ("P&M") violated 30
C.F.R. § 77.1104, 1 and, if so, whether the violation was significant and
s ubstantial in nature ("S&S"). 2 Administrative Law Judge John J. Morris
concluded that P&M had not violated section 77.1104. 14 FMSHRC 1941 (November
1992)(ALJ). The Commission granted the Secretary's petition for discretionary
review of that finding. 3 For the reasons that foll ow, we vacate the judge 's
decision and remand for further proceedings.

Section 77.1104 requires:
Combustible materials, grease, lubricants, paints,
or flammable liquids shall not be allowed to accumulate
where they can create a fire hazard.
2

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

§ 814(d)(l), which distinguishes as more serious in nature any violation that

"could significantly and substantially contribute to the cause and effect of a
mine safety or health hazard .... "
3

In his decision, the judge ruled on two other citations issued to P&M.
Because the citations were issued in different areas of the mine, involved
different facts, and alleged dissimilar violations of the Secretary's safety
standards, we have issued a separate decision for each citation.

2250

I.

Factual and Procedural Background
On February 25, 1991, Donald Jordan, an inspector of the Department of
Labor's Mine Safety and Health Administration ("MSHA"), inspected a building
housing ~ coal transfer point at P&M's York Canyon surface mine in Colfax
County, New Mexico. Jordan observed accumulations of float coal dust mixed
with oil on the flat metal surfaces of two 460-volt A.C. energized motors.
Float coal dust and oil had also accumulated on the floor surrounding the
motors.
Jordan determined that the accumulations violated section 77.1104 and
issued a citation under section 104(a) of the Mine Act, 30 U.S.C. § 814(a).
Jordan designated the violation S&S.
The judge held that, in order to prove a violation, the Secretary was
required to show that a fire hazard had been created by the accumulations of
combustible materials . 14 FMSHRC at 1946. The judge concluded that the
Secretary did not prove a violation because he failed to establish the
presence of an ignition source and fuel to support a fire. 14 FMSHRC at 1947.
Accordingly, the judge vacated the citation. Id.
II.

Dispos ition
The Secretary argues that the judge applied an erroneous legal analysis
in determining whether a violation had occurred. The Secretary asserts that,
under section 77.1104, he need only prove that a hazard could arise, not that
the hazard probably would arise and result in an injury. The Secretary asks
the Commission to remand the case to the judge to apply the proper standard of
proof in determining whether a violation occurred and to determine whether the
violation, if found, was S&S. 4 I n response, P&M argues that the Secretary
did not carry his burden of proving that the materials observed by the
inspector violated the safety standard.
The judge relied upon the Commission's decision in Texasgulf. Inc., 10
FMSHRC 498 (April 1988), i n which the Commission analyzed whether a
"confluence of factors" created a fire hazard that was S&S. 14 FMSHRC at
1946. The judge stated that he relied upon Texasgulf because it contained "an
analytical approach useful for determining the reasonable likelihood of a
combustion hazard resulting in an ignition or explosion." Id. The judge
credited the testimony of P&M's safety manager, Michael Kotrick , who testified

4

A violation is properly designated as S&S "if, based on the particular
facts surrounding that violation, there exists a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a reasonably serious
nature." Cement Division. National Gypsum Co., 3 FMSHRC 822, 825 (April 1981).

2251

as to the conditions necessary for a fire and the flammability of the
accumulations. Id.
Section 77.1104 prohibits accumulations that "can create a fire hazard . "
The Secretary states that he is required "to prove that a hazard could arise"
and that the "cited conditions created a possibility of fire. " S. Br. at 5, 6
(emphasis in original). In considering whether P&M violated the regulation,
the judge essentially required the Secretary to prove that an ignition or
explosion was reasonably likely to occur. Thus, we agree with the Secretary
that the judge erred in his analysis in imposing on the Secretary a greater
burden of proof than is required by the standard. However, the Secretary has
failed to set forth what he believes is necessary to establish a violation.
Because the Secretary provides little additional guidance beyond
repeating the language of the standard, we are unable to evaluate the merits
of his position. Accordingl y, we remand this proceeding to the judge to allow
the parties to supplement their briefs concerning the meaning and scope of
section 77.1104. The judge should then determine whether P&M violated that
section; if so, he should consider ~hether the violation was S&S and assess an
appropriate civil penalty.
III.

Conclusion
For the foregoing reasons, we vacate that part of the judge's decision
in which he found that P&M did not violate section 77.1104. We remand this
c ase for further proceedings consistent with this decision.

Ar lene Holen, Ch airman

L. Clair Nelson, Commissioner

2252

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

20006

ifovember 38,

19~:.

SECRETARY OF LABOR,
MI NE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. I.AKE 93-64-M

v.
CEDAR I.AKE SAND & GRAVEL
COMPANY, INC.
BEFORE:

Holen, Chairman; Backley, Doyle , and Nelson , Commis sioners

ORDER
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 801 et seq. (1988) ( "Mine Act"). On August 27,
1993, Chief Administrative Law Judge Paul Merlin issued an Order of Default to
Cedar Lake Sand & Gravel Co., Inc. ( "Cedar Lake") for failing to answer the
civil penalty proposal filed by the Secretary of Labor or the judge' s June 24,
1993, Order to Show Cause. The judge assessed a civil penalty of $100 as
yroposed by the Secretary. For the reasons that follow, we vacate the default
order and remand the case f or further proceedings.
In a le tter to the judge dated September 1, 1993, Cedar Lake sought
rel ief from the default order. It asserted that it had timely responded to
the j udge 's show cause order in that it had sent a letter on June 29 , 1993, to
~he Office of the Regional Solicitor of the Department of Labor.
Cedar Lake
enclosed a copy of that letter.
The judge ' s jurisdiction over this case terminated when his decision was
issued on August 27, 1993. Commis s ion Procedural Rule 69(b), 58 Fed. Reg.
12171 (March 3, 1993), to be codified at 29 C.F.R. § 2700.69(b)(l993). Due to
c l erical inadvertence, the Commission did not act on Cedar Lake ' s letter of
September 1, 1993 , within the required statutory period for considering
reques ts for discretionary review and the judge's decision became a final
decision of the Commission 40 days after its issuance. 30 U.S.C. § 823(d)(l).
On November 3, 1993, Cedar Lake again wrote to the judge seeking r elief from
the default order.
Relief from a final Commission judgment or order on the basis of
inadvertence, mistake, surprise or excusable neglect is available to a party
under Fed. R. Civ. P. 60(b)(l). See 29 C.F.R. § 2700.l(b)(Federal Rules of

2253

Civil Procedure apply "so far as practicable" and "as appropriate ," in absence
of applicable Commission rules). Lloyd Logging , Inc., 13 FMSHRC 781, 782 (May
1991). We reopen this proceeding and consider Cedar Lake's September 1 letter
as a timely filed Petition for Discretionary Review, which we grant.
On the basis of the present record, we are unable to evaluate the merits
of Cedar Lake's position. In the interest of justice, we remand the matter to
the judge, who shall determine whether default is warranted. See Hickory Coal
Co., 12 FMSHRC 1201, 1202 (June 1990).
For the reasons s e t forth above, we reopen this matter, vacate the
judge's default order and remand this matter for further proceedings.

Arlene Holen , Chairman

~-z/l1~t
Richard V. Backley , Co~r

~-<Al~
oyce:Doyle, CommiSSiOr

L. Clair Nelson, Commissioner

Distribut ion
Bruce Gilbert
Cedar Lake Sand & Gravel Company
5189 Aurora Rd., Hwy. 41
Hartford, WI 53027
Rafael Alvarez , Esq .
Office of the Solicitor
U. S. Departmen t of Labor
230 S. Dea r born St .• 8 t h Fl.
Chicago . IL 60604
Chie f Adminis trat i v e Law J udge Paul Merlin
Federal Mine Safety & Health Review Commiss ion
1730 K Street , N. W.
Washington , D.C.
20006
2254

ADMINISTRATIVE LAW JUDGE DECISIONS

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

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

v.

11993
CIVIL PENALTY PROCEEDINGS
:

Docket No. WEVA 92-1050
A.C. No. 46-01968-04015
Blacksville No. 2 Mine

CONSOLIDATION COAL COMPANY,
Respondent

Docket No. WEVA 92-1156
A.C. No. 46-01452-03873 R
Arkwright No. 1 Mine
DECISIONS

Appearances :

Wanda Johnson, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Daniel E. Rogers, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Befor e :

Judge Koutras
Statement o f the Proceedings

These p roceedings c oncern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
to section llO(a ) of the Federal Mine Safety and Health Act of
1977 u 30 U.S. C. § 82 0( a) , seeking civil penalty assessments for
several alleged v iolations of certai n safety standards found in
Part 75 , Titl e 30 , Code o f Federal Regulations . The respondent
fi led t imely answers and contests and hearings were conducted in
Morga ntown , We s t Virginia . The parties fi led posthearing briefs ,
a nd I have c onsi dered their arguments in the course of my
adj udication of these matters .
Issues
The issues presented in these cases are (1) whetber the
conditions or practices cited by the inspectors constitute
violations of the cited mandatory safety standards , (2) whether
the alleged violations were "Significant and Substantial " (S&S),
(3) whether the alleged violations were the result of an
unwarrantable failure by the respondent to comply with the cited
standards, and (4) the appropriate civil penalties to be assessed
22 55

for the violations, taking into account the civil penalty
assessment criteria found in section llO(i) of the Act.
Stipulations
The parties stipulated as follows in these matters
{Tr. 10-12).
1.

The presiding judge has jurisdiction to hear
and decide this matter.

2.

The subject coal mine is owned and operated
by the respondent, and the mine is subject to
the Act.

3.

The inspector who issued the contested
violations was acting in his official
capacity as an MSHA inspector.

4.

The contested violations were properly served
on the respondent's agents.

5.

The cited conditions and practices were
timely abated by the respondent in good
faith.

6.

The maximum civil penalty assessments for the
violations will not affect the respondent's
ability to continue in business.

7.

MSHA ' s c omputer print-outs with respect to
t he r espondent ' s h istory of prior v iolati ons
for t he two-year period shown may be admi tted
i n t hese proceedings .

The parties agreed that there is no issue with respect to
t he s ection 104{d) "chain" and I conclude and find that the
i ssuance of t he disputed orders was procedurally correct i nsofar
a s the underlying secti on 104 {d) citation is concerned {Tr . 13) .
Discussion
Docket No . WEVA 92-1156
Thi s case concerns proposed civil penalty assessments for
nine {9) alleged violations of certain mandatory safety standards
found in Part 75, Title 30, Code of Federal Regulations, and they
are as follows:

2256

Citation/Order No.

Date

30 C.F.R Section

Assessment

3314179
3113921
3314293
3314297
3307182
3314299
3308049
3306265
3307787

8/23/90
9/6/90
9/6/93
9/7/90
9/10/90
9/10/90
10/11/90
10/ 17/90
10/ 16/90

75.403
75.514
75.1722(a)
75.1003(a)
75.512
75.1722(a)
75.202(a)
75.400
75.400

$192
$329
$213
$213
$625
$213
$213
$178
$616

In the course of several prehearing conference with the
parties, they advised me that settlements were reached with
respect to six (6) of the contested citations. Pursuant to the
proposed settlement, the respondent agreed to pay the full amount
of the proposed assessments for Citation Nos. 3314293, 3307182,
3314299, and 3306265, in settlement of the violations. With
respect to citation No. 3314179, the petitioner agreed to delete
the "S&S" designation and the respondent agreed to pay a reduced
penalty of $115 in settlement of the violation. With regard to
Citation No. 3314297, the petitioner agreed to delete the "S&S"
designation, and the respondent agreed to pay a reduced penalty
of $128 in settlement of the violation. The parties further
advised me that the three (3) remaining violations could not be
settled during their prehearing negotiations and a hearing would
be required. Insofar as the proposed settlements are concerned,
after review of the pleadings and available information
concerning the civil penalty criteria found in section llO(i) of
t he Act , the settlements were approved in the course of the
p retria l conferences , and my decisions in this regard are herein
z-eaff i nned o
I n the course of the hearing in this matter, the parties
further advised me that they proposed to settle Section 104(a)
urs&S" Citation Nos . 3308049 and 313921. Under the terms of the
s ettlement , t he respondent agreed to accept Citation No . 33 08049 ,
a s issued and to pay the full amount of the proposed penalty
assessment of $213 . With respect to Citation No. 3113921,
petitioner's counsel asserted that if this violation were to
p roceed to trial , the evidence would not support the "S&S"
fi nding , and that under the circumstances, she agreed to modify
t he citation to non-"S&S" , and the respondent agreed to pay a
reduced penalty of $197 , in settlement of the violation
(Tr. 21-22). The proposed settlements were approved from the
bench, and my decisions in this regard are herein reaffirmed.
The parties informed me that they were unable to settle the
remaining violation, Section 104(d) (2) Order No. 3307787, and it
proceeded to trial.

2257

Section 104(d) (2) "S&S" Order No. 3307787, issued on
October 26, 1990, cites an alleged violation of mandatory safety
standard 30 c.F.R. § 75.400, and the cited condition or practice
states as follows:
Combustible material in the form of dry float dust has
been permitted to accumulate in varying thickness on
the roof and ribs and a line brattice in the 10 left
belt return air entry to the regulator, a distance of
approximately 300 feet, and outby the regulator through
the intersection and down the 1st Main Butt entry for
approximately 1,000 feet on the roof, ribs, and mine
floor .
Docket No. WEVA 92-1050
Section 104(d) (2) "S&S" Order No. 3312960, issued on
March 19, 1992, cites an alleg~d violation of mandatory safety
standard 30 C.F.R. § 75.1700, and the cited condition or practice
states as follows:
The operator failed to comply with item number one of
the procedures for cutting through a plugged well. The
060-025 longwall shearer intersected and cut into the
steel casing of well #B2-196 on day shift at approx.
1420, 19 March 1992. The engineering spads in the head
and tail entries indicate the well to be approx. 7 feet
deeper in the block then it actually was.
The operator shall submit additions to the cut through
plan whi ch will eliminate the likelihood of a
reoccurrence to the MSHA Dist . Manager p rior to
t ermination of this citation .
Section 104(d) (2) "S&S'' Order No. 3718887 , issued on May 11 ,
1992 , cites an alleged violation of 30 C. F.R . § 75.400 , and the
cited condition or p ract ice states as follows:
Combustible mater ial in the f orm of dry black float
c oal dust has been permitted to accumulate in the 14M
l ongwall tailgate entry as follows: A thick layer of
dry black f loat coal dust was permitted to accumulate
o n the mine floor and on rib sloughudge (sic) and on
r oof support cribs from 7+60 outby to 3+50 . A medium
l ayer of dry b lack float coal dust on floor-rib
sloughage-2nd cribs 3+50 to 0+100. A medium layer of
dry black float dust from the regulator outby for
50 feet and outby for 2 blocks. A total of
approximately 1,000 feet.
In the course of the trial, the parties advised me that they
proposed to settled Order No. 3312960. In support of the

2258

settlement, the petitioner's counsel took note of the fact that
the order had been modified numerous times. She stated that if
the order were to proceed to trial, the evidence would not
support the unwarrantable failure finding. Counsel explained
that the evidence would show that the cited well was
inadvertently cut and that once the respondent became aware of
this, it immediately notified MSHA, and MSHA went to the mine to
investigate. Counsel asserted further that the violation was not
significant and substantial as originally determined, and that
the order should be modified to a section 104(a) non-"S&S"
citation, with a penalty reduction from $1,400, to $550. The
parties agreed to this settlement disposition of the matter, and
the respondent agreed to pay the $550 penalty in settlement of
the violation (Tr. 179-183). The proposed settlement was
approved from the bench, and my bench decision is herein
reaffirmed. The parties confirmed that they were unable to
settle the remaining contested order in this docket, and it
proceeded to trial.
Petitioner's Testimony and Evidence
Docket No. WEVA 92-1156
MSHA Inspector Lvnn A. Workley confirmed that he conducted a
mine inspection on October 26, 1990, and issued the order after
finding the cited float coal dust accumulations deposited over
previously rock dusted surfaces on the mine floor in a return air
course, including the coal ribs, and mine roof, and on a line
brattice and mine ribs and floor at the cited belt conveyor
intersection (Tr . 23-26). As a result of these observations, he
i ssued a closure order on the ten left belt (Exhibit P-1) .
Mr. Workl e y confirmed that at the time of his inspection the
l eft conveyor belt and section were operating {Tr . 28) . He
stated that he found the weekly examiner's initials and the date
for two days prior to his inspection noted on a crib, and he
believed the i nitials "D .F." were those of David Fazio.
Mr. Workley stated further that " he left footpri nts in the float
c oal dust which appeared white to pale grey on a black background
where he walked up to the crib and dated up" (Tr . 28-29).
~en

Mr . Workley stated that he issued the order because the
fl oat coal dust "was very obvious" and the footprints indicated
that the float coal dust was present when the examiner made his
examination two days earlier . Mr. Workley stated that the float
dust posed a hazard to the miners, and that the left conveyor
belt was running and presented an ignition source. Further, the
float coal dust presented "a generous fuel supply", and there was
available air and oxygen in the area, "the three things necessary
for a fire" (Tr. 29).

2259

Mr. Workley stated that the float coal dust accumulations
covered an area of 1,000 feet, and most of the area was black in
color, and the dust was dry and powdery. He confirmed this by
patting the dust with his hand at various locations or blowing on
it with air from his mouth, and "it blew up into a cloud in the
air" (Tr. 30) . He believed that the dry and powdery coal dust,
suspended in the air, contributed greatly to an explosion hazard
(Tr. 30) •
Mr. Workley believed that the accumulations had been present
for several weeks because "it doesn't all accumulate at once" and
he stated that the dust is generated by the ten left longwall
belt conveyor and is carried down the return air course. The
dust accumulates more each shift, and part of the coal dust was
there for at least two weeks (Tr. 31).
Mr. Workley believed that the violation was "significant and
substantial" because the accumulations were adjacent to an active
conveyor belt which contained ignition sources such as bottom
rollers and bearings which can get hot when they wear out and rub
the roller. Mr. Workley believed that it was reasonably likely
that a serious mine fire or potential explosion would occur and
that this would result in serious injuries to one or more miners.
In addition, if the conveyor belt were to run to one side it
would rub against the belt brackets arid it could spark, and the
belt splices could also spark with "steel striking steel" .
Mr. Workley indicated that the inby end of the float coal
accumulations were within five feet of the edge of the conveyor
belt , but there were no ignition sources in the main return air
c ourse o I f there were a hot belt roller, or the belt was
r ubbing , i t c ould cause a fi re . I f a fire were to occur he
believe d i t was reasonably likely that it would ignite the f loat
c oal dust . I f a belt spark were t o occur , he believed i t was
r easonably l ikely that it would ignite the fine coal dust . If an
i gnition were to occur in the belt line, it would propagate into
the ma i n return and through the regulator. If the float coal
dust were to i gni te , there was nothi ng to suppress it from
spreading to these areas because there was no f ire suppression
system in that area (Tr . 3 1-34) .
Mr . Workley was not positive that he examined the preshift
b ooks at the time of his inspection, but he stated that he
08 probably did" and normally does.
He did not believe that he
noted any recorded hazards in the preshift books, and he stated
that he would normally make a note of any reported hazards
(Tr. 35). He -confirmed that he has issued prior float coal dust
accumulation citations or orders ·on the section, and believed
that he issued one at the ten left transfer area three days prior
to his inspection (Tr. 35).

2260

Mr. Workley confirmed that he made a finding of "high
negligence" for the following reasons (Tr. 35-36):
A.

The coal company management is well aware that
operating coal conveyor belts produce float
coal dust and it is carried by the air current,
down the return air course.
A person, certified person, was assigned the job by the

operator to make a weekly examination two days prior to
me finding the accumulation. And his footprints were
evident in the float coal dust, proving it was there
when he walked down through there, and he took no action
to correct it.
Q.

Now, I believe you said that the footprints
where pale gray.

A.

Pale gray to white.

Q.

Pale gray to white.
And based on that, you could tell, you could
make a decision that someone had been through
there?

A.

That is correct .

Q.

Let's say if no one had been through there,
what would it have looked like?

Ao

The f loat coal dust would have been uniform and
black throughout the entire area .

Mr. Workley stated that the respondent was not taking any
action to eliminate the accumulations prior to the issuance of
his order. He confirmed that abatement was achieved in three
days . It took two hours to abate an area of 400 feet , and he
modified the order to a llow the belt to start running again and
bulk dusting machines were brought i n to apply additional rock
dust to the main return entry , and six to eight employees did
this work (Tr . 3 7 )o
On cross-examination, Mr . Workley stated that the minimum
l egal times for examination of the cited return is seven days
between examinations. He confirmed that the area had been
examined two days prior to his inspection, and this was noted by
the date, time, and initials on the crib, and an entry had been
made on the weekly examination book attesting to the examination.
The examiner did not note any problems in the return in the book,
and Mr. Workley did not personally know the examiner, David Fazio
(Tr. 37-38).

2261

Mr. Workley confirmed that he did not know who made the foot
prints, and that he saw no other foot prints. He did not believe
that other foot prints could have been in the return after the
float coal dust accumulated, and did not believe that any one
else walked in the return. He did not cite a violation for any
inadequate examination of the return, but believed that he had
cited the respondent for such a violation in the past (Tr. 39).
When asked what he would have expected of the respondent,
Mr . Workley stated as follows at (Tr. 40):
A.

Provide the margin of safety for the miners
working in that area of the coal mine which
should be provided for them to keep that return
free enough of float coal dust so that a fire
and explosion hazard did not exist.

Q.

Isn't it true that you feel that this
particular return should be examined more often
than once every seven days . Isn't that
correct?

*

*

*

*

*

THE WITNESS: I believe that the operator of
the mine -- If I were the operator of the mine
and I knew that I had a source that generated
fl oat coal dust or some other hazard to the
extent that I needed to make examinations more
f requently than every seven d ays to make sure
~hat a serious hazard did not exist , I would do
S Oo

Q.

That i s not r equired by the regulations .

A.

No , i t ' s not .

Mr . Workl e y confirmed t hat t he a ccumulations i n the entry
n o~ in t he same entry as t he belt , and t hey extended from
~v a por oxi matel v five feet from ·the edge of the belt line to about
::.,, 000 f eet away f rom t he belt l inen (Tr . 41 ). He confirmed that
~e found t wo-t enths of one percent o f methane at the regulator ,
and t hat he detected no hot rollers or a ny heat caused by the
be lt r ubbing . He described the fire detection and suppression
systems installed on the cited beltway (Tr . 42-43).

were

Mr . Workley stated that he concluded that there was two
weeks of accumulati ons in the entry, and that he based this
conclusion on "my experience" . He confirmed that the float coal
dust "was not in depths that could be measured at that location" ,
and t hat it was less than one-sixteenth of an inch thick

2 262

Tr. 43). He described the degree of darkness with respect to the
accumulations at various locations (Tr. 43-44). He confirmed
that the belt entry itself was well rock dusted and that the mine
floor had been "freshly drug" (Tr. 45).
In response to further questions Mr. Workley stated that
although section 75.305, provides for a minimum of seven-day
examination intervals, it also provides for more frequent
exami nations i f needed. He believed that based on the amount of
accumulations, he would make more frequent examinations if he
were the mine operator (Tr. 46).
Although Mr . Workley stated that he has found c o llapsed
rollers wi th missing bearings , steel to steel fricti on, belts
cutting into the stands, and bel ts riding to one side when he has
inspected other conveyor belts at the subject mine and other
mi nes, h e found no such condi tions on the day of his inspection
(Tr. 47) . He also conc eded that he was not positive about the
"more frequent examinations if ···needed" requirement in
secti on 75 .305, and was not sure if thi s was covered by the
regulation, but "it does not say you can't examine i t every day
if you need t o " (Tr. 49).
I n response t o certain bench quest i on , Mr . Workley confi rmed
t hat t he cited conditions d i d not cons titute an imminent danger
even though the three conditions necessary for a fire or
expl osion were prese nt because "the igniti on source has to be
p r esent at the instant t he other two , the fuel and the air, are
p r e sent ". He stated tha t he could not take the time to inspe ct
t he belt t o dete rmi ne if the re was an igni tion source and an
i mminent danger because he was obl iga ted to the miners t o shut
~he belt down so t hat t he a ccumulat ions could be t aken care of
i mmediately. Mr . Worlcley c onf i rmed t hat he c ontacted t he
examiner who he be liev ed ma de the f o otpri nts i n t he dust , a nd t he
examiner o ffe r ed no excuse , d id not state that the a ccumul ations
were not p r esent when he examined the area , a nd was r e luctant t o
speak wit h h i m. Mr . Workl e y believed t hat t he examination book
s howed 01 no h a zard s n 7 a nd he conf irmed t hat Mr . Fr ed Morgan
accompa nied him during his i nspection , bu t he c ould not r ecall
any c omment s made by Mr . Morga n (Tr . 49- 51 ).
Respondent ' s Testimony and Evidence
D. Morga n , mi ne res pirable dust and noise f orema n ,
that h e acc ompani ed I nspector Workley duri ng his
i nspection on Oct ober 26, 1990, and he d e scribed t he areas that
they visited by r eferri ng to a mine map and Mr. Workl ey ' s notes
and cit ati on , and he ag reed that the acc umul ations constituted a
v iol ati on of sec tion 75 .400 (Tr . 59-67).
~ re d
~ est i f ied

Mr. Morgan believed that the c losest dista nce between the
belt and the accumulations cited by Mr. Workley was approximately

2263

70 to 90 feet. Mr. Morgan confirmed that he observed no hot belt
rollers and that a person is stationed at the belt transfer point
to watch for spillings and other occurrences. He also described
the belt fire suppression and detection devices. He saw no part
of the belt rubbing on the conveyor structure, saw no electrical
equipment sparking or arcing, or any ignition sources. Methane
checks reflected one-tenth of one percent (Tr. 68-69).
Mr. Morgan stated that the examination book for the week
ending October 28, 1990, reflects that the cited area was
examined two days prior to the inspection by Mr. Workley and that
no hazards were noted on October 14, 1990. He confirmed that he
knows the examiner David Fazio, and that he is a certified
examiner. He stated that Mr. Fazio was acting in the capacity of
fire boss (Tr. 73-74).
Mr. Morgan explained the routine followed with respect to
"dragging" certain mine areas, and he believed that the coal dust
came from the belts that fed into the returns and that the dry
mine atmosphere dries the dust and it accumulates faster
(Tr. 76-78). Mr. Morgan did not believe the violation was "S&S"
because it was not reasonably likely to lead to death or serious
injury to a miner (Tr. 78).
On cross-examination, Mr. Morgan stated that the belt "was
in good shape" and that it was "white with rock dust and well
rock dusted" (Tr. 79). He stated that he visually observed the
belt area while walking next to it, and he confirmed that the
belt is subject to "wear and tear" if it is rubbing the belt
structure. He confirmed that he was outside of the mine prior to
a ccompany ing Inspector Workley , and that he went underground to
a ccompany h im . He confirmed that he d i d not examine the belt
:=olle r s and onl y made 111 a v isual walk through" in the area . He
did not be lieve t hat the violation was "S&S" because the nearest
i gnition source would have been the 50 to 75 foot belt line
leading to the crosscut and it was "heavily rock dusted and in
good shape" (Tr . 82 ). Mr . Morgan did to recall any coal
a ccumul at i ons on t he ribs , but he did observe accumulations
00 up t he chute and on the line curtai ns"
(Tr . 84).
Mr . Morgan stated that his primary duties are to do noise
s urveys , collect dust samples , and check belt lines and water
s prays . He stated that a running belt can accumulate coal dust
and get on the coal ribs. He indicated on a sketch where he
observed coal dust and float coal dust (Tr. 85-87). He confirmed
that in the course of mining, coal dust can accumulate if the
beit is shut down or the water sprays plug up (Tr. 88).
In response to further questions, Mr. Morgan confirmed that
he observed coal dust on the rib in the area cited by the
inspector and he described the area as the "return area".
However, he did npt observe coal dust on the ribs at the crosscut

2264

leading over to the return. He stated that the crosscut was well
rock dusted, "but they had float dust accumulated on top"
(Tr. 88-89).
Mr. Morgan was recalled by the petitioner's counsel, and he
reiterated that he observed no float coal dust in the crosscut
leading over to the belt recovery chute. He confirmed that in
order to abate the violation, the area outby the recovery chute
had to be dragged "to knock the dust off the curtain", and that
the area from the chute to the regulator had to be swept in order
to remove the float coal dust from the ribs, and he . described the
areas where he observed accumulations (Tr. 91-94). He reiterated
that the accumulations he observed "were at the end of the
crosscut, up the line curtain and in that chute, back to the
regulator" (Tr. 94). He confirmed that he did not observe the
abatement work the entire time and could not state exactly what
was done to abate the violation (Tr. 95). Mr. Morgan believed
that the nearest potential ignition source was the belt line
50 to 70 feet away from the accumulations, and he disagreed with
the inspector's belief that the ignition sources were five feet
away because "the crosscut that the inspector walked through was
clean" (Tr . 96).
Inspector Workley was recalled by the petitioner's counsel,
and he described in detail the areas that were cleaned and swept
to abate the violation and remove all of the cited accumulations.
He confirmed that he abated the violation in two intervals. He
modified the order to allow the belt to run again, and he gave
t he respondent additional time to bring in the bulk rock dust
equipment to r ock dust the main return . Referring to a mine map
sketch , Mr . Workley again described the area where he found the
cited a ccumulations (Tr . 98 - 102). In response to several bench
questions p Mr . Workley stated as f ollows at (Tr . 108-110) :
BY JUDGE KOUTRAS :
Q.

You heard t he t estimony of Mr . Morgan 9
correct?

A.

Yes , I did, your honor .

Q.

He put the potential ignition sources
f urther away than you did . Is there an
explanation for that , why there is such
a disparity in the testimony when you
were both there looking at the same
thing?

A.

As I tried to explain before, Your
Honor, the existence of float coal dust
varies from pale gray through pitch
black. What is recognized by one

2265

person to be a hazardous accumulation
of float coal dust may not be
recognized by another person to be a
hazardous accumulation of float coal
dust.
Mr . Morgan and I agreed that the areas
where the line curtain and the rib were
black was a hazardous accumulation of
float coal dust. Apparently, we did
not agree about the ribs in the
crosscut extending from the belt entry
to the recover chute.

Q.

Now, if he was correct that there was
no float coal dust in the crosscut, his
testimony that the potential ignition
source would be a seventy-foot
distance, would that be an accurate
statement?

A.

Yes, it would, Your Honor.

Q.

But your contention is that that area
in there was float coal dust and you
put it within two feet of a potential
ignition source. Is that correct?

A.

Approximately five feet.

Q.

Five feet , rather . Is that correct?

A.

Yes .

Q.

And the potential ignition source being
what , now , again?

A.

An y s tuck rollers , hot rollers , rollers
with the bearings out on the belt line ,
the belt r ubbing metal structure , metal
to metal fric tion .

Docket No. WEVA 92-1050
MSHA Inspector Lynn A. Workley confirmed that in the course
of an inspection on May 11, 1992, he examined the tailgate entry
o~ the 14-M longwall section which was in the process of mining
coal . He entered the tailgate entry near the regulator through a
man door from the 13-M supply track area, and when he come into
the tailgate entry he encountered float coal dust on the mine
roof, ribs, and floor. He proceeded toward the 14-M longwall
section tail and the float coal got darker and thicker as he

2266

proceeded toward the tail. He identified a copy of the order
that he issued (Tr . 115, Exhibit P-1).
Mr. Workley stated that he issued the order because of the
extent of the float coal dust accumulations and their proximity
to the active longwall. He believed these conditions posed a
serious hazard to all of the miners working the six north area of
the mine, and that the conditions were obvious to an observer
(Tr. 115).
Mr. Workley stated that all of the accumu l at i ons were black
in co l or, and they were fine, dry, and powdery and would be
dispersed in the air when patted with his hand (Tr. 116) . He
confirmed that the accumulations were located in the tailgate
sec tion that was required to be inspected at least once each
week, at maximum seven-day intervals (Tr. 116-117) . He believed
there are times when it should be inspected more often than once
a week, and he indicated that float coal dust tends to accumulate
at frequent intervals at the lohgwall tailgate entry which is a
return air course (Tr. 117).
Mr . Workley stated that an additional reason for issuing the
order was the fact that the certified examiner Charles Underwood
t o l d him that he had examined the entry on May 4, 1992, and
walked and dragged it on May 5 and 6, but was off for three days.
Mr . Underwood also told him that he dragged the entry every shift
because it got d i rty and needed dragging every shift (Tr . 118,
119, 121) .
Mr o Workley stated that it is not unusual for float coal
d u s t to a ccumulate rapidly each shift because of the way the
l ongwall i s mined (Tr o 1 2l) o He b e lieved t h at t he mine cleanup
p rogram require d r ockdusti n g t h e t ai lgate a fter e ach p ass at the
l ongwall face (Tr . 1 2 1 ). Whe n ask e d if t he f a i lure to do this
would constitute a violation of the c leanup plan, Mr . Workley
r esponded as follows (Tr . 121-1 22) ;
J UDGE KOUTRAS : If t hat doesn ' t happen , then they would
be s usceptib l e t o a vi o l ation of t hei r c leanup p lan?
THE WITNESS :
It ' s not MSHA ' s policy o MSHA ' s policy
h as never been to allow inspectors to write violations
o f t he cleanup program .
J UDGE KOUTRAS :
THE WITNESS:

Why not?
I don't know, Your Honor.

JUDGE KOUTRAS : You hit them with unwarrantable failure
orders. That gets their attention more than citing
them for the cleanup plan. I don't understand.
They're required to have a cleanup plan, aren't they?

2267

THE WITNESS:

Yes, your honor.

JUDGE KOUTRAS: And if they don't clean up as the
cleanup plan requires, then why not issue violations
for that?
THE WITNESS:

I do not know, Your Honor.

JUDGE KOUTRAS:

Is that a policy?

THE WITTNESS:

That is a policy.

Mr . Workley stated that he reviewed the weekly examination
books and saw no indication of any accumulations in the cited
area (Tr. 123) . Based on his "experience", he believed that
portions of the accumulations existed for "a shift or two", and
that portions had existed for "several weeks" (Tr. 124). He
described the areas cited in.. the order where he believed the
accumulations had existed for weeks (Tr. 124-12 5 ).
Mr. Workley stated that the tailgate entry could be used as
an emergency escapeway in the event of a fire or emergency
(Tr . 126) . He explained his "S&S" finding as follows at
(Tr . 126-128) :
A.

Each time that the shear cuts to the tail, you
have the bits on the shearing machine which are
high carbon steel, carbide, cutting coal and
hitting stone that is im.bedded in the coal or
in the mine roof or in the floor can create
sparkso So you have an ignition source from
t hat right at the corner of the tailgate entry o
You h ave nine hundred ninet y -nine volts ac
running to the tail conveyor motor and other
electricity coming to the lighting circuits and
t o the electrics on the shield .

Q.

An d y ou said this is when the shear is
operating and cuts over to the tailgate?

A.

That is correct .
It comes right to the tail ,
right where the float dust accumulation
startedo

Q.

An.d approximate ly how many feet would you say
there is between where the float coal dust
started and where the shear comes down to the
tailgate?

A.

Less than a foot.

2268

Q.

And in the normal course of mining, how likely
is it that you would have had an ignition
source or that one of these sources you had
mentioned would have produced a spark?

A.

At least reasonably likely, in my opinion.

Q.

And why is that?

A.

Anytime the bits on the mining machine strikes
rock in the coal face or the mine roof or the
mine floor fire flies off the bits. Those
sparks are hot enough to ignite a methane and
air mixture. They're also hot enough to
initiate an explosion if you have enough float
coal dust in the air. Huge amounts of coal
dust are generated when they're cutting.

Mr. Workley confirmed that it was not unusual for dust to
generate when the shear is cutting the longwall face, and
although water sprays are available to control the dust, they can
go off at any time. He stated that if a fire or explosion were
to occur, seven or eight people on the longwall section would be
exposed to injury .
If float coal dust were ignited and
propagated an explosion or serious injuries or death would result
(Tr . 129).
Mr. Workley explained the basis for his "unwarrantable
failure" finding as follows at (Tr. 129-130):
A.

Management of the mine is well aware that the
~l oat dust generating source is there . They are
a ware of t he mi n i n g l aws requiring that the
f loat dust b e k ept to a minimum, cleaned up ,
rock dusted over top of , not allowed to
accumulate , and they didn't do it.

Q.

Does t hat r equirement e xcuse an operator from
fu lfill ing more requirements t ill they become
necessary ?

A.

No , it does not .

Q.

And in your opinion , in this situation, more
care would have been required than a regular
weekly examination?

A.

That is correct.

Mr. Workley confirmed that the order was abated in
approximately two hours and that eight people assisted in abating

2269

the order (Tr. 130). He described the rock dusting work that was
done to abate the order (Tr. 131-133).
On cross examination, Mr. Workley stated that float coal
dust will not ignite unless it is "agitated, put up in the air".
He confirmed that he did not see much dust in the air when he
inspected the tailgate. He also confirmed that he tested for
methane and found "zero at shield ten, two-tenths of one percent
at the tail, " and that the explosive concentration of methane is
5 to 15 percent (Tr. 135) .
Mr . Workley stated that the regulations do not require that
a longwall tailgate entry be examined more than once a week. He
confirmed that an examination was made on May 4, and that he
conducted his i nspection May 11 . He confirmed that he met Ron
Neeley in the tailgate entry shortly after he issued the order
and that Mr . Neeley was in the process of conducting the weekly
examination in the tailgate area.
In response to a question as to whether he would have issued
a (d) order if he had arrived on the section after Mr. Neeley and
found him conducting his examination Mr. Workley responded "it
would depend on what action Mr . Neeley had taken" (Tr. 137) .
Mr . Workley confirmed that his belief that "more care is required
than a weekly examination on tailgate entries" is not a part of
a ny regulation. The regulation requires a weekly examination as
a minimum requirement (Tr . 138) .
Mr . Workley believed that the accumulations. had existed "for
weeks" , and he described the areas where the float coal dust was
an eigt h of an i nch thick and b e lieved t hat it had existed for
" two or three weeks 9' . The area described as containing a "medium
·::hicJc 9 ~ laye r of float coal dust existed for " a week", and the
area containing a " thin layer" existed for "a couple of days "
(Tr . 14 0-142 ). He stated that he returned to the cited area the
n ext day after abatement and that the area was "white to very
:;>ale g ray ov wi th no appreciable accumulation of fl oat coal dust
( T:::-. :A.43).
Mr. Worl{ley s tated that the thickness of the float coal dust
would be 99 probably the most determining fac tor" as to how long it
h ad existed (Tr. 144). He confirmed that he reviewed the weekly
examination b ook before his inspection and found the initials of
Charles Underwood (Tr. 145) .
In response to further questions, Mr . Workley stated that
quantity of coal dust generated is not strictly a measure of
time, and that other conditions, including increased production,
could generate a lot of dust (Tr. 146-147).
t~e

Mr. Workley confirmed that the cited standard says nothing
about a "minimum" requirement and says "at least once each week,

2270

maximum seven-day intervals". He stated that the regulation does
not require examinations more than once a week and that he
confused it with section 75.304 (Tr. 148). He confirmed that he
was unaware of any ignitions every occurring at the longwall face
(Tr. 153).
Ronald E. Thomas, mine safety escort, testified that he
accompanied Mr . Workley during his inspection on May 11, 1992.
They walked the 750 foot entry, and Mr. Workley informed him that
he was issuing an order due to the float coal dust conditions
(Tr . 158-159) . He stated that Mr. Workley cited an· area of
350 feet. He conceded that the tailgate entry had float dust on
i t and that 11 it needed some attention", and that "we were mining
and there was still being float dust dispersing through this
return air" (Tr. 159-160) .
Mr. Thomas stated that he observed no ignition sources as
they walked across the longwall· face. . Al though Mr. Workley cited
a loose light fixture at the 1/13 shield, Mr. Thomas did not
believe it was an ignition source because it was "l ow rated
voltage. It's essentially a safe voltage" (Tr. 161) .
Mr. Thomas stated that the dust generated by the longwall
shear is rock dusted periodically down the entry and that persons
are not permitted inby the shear where the dust is generated
(Tr. 161). He also indicated that a bantam duster is operated
during the shift at the mouth of the tailgate entry to control
the dust (Tr. 162-164).
~rom

Mr . Thomas stated that the weekly examination is conducted
Monday through Monday . He confirmed that while he was with

J:.1r. Workley r t:hey e ncountered the weekly examiner , Ron Neeley ,
bu;.: t.he order h a d already been issued at that time (Tr . 165 - 166 ) •

On cross-examination, Mr . Thomas confirmed that he did not
personally see the rock dusting taking place after the shear had
·taken a cut at the l ongwal l (Tr . 166) . He confirmed that
Mr . Neelev noted in the examination book that vr the area needed to
be drug ~' 7 -but Mr. Thomas d id not believe that a sweep down was
necessary (Tr . 169) . In response to further questions ,
Mr. Thomas identified copies of the examination book entries for
May 4, and 11 , 1992 (Exhibits R- 1 and R-2). Mr. Underwood ' s
entry shows "no violations, no hazardous conditions" for May 4,
and Mr. Neeley ' s notation shows nneeded drug" for the 14 -M left
t ailgate entry return (Tr. 171).
Inspector Workley was recalled , and he stated as follows at
(Tr. 178-179):
Q.

Would you please clarify for us why you said
that you walked down a certain side versus the
side that Mr. Thomas stated that he walked?

2271

A.

This order was issued a little over a year ago.
My memory is not that good, but I did write
details, naturally, the best I could write on
the day that the inspection was conducted. And
I do have the notes in front of me.
And they clearly indicate that I examined the
longwall face, down to the tailgate; went back
to one/fourteen shield; waited while the
mechanic repaired the light cord on the shield;
went back across the face; entered the intake
air escapeway; walked to cotton shaft; walked
the supply track, back to 14-M mouth; then
walked back down to 13-M, and entered the
tailgate entry on the 13-M side; and examined
from there toward the 14-M tailgate.

Q.

And you say that is written in your notes?

A.

Yes, it is.

Q.

Now, also, the fact that the presence of these
accumulations was not recorded in the weekly
book, does that necessarily establish that the
area was clean?

A.

No, it does not.

Q.

And the reason for that, would it be because
maybe the person just didn't see it or maybe
t hey j ust didn't feel it necessary to note it?

A.

I wouldn 8 t know what r eason . It could be
either one of those or various other reasons .
Findings and Conclusions

Docket No. WEVA 92 - 1156
Fact of Violation . Section 104Cd) (2) "S&S" Order No. 3307787,
October 26, 1990 , 30 C.F.R . § 75.400 .
The respondent admitted and conceded that the coal
accumulations cited by the inspector in the course of his
i nspection did in fact exist in the entries cited by the
inspector and that the cited accumulations constituted a
violation of . the requirements found in mandatory safety standard
30 C.F.R. § 75.400 (Tr. 9 Posthearing brief). Under the
circumstances, I conclude and find that the respondent's
admission, coupled with the credible testimony and evidence
presented by the inspector, establishes the violation and IT IS
AFFIRMED.

2272

The Unwarrantable Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:

In light of the foregoing, we hold that an inspector
should find that a violation of any mandatory standard
was caused by an unwarrantable failure to comply with
such standard if he determines that the operator
involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several decisions concerning the interpretation and
application of the term "unwarrantable failure," the Commission
further refined and explained this term, and concluded that it
means "aggravated conduct, constituting more than ordinary
negligence, by a mine operator in relation to a violation of the
Act." Energy Mining Corporation, 9 FMSHRC 1997 (December 1987);
Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007 (December 1987);
Secretary of Labor v. Rushton Mining Company, 10 FMSHRC 249
(March 1988). Referring to its prior holding in the Emery Mining
case, the Commission stated as follows in Youghiogheny & Ohio, at
9 FMSHRC 2010:
We stated that whereas negligence i s c onduct that is
00
i nadvertent v00 "thoughtless" or evinattentive ,"
u nwarrantable c onduct is conduct t hat i s described as
o;not j ustifiab l e 01 o r 98 i nexcusab le . 00 Onl y by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct p lace in t he Act ' s enforcement scheme .
In Emery Mining , the Commission explained the meaning of the
phrase "unwarrantable failure" as follows at 9 FMSHRC 2001 :
We first determine the ordinary meaning of the phrase
00
unwarrantable failure." "Unwarrantable" is defined as
81
not justifiable" or "inexcusable." "Failure" is
defined as "neglect of an assigned, expected, or
appropriate action." Webster's Third New International
Dictionary (Unabridged) 2514, 814 (1971) ("Webster's").
Comparatively, negligence is the failure to use such
care as a reasonably prudent and careful person would
use and is characterized by "inadvertence,"
"thoughtlessness," and "inattention." Black's Law

2 2 73

Dictionary 930-31 (5th ed. 1979). Conduct that is not
justifiable and inexcusable is the result of more than
inadvertence, thoughtlessness, or inattention. * * *
Petitioner's Arguments
Citing Secretary of Labor v. Peabody Coal Company , 14 FMSHRC
125 , 1261 (August 1992), the petitioner asserts that the
violation was the result of a high degree of negligence on the
part of the respondent. In support of this conclusion, the
petitioner states that the respondent was aware that operating
coal conveyor belts produce float coal dust and that the
certified person assigned to conduct a weekly examination of the
area left his foot prints in the float coal dust, which proves
that the examiner had walked in the area and took no corrective
action . Since the cited area generated float coal dust , the
petitioner believes that more frequent examinations than every
seven days should have been conducted .
The petitioner concludes that the respondent's failure to
remove the cited coal dust accumulations on the 10 left return
air entry to the regulator was the result of an unwarrantable
failure to comply with the cited standard section 75.400 . In
support of its conclusion , the petitioner asserts that allowing
the accumulations to continue to exist constitutes aggravated
conduct because the presence of the pale gray-to-white footprints
on the mine floor indicated that the float coal dust was present
when the weekly examiner, Dave Fazio, had conducted his
examination. The petitioner contends that although Mr. Fazio
certified that he had conducted an adequate examination of the
a rea I o~ h azards , he failed to record the accumulations in the
weekly e xamination book " even after he had literally stopped i n
~he a ccumulati ons".
The p~titioner states that the accumulations had been
p resent for several weeks prior to the issuance of the order , the
area had not been cleaned up or i nerted , and the respondent
offered n o explanation as to why t he cited accumulations had not
been removed . Given the fact that it took two to three days and
six to eight miners to abate the conditions, the petitioner
concludes that the conditions had existed for several weeks .
Further , the petitioner assets that the respondent had been
placed on notice that greater efforts were necessary for
compliance with the requirements of section 75 . 400, especially
since the same inspector had just issued another citation or
order at the same mine on the 10 left transfer section three days
pI:ior to the October 26, 1990, date of the violation in this
case.

2274

Respondent's Arguments
The respondent asserts that pursuant to 30 c.F.R. § 75.305,
return air entries are only required to be examined by a
certified mine examiner no less often than every seven days for
hazards and violations of mandatory standards. The respondent
contends that it should not be charged with aggravated misconduct
for failing to discover and correct the dust accumulations found
by the inspector because it was under no such obligation except
to the extent that any float coal dust accumulations are
p rohibited ab initio . The respondent takes the position that
dust accumulations in returns should be considered unwarrantable
only if the company 's weekly examiner fails to make note of such
accumulations or if mine management fails to take prompt action
to correct such accumulations once they are noted by the examiner
or some other responsible manager. Under any other
circumstances, the respondent believes that such accumulations
should be considered ordinary yiolations not subject to the
severe sanctions reserved for aggravated conduct .
The respondent points out that the purpose of air returns is
t o receive all of the dust, methane , and other air impurities
t hat are generated by the mining and transportation of coal, and
t hat they are bound to accumulate coal dust over time . The
respondent states t hat "It is one of the more prominent anomalies
of the Mine Health and Safety Act that such accumulations are
absolutely prohibited from occurring, even though everyone knows
that such accumulations cannot be avoided, and even though the
Act does not require that air return entries be examined for
a ccumulations and other such violative conditions more often than
once each week ."
The r espondent asserts that the i nspector found the
v iolation to be unwarrantable because he assumed that the
f ootprints he d etected on the floor of the entry were those of
examiner Fazio , indicating to him that Mr . Fazio was the last
examiner to pass t hrough the area and walk through the
a ccumulations that the i nspector observed on October 26 , 1990 v
a nd had failed to report those accumulations . The respondent
~ oints out t hat the inspector did not issue any violation because
o f any inadequate weekly examination of the cited entry , and it
believes that the inspector over-reacted , and by the next day or
two after speaking with Mr . Fazio , be no longer viewed the cited
condition as such a serious , unwarrantable violation . The
respondent concludes that Mr . Fazio's failure to offer any excuse
for the accumulations was perhaps due to the fact that he had
done nothing which required an excuse, or that the return entry
was not in bad condition when he examined it on October 24.
The respondent further observes the reticent and
inconsistent testimony of the inspector with respect to his
contacts with Mr. Fazio, and it points to the fact that the

2275

inspector first indicated that he knew Mr. Fazio's last name, but
did not know him personally, and later testified that he might
have spoken to Mr. Fazio,but was not sure (tr. 38, 50). Still
later, the inspector testified that he had spoken to Mr. Fazio,
but that Mr. Fazio was reluctant to speak with him (Tr. 51).
Since the respondent believes that the inspector charged it with
an unwarrantable failure based entirely on his assessment of
Mr. Frazio's competence or honesty, (Tr. 35-36), the respondent
finds it strange that the inspector was so hesitant in recalling
anything about his discussions with Mr. Fazio.
I am not convinced that a mine operator's prior history of
accumulations citations may per se justify an unwarrantable
failure finding. In my view, prior history of any violation must
be taken in contest, and is but one of any number of facts that a
judge may rely on in considering whether a violation is the
result of aggravated conduct amounting to an unwarrantable
failure. In the Peabody Coal Company case, relied on by the
petitioner, supra, the judge ·focused on the fact that the cited
accumulations had been noted in approximately seven of the
preceding preshift reports, and that only one miner had been
assigned to clean up the affected along with other assigned
duties .
In Drummond company, Inc., 13 FMSHRC 1362 (September 1991),
the Commission vacated and remanded a judge's decision that an
accumulations violation of section 75.400, was not the result of
unwarrantable failure. The Commission took particular note of
the fact that the operator had been cited for the same type of
v iolation in the three days prior to the date of the contested
c itation in question and that this should have put it on
vg heightened alert 0 to clean up the cited accumulations before the
i nspector f ound t hem , 13 FMSHRC at 13 68 .
The petitioneris assertion that the respondent was placed on
notice that greater efforts were necessary for compliance with
s ection 75.400 , because the same inspector issued another
v iolation at the 10 l eft t ransfer section three days prior to his
October 26 , 1990 , is lacking in any credible proof . The
i nspector testified that he had issued several accumulations
v iolations at the mine and "believed" that he had issued one on
t he 10 l eft transfer section three days earlier. However, none
of these citations are a matter of record in this case, and the
petitioner did not produce copies of any prior citations or
orders . The inspector's notes made at the time the order was
issued (Exhibit P-2), do not reflect the issuance of any prior
accumulations violations. Further, the petitioner's computer
print-out listing the respondent's prior violations history for
the two-year period up to October 26, 1990, does not include
section 75.400, violations three days prior to October 26, 1990.
The latest citation of section 75.400, prior to October 26, 1990,
the day the cation in this case was issued, was on October 17,

2276

1990, when two violations of 75.400, were issued. One was a
section 104(a) non-"S&S" which was contested with the Commission,
and the other one is a section 104(a) "S&S" citation for whi ch
the respondent paid a penalty assessment of $213. None of these
prior violations are further explained.
The inspector testified that his belief that the cited
accumulations had existed for two weeks was based on his
"experience". However, I take note of his further testimony that
the float coal dust that had accumulated was less than onesixteenth of an inch thick, and could not be measured. Given the
fact that the inspector agreed that the longwall belt conveyor
generates a lot of coal dust as it is carried down the return air
course , I have difficulty understanding why the dust that he
observed was not of more substantial thickness. I also note the
inspector's testimony that the belt entry itself was well rock
dusted and that the mine floor had been "freshly drug". This
leads me to conclude that the respondent addressed the
accumulations at that location~
I find no credible evidenc e to support the petitioner's
assertion that the accumulations had existed for several weeks
p rior to the issuance of the violation in this case. The fact
t hat abatement took two or three days utilizing six or eight
miners must be viewed in c ontext. The evidence shows that it
took two hours to abate an area of 400 feet, after which the
i nspector permitted production to resume and allowed the belt to
be turned back on. The inspector also afforded the respondent
additional time to bring in r ock dusting machines and rock dust,
a nd I am not c onvinced that the a ctual abatement consumed two or
t hree tota l d ays a s the petitioner would have me believe .
Although t he p etit i oner suggest t hat examiner Fazio
c onducted a n i nadequate weekly e xami nation becaus e he failed to
r e cord the accumulations observed by the i nspector in his
e xamination book, the fact is that the inspector issued no
v iolati on f or any i nadequate examination . Further , although the
i ns pector i ndic at ed t hat he " normally " e xamines the p reshift
books a t t he t i me of an i ns pecti on , a nd "probabl y d i d " i n this
c ase , he wa s not posi t ive that he did so , and produced no notes .
Further , he d i d not believed that he noted any hazardous
c ondi tions r ecorded in the p reshift books because he woul d have
made a note of a ny r ecorded hazards .
I have given l ittle weight to the inspector's testimony
c oncerning his contacts with examiner Fazio. The burden of proof
i s on the petitioner, and it occurs to me that a critical witness
such as the examiner who apparently observed the accumulations
and placed his initials on the crib two days before the
inspection, indicating that he had examined the area, would be
the individual in the best position to testify first-hand about
events that took place three years ago. The record reflects that

227 7

Mr. Fazio is still employed with the respondent, but he was not
called to testify and his deposition was not taken.
On the basis of the foregoing findings and conclusions, and
after careful review of all of the evidence and testimony adduced
in this case, I conclude and find that the petitioner has failed
to establish by a preponderance of any credible evidence that the
violation resulted from the respondent's aggravated conduct and
unwarrantable failure to comply with the requirements of
section 75.400 . Accordingly, the inspector's finding in this
regard IS VACATED, and the contested order IS MODIFIED to a
section 104(a) citation.
The Significant and Substantial CS&S) Violation Issue
A "significant and substantial" violation is described in
section 104(d) (1) of the Mine Act as a violation "of such nature
as could significantly and substantially contribute to the cause
and effect of a coal or other mine safety or health hazard."
30 C.F.R. § 814(d) (1). A violation is properly designated
significant and substantial "if, based upon the particular facts
surrounding the violation there exists a reasonable likelihood
that the hazard contributed to will result in an injury or
illness of a reasonably serious nature." Cement Division,
National Gypsum Co., 3 FMSHRC 822, 825 (April 1981) .
In Mathies Coal Co . , 6 FMSHRC 1 , 3-4 (January 1984), the
Commission explained its interpretation of the term " significant
and substantial" as follows:
~n order to establish t hat a v iolation of a mandatory
s afety standard is significant a nd substantial under
National Gypsum the Secretary of Labor must prove : ( 1 )
the underlying violation of a mandatory safety
standard; (2 ) a discrete safety hazard--that is, a
measure of danger to safety- contributed to by the
v iolation ; ( 3 ) a reasonable l ikelihood that the hazard
c ontributed to wil l result in an injury ; and (4 ) a
reasonable likelihood that the inj ury in question will
be of a reasonably serious nature .

I n United States Steel Mining Company. Inc ., 7 FMSHRC 1125 ,
1129 , the Commission stated further as follows:
We have explained further that the third element of the
Mathies formula "requires that the Secretary establish
a reasonable likelihood that the hazard contributed to
will result in an event in which there is an injury."
U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (August
1984). We have emphasized that, in accordance with the
language of section 104(d) (1), it is the contribution
of a violation to the cause and effect of a hazard that

2278

must be significant and substantial. U.S. steel Mining
Company, Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S.
Steel Mining Company, Inc . , 6 FMSHRC 1573, 1574-75
(July 1984).
The question of whether any particular violation is
significant and substantial must be based on the particular facts
surrounding the violation, including the nature of the mine
involved, Secretary of Labor v . Texasgulf, Inc . , 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Petitioner's Arguments
In support of the inspector's "S&S" finding, the petitioner
states that it has established a violation of section 75 .4 00, and
that given the fact that the 10 left conveyor belt was running
while the accumulations were located within five feet of the edge
of the belt, a discrete safety hazard existed. The petitioner
further argues that in the normal course of mining operations, it
was reasonably likely that a belt roller would have become hot
enough to produce sparking that would have ignited the float coal
dust accumulations located within five feet of the belt. If a
f ire had started in the belt line , it would have propagated into
t he main return through the regulator and a fire suppression
system would have been ineffective in putting out the fire.
Petitioner concludes that it was reasonably likely that an
ignition would have occurred, and that an explosion or fire would
have also occurred when the float coal dust was placed in the air
and became ignited by an electrical spark. If an explosion or
f ire had occurred, petitioner further concludes that at least one
mi ner would have been seriously injured , and at the time that the
or der ha d b een abated , at l east s i x to e ight miners could hav e
been s e riousl y i njured .
Respondent ' s Arguments
The r espondent asserts that the violation was not "S&S"
because t he t hird a nd fourth elements necessary to establish such
a v i olation , a s enunciated by the Commiss i on i n its Mathies Coal
Company and Cement Division , National Gypsum Company decisions ,
are missing i n the case of the contested order. In support of
i t s p osition , t he r espondent states that the only ignition source
i dentified by the i nspector that mi ght have been "likely" to
i gnite the coal dust in the return entry was the 10 left coa l
c onveyor belt in the entry adjacent to the return. Although the
i nspector described how belt rollers can wear and cause heat and
f riction , and how the belt structure itself can run out of line
and rub against the steel structural framework, the respondent
points out that the inspector confirmed that there were no hot
rollers or belt rubbing problems that he could detect anywhere in
the area , and that the methane content of the air in the area was

22 7 9

well below the explosive concentration level. Under the
circumstances, the respondent does not believe that it was
reasonably likely that there would be an ignition of the coal
dust in the return entry resulting in serious injuries or death.
The respondent believes that in the normal course of mining it
was far more likely that the conveyor belt would have continu~d
to run normally , that dust from the belt would have continued to
be drawn down the return, and that the next weekly examination of
the return would have resulted in the routine dragging and
rockdusting of the entry.
The respondent maintains that there is a considerable
dispute as to the proximity of any float coal dust to the end of
the 10 Left coal conveyor belt, the potential ignition source
identified by the inspector. The respondent states that the
inspector testified that float coal dust was deposited on the
ribs and roof of the crosscut leading from the belt ever to the
return , and that this crosscut was included in his order.
However, the respondent points·· out that there is a distinction
between the "longwall recovery chute" and the crosscut that the
inspector testified about. The respondent concedes that the
longwall chute and the line curtain hung in that chute had
accumulations of coal dust, but it insists that the crosscut
t estified to by the inspector was not included in his order, and
that a sketch i ncluded a s part of his order, as well as the
abatement act i vity, do not reflect or mention any accumulations
in the crosscut leading over to the conveyor belt entry .
After careful consideration of all of the evidence in this
c ase , as well as the arguments advanced by the parties, I
c o nclude and f ind t hat the respondent has the better part of the
a rgume n t a nd that t he petitioner has f a ile d to establis h that a n
ignit ion or fi re wa s r easonably l i ke ly t o o ccur as a result of
t he accumulations c ite d by the i nspector .
The inspector testifi ed that the accumulations in the return
a ir e ntry were not i n the same entry as the belt , and he
c on fi rmed that there were no i gnition sources in the r eturn a ir
c ours e (Tr . 32 8 41 ). He a l so confi rmed tha t he made a methane
measurement and f ound two-tenths of one percent methane at the
r egulator (Tr . 41 ) . Although the i nspector b elieved that the
f l oat dust c ould be i gni ted by a hot roller o r the belt rubbing ,
a nd t hat an electrical arc c ould have ignited the float c oal dust
i f it were suspended in the air , he confirmed that he observed no
hot r oll ers , a nd did not detect any belt rubbing that would cause
surface heati ng (Tr . 42). He further confirmed that the belt
entry was well rock dusted and that the mine floor had been
"freshly drug" (Tr. 45). When asked to explain the likelihood of
a roller getting hot, the inspector stated that in the course of
other mine inspections, he has found defective rollers and the
belts cutting into the steel belt frames causing friction, but he
conceded that during the inspection on the day he issued the

2280

violation he did not find any o·f these potential ignition sources
present (Tr. 47). The inspector offered no testimony with
respect to the source of any electrical arc, and he confirmed
that he did not, and could not, take the time to inspect the belt
to determine if there was an ignition source (Tr. 50).
The inspector estimated the distance of any accumulations to
the edge of the belt that he considered a potential ignition
source to be five feet. Foreman Morgan, who accompanied the
inspector, estimated the closest distance of any accumulations to
a potential ignition source to be 50 to 70 feet, and the
inspector conceded that if there were no accumulations in the
crosscut extending from the belt entry to the "recovery chute",
Mr. Morgan's estimated distances would be accurate (Tr. 95-96,
109) . I take note of the fact that the disputed order was issued
close to three years ago, and I find merit in the respondent's
arguments concerning the inconsistency in the inspector's hearing
testimony, and the absence of critical and specific information
in his notes and sketch, as well as his order, with respect to
the existence of any float coal dust in the crosscut that the
inspector claimed was in close proximity to the belt that the
considered an ignition source.
Mr. Morgan testified credibly that he observed no hot belt
roller, no rubbing of the belt against the support structure, and
no electrical equipment that may have been sparking or arcing.
He confirmed that he observed no ignition sources of any kind
connected with the belt (Tr. 68-69). Petitioner's counsel
conceded that none of these conditions were present at the time
of the inspection (Tr. 83), and the inspector identified no
e lectrical equipment or c omponents, other than the belt , that he
c onsidered a source of arc i ng , sparking , or other ignitions .
Under all of these circumstances , and in the absence of any
c redible evidence to establish the existence of any ready sources
o f ignition, or that the cited accumulations were in close
proximity to any such sources of ignition, I cannot conclude that
an ignition or fire was reasonably likely to occur. Under the
circumstances , I cannot conclude that an "S&S" violation has been
e stablished , and the finding of the inspector in this regard IS
VACATED , and the violation IS MODIFIED to reflect a non-"S&S"
v iolation .
Docket No . WEVA 92-1050
Fact of Vi olation. Section 104Cdl (2) "S&S" Order No. 3718887,
May 11. 1992. 30 C.F.R.

§

75.400.

The respondent admitted and conceded that the coa·1
accumulations cited by the inspector in the course of his
inspection did in fact exist at the cited longwall tailgate entry
locations described by the inspector and that the cited

2 281

accumulations constituted a violation of the requirements found
in mandatory safety standard 30 C.F.R. § 75.400 (Tr. 113,
Posthearing Brief, pg. 1). Under the circumstances, I conclude
and find that the respondent's admission, coupled with the
testimony of the inspector and the respondent's witness (Morgan),
establishes the violation, and IT IS AFFIRMED.
The Siqnif icant and Substantial CS&Sl Violation Issue.
In its posthearing brief, the respondent concedes that
because of the proximity of the cited coal accumulations to the
mining face, the violation was properly designated a significant
and substantial (S&S) violation. Under the circumstances, the
inspector's "S&S" finding IS AFFIRMED.
The Unwarrantable Failure Issue
Petitioner's Arguments
citing secretary of Labor v. Peabody Coal Company, 14 FMSHRC
1258, 1261 (August 1992), the petitioner asserts that the
violation was the result of a high degree of negligence on the
part of the respondent. In support of this conclusion, the
petitioner states that the respondent was aware at the time of
the violation that the longwall shearer generated float coal dust
and knew that the area should have been cleaned up or rock dusted
after each production shift, and the fact that the area was
required to be examined once a week did not excuse the respondent
from its obligation to exercise more care in examining the area
for accumulations more than once a week .
The petitioner concludes that the respondent's failure to
r emove the cited f loat coal dust accumulations from the longwall
t a ilgate entry was the result of i ts unwarrantable failure to
comply with the requi rements of secti on 75.400. In support of
this conclusion , the petitioner asserts that allowing the
accumulations to continue to exist constitutes aggravated conduct
because the presence of the accumulations in the tailgate entry
was brought to the respondent ' s attention on May 4 , to May 6 , and
had existed for some time prior thereto , and had not been cleaned
up or rendered i nert by May 11 , 1992 , when the inspector
c onducted his inspection .
The petitioner argues that the respondent knew that the
tailgate area of the longwall section accumulated float coal dust
very quickly and needed to be dragged each shift. The petitioner
contends t~at the respondent's examiners had a practice of not
reporting accumulations in the weekly examination reports unless
told to do so, and that one of the examiners, Charles -underwood,
who dragged the entry the previous Monday, Tuesday, and
Wednesday, May 4, 5, and 6, 1992, knew that the area required
dragging each shift. Although the accumulations of float coal

2 2 82

dust were present on Monday, May 4, and Mr. Underwood placed his
initials on the crib that day, indicating that he had conducted
an examination of the area, the accumulations had not been
reported in the weekly examination book. The petitioner states
that the accumulations were actually noted in the weekly
examination book on May 11, 1992, after the inspector issued the
order that day, and after Mr. Thomas instructed examiner Ron
Neely to enter the accumulations in the book.
The petitioner asserts that although Mr. Thomas testified as
to the respondent's standard operating procedure regarding
removal of coal dust, he did not actually observe the miners
following the procedures and applying rock dust after each pass
of the shearer during mining operations. Petitioner further
contends that Mr. Thomas testified inconsistently as to whether
rock dust is applied during each shift, or periodically
(Tr. 161-162, 167).
The petitioner concludes that g·i ven the extent of the float
coal dust, and the fact that it took two hours and eight miners
to remove the accumulations, the conditions had existed for
several weeks. The petitioner also concludes that since the
respondent had been placed on notice that greater efforts were
necessary for compliance with section 75.400, its failure to
remove the accumulations was the result of its unwarrantable
failure to comply with the requirements of the cited mandatory
standard.
Respondent's Arguments
The respondent asserts that the inspector cited the
v iolation as an unwarrantable f ailure violation because he
be lieved t hat the entry i n question should have been examined
more of ten than once every seven days , when in fact he knew that
t he entry was exami ned more frequently than that. The respondent
believes that it is apparent from the inspector's testimony that
he believed the v i olation was unwarrantable because there were
dust accumulations on coal sloughage along the ribs , outside the
passageway between the cri bs , and on the cri bbing ties
t hemsel ves , which had not been removed or covered over, while the
c enter passageway itself had been "dragged" repeatedly since the
pr i or weekly exami nation on May 4 . The respondent concludes that
s ince th i s routine-but-not-required housekeeping had not resul ted
i n the complete removal of all accumulations which, in the
i nspector ' s estimation, would have been noticed by the persons
dragging the entry, the inspector decided to charge the
respondent with unwarrantable aggravated conduct, even though he
did not identify any of the persons who supposedly had. seen the
accumulations and failed to correct them.
The respondent states further that its most telling argument
is the inspector's testimony that he would not have cited the

2283

violation as an unwarrantable failµre if the weekly examiner
(Neeley), had arrived on the scene before the inspector got there
and had taken action with regard to the accumulations. The
respondent concludes that Mr. Neeley's arrival a few minutes
after the inspector apparently made all the difference to the
inspector between an unwarrantable and an ordinary violation.
The respondent suggests that the Mine Act should not be subject
to such capricious enforcement decisions by MSHA inspectors, and
that the violation was either unwarrantable or it was not, and
that the arrival time of the examiner should have nothing to do
with that determination.
Former section 75.305, now codified and renumbered as
section 75.364, does not require "more frequent examinations", as
the inspector believed, and simply requires examinations in those
areas covered by the regulation "at least every 7 days".
Although the respondent may not be cited for a violation of
section 75.364, for not conducting examinations more frequently
than every 7 days, I find nothing to preclude an inspector from
citing it for an accumulations violation pursuant to
section 75. 400, a totally separate standard that requires
c leanup and removal of coal accumulations. Further, it would
appear to me that in light of the Commission's decision in
Drummond Coal Inc .. supra, at 13 FMSHRC 1367-68, reaffirming its
decision in Eastern Associated Coal Corp., 13 FMSHRC 178, 187
(February 1991), actual knowledge of a violative condition is not
a necessary element to establish aggravated conduct amounting to
an unwarrantable failure.
In the instant case, the inspector based his order on two
princi pal f actors . He consi dered the extent and proximity of the
a c cumulations to the acti ve longwall , and a conversation that he
had with an examiner (Underwood) a week before the inspection on
May 11 , 1992 . According to the inspector, Underwood told him
that he had examined the cited area on May 4, 5, and 6, and had
v•dragged" it on May 5 and 6 , as well as after every shift ,
because 0 it got d irty and needed dragging every shift" .
With regard to the extent of the accumulations , the
i nspector conceded that it was not unusual for float coal dust to
a ccumulate rapidly when the shear is cutting coal at the longwall
f ace, and he indicated that accumulations occur at the longwall
t ailgate entry which is a return air course. Given the fact that
the return air course is designed to allow the removal of coal
dust generated at the longwall during the mining cycle, I do not
find it particularly significant that coal dust will be deposited
and accumulate as it makes its way down the return. The critical
issue is how fast is an operator reasonably expected tp react to
coal dust that has been allowed to accumulate for a protracted
period of time.

2284

The inspector confirmed that he reviewed the weekly
examination books and found nothing to indicate the presence of
coal accumulations in the areas that he cited. In his opinion,
the cited accumulations had existed for time periods ranging from
"several weeks", "a shift or two", "a couple of days", and "two
or three weeks", and his beliefs in this regard was based on his
"experience" and the thickness of coal dust, which ranged from
"an eight of an inch", "medium thick", to "a thin layer". I find
the inspector's opinions to be speculative and lacking in
probative value.
I emphasize again that the burden of proof in this case is
on the petitioner, and I take note of the fact that the two
examiners responsible for examining the cited area prior ta and
during the inspection on May 11, 1992, (Underwood and Neeley),
were not called to testify, nor were they deposed. With respect
to Mr. Underwood, the fact that he believed the area needed
dragging the week before Inspector .Workley viewed the area, does
not establish that it needed dragging on May 11, nor does it
establish that dragging or rockdusting is required under the mine
cleanup plan after every production shift as the inspector
believed. If the inspector believed this was the case, it was
i ncumbent on him to produce a copy of the cleanup plan to prove
that this was the case. Further, I find it rather strange that
MSHA'S policy prohibits an inspector from citing an operator for
a violation of its required cleanup plan or program if it fails
to rockdust or drag an area after each shift pursuant to its
approved or required plan.
With respect to examiner Neeley , the inspector confirmed
t hat he met Mr o Neeley i n the tailgate entry after he had issued
t he vio l at i on a nd order , and that Mr o Neeley was i n the process
of c onducti ng t he weekly examination of the tailgate entry . The
i nspector c onfirmed that had he encountered Mr. Neeley conducting
the weekly examination before he issued the order he may or may
not have issued it depending on "what action Mr. Neeley had
t aken" o Since Mr . Neeley did not testify, his intentions remain
a mystery o However , one cannot speculate that Mr. Neeley would
h ave recognized the accumulation as less than hazardous requiring
no i mmediate corrective action. Indeed, the previous examiner
(Underground) , examined the area one day, found nothing that
needed correcting that day , but subsequently found the need to
t ake corrective action the next two days. This indicates to me
t hat the respondent's examiners are taking care of business as
required, and it is just as probable as not that given time to
complete his examination, examiner Neeley may have taken
corrective acetoin if he believed the conditions warranted it.
On the facts here presented, and after careful consideration
of all of the evidence and testimony adduced in this case, I
cannot conclude that the petitioner has made a case that the

228 5

violation was the result of the respondent's aggravated conduct
amounting to an unwarrantable failure to comply with
section 75.400. I short, I find no convincing credible or
probative evidence to establish that the cited accumulations had
existed for any protracted period of time and that the respondent
failed to take any reasonable corrective action. Under the
circumstances, the inspector's unwarrantable failure finding IS
VACATED, and the section 104(d) (2) order IS MODIFIED to a
section 104(a) "S&S" citation.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
I conclude and find that the respondent is a large mine
operator and the parties have stipulated that payment of the
civil penalty assessments for the violations in question will not
adversely affect the respondent's ability to continue in
business.
History of Prior Violations
The petitioner's computer print-out for the Blacksville
No. 2 Mine for the period March 20, 1990 through March 19, 1992,
reflects that the respondent paid $229,523, for $1,055, assessed
violations, and that 117 of these were for violations of
section 75.400. I take note of the fact hat the violation in
this case was issued on May 11, 1992, and the petitioner did not
supplement its violation history from March 19, 1992 to May 10,
1992 . The latest citation of record for violations of
s ection 75. 400 , p rior to May 11 , 1992 , was a February 26 , 1992 ,
sect i on 104 (a) 01 S&S '° citat i on , t he details which are not of
r ecord .
The petitioner ' s computer print-out of prior violations for
the Arkwright No. 1 Mine for the period October 27, 1988 through
October 26 , 199 0 , reflects civ il penalty assessment payments of
$120 ,, 371 , for 651 assessed v iolations , and that 71 o f these were
f or vio lat i ons of s ecti on 75 04 00 0 Considering the s i ze of t he
respondent ' s mining operations , I cannot conclude that its
overall compliance record is particularly bad . However, given
t he number o f past v iolations for coal accumulations, i t would
a ppea r to me that the respondent needs to pay closer attention to
i ts cleanup practices , and I have considered this in the penalty
assessments that I have made for the violations .
Good Faith Compliance
The parties stipulated that the cited conditions were timely
abated in good faith by the respondent.

2286

Gravity
Based on my "S&S" findings and conclusions, I conclude and
find that the modified Citation No. 3307787 (WEVA 92-1156), was
a non-serious violation, and that Citation No. 371887
(WEVA 92-1050) was a serious violation.
Negligence
I conclude and find that both of the section 75.400,
violations that I have adjudicated and affirmed resulted from the
respondent's failure to exercise reasonable care amounting to a
moderately high degree of negligence.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the civil ·penalty assessment criteria found
in section llO(i) of the Act, I conclude and find that a civil
penalty assessment of $500, is reasonable and appropriate the
section 75.400, violation in Docket No. WEVA 92-1156, and that a
penalty assessment of $1,000, is reasonable and appropriate for
t he section 75.400, violation in Docket No. WEVA 92-1050.
ORDER
In view of the foregoing findings and conclusions, IT IS
ORDERED AS FOLLOWS:
Docket No . WEVA 92-1156
L.

The respondent IS ORDERED to pay the full amount of the
proposed civil penalty assessments for the follow i ng
violations that have been settled by the parties:

Citation/Order No .

Date

3314293
3307182
3314299
3306265
3308049

9/6/93
9/10/90
9/10/90
10/17/90
10/11/90

2.

30 C.F . R. Section
75 . 1722(a)
75.512
75 . 1722(a)
75.400
75.202(a)

Assessment
$213
$625
$213
$178
$213

Section 104(a) "S&S" Citation No . 3314179, August 23,
1990, citing a violation of 30 C.F.R. § 75.403, IS
MODIFIED to a non-"S&S" citation, and the respondent IS
ORDERED to pay a civil penalty assessment of $115 in
settlement of the violation.

2287

3.

Section 104(a) "S&S" Citation No. 3314297, September 7,
1990, citing a violation of 30 C.F.R . § 75.1003(a), IS
MODIFIED to a non-"S&S" citation, and the respondent IS
ORDERED to pay a civil penalty assessment of $128, in
settlement of the violation.

4.

Section 104(a) "S&S" Citation No. 3113921, September 6,
1990, citing a violation of 30 C.F.R. § 75.514, IS
MODIFIED to a non-"S&S" citation, and the respondent IS
ORDERED to pay a civil penalty assessment of $197, in
settlement of the violation .

5.

Section 104(d) (2) "S&S" Order No. 3307787, October 26,
1990, citing a violation of 30 C.F.R. § 75.400, IS
MODIFIED to a section 104(a) non-"S&S" citation, and the
respondent IS ORDERED to pay a civil penalty assessment
of $500, for the violation.

Docket No. WEVA 92-1050
1.

section l04(d) (2) "S&S" Order No. 3312960, March 9,
1992, citing a violation of 30 C.F.R. § 75.1700, IS
MODIFIED to a section l04(a) non-"S&S" citation , and
the respondent IS ORDERED to pay a civil penalty
assessment of $550 in settlement of the violation.

2.

Section 104(d) (2) "S&S" Order No . 371887, May 11, 1992,
citing a violation of 30 C.F.R. § 75.400, IS MODIFIED to
a section 104(a) "S&S" citation, and the respondent IS
ORDERED to pay a civil penalty assessment of $1,000, for
t he v iolation .

I T IS FURTHER ORDERED t hat payment of the aforementioned
c i vil penalty assessments , i ncluding the settlement amounts ,
shall be made to the petitioner (MSHA) within thirty (30) days of
the date of these decisions and Order. Upon receipt of payment,
t hese matters are dismissed .

~itu~
Administrative Law Judge

2288

Distribution:
Wanda Johnson, Esq., Office of the Solicitor, U.S. Department of
Labor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Daniel E. Rogers, Esq. Consolidation Coal Company, Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241-1421 (Certified
Mail)
/ ml

2289

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

Nov ember 2 , 1993

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of LOY PETERS ,
DONALD GREGORY, &
DARRYL ANDERSON,
Complainants

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. WEST 93-652-D
Thunder Basin Mine

v.
THUNDER BASIN COAL COMPANY,
Respondent
ORDER OF TEMPORARY REINSTATEMENT

Appearances:

Bef ore :

Margaret Miller, Esq., Office of the Solicitor ,
U. s. Department of Labor, Denver, Colorado, for
the Complainants;
Laura Beverage, Esq., Jackson & Kelly, Denver,
Colorado, for the Respondent .

Judge Amchan

On July 8, 1993 , Complainants Loy Peters , Donald Gregory and
Darryl Anderson were among 34 miners laid off by Respondent at
its Black Thunder mine near Wright, Wyoming (Tr. 402, 466, Exh.
R-30 pp. 5-6 ) . These complainants allege that they were laid
off , a t least in part , in r etaliation f or the e xercise of their
rights u nder t he Federal Mine Safety and Health Act .
The three
men were among nine employees , eight of whom worked in
Respondent ' s pit maintenan ce shop, whose names appear on a form
r eceived by Respondent in October , 1990 . This form designates
United Mine Workers (UMW) officials Dallas Wolf and Robert
Butero , who are not employees of Thunder Basin Coal, as their
representatives to accompany MSHA personnel during any inspection
of Respondent's mine (walkaround representatives) (Exh. G-1) 1 •

1

Mr. Gregory ' s name appears on the first page of the
designation form as one of eight employees who are alternates for
Mr. Wolf and Mr. Butero. Mr. Gregory did not sign page 2 of the
document, designating Wolf and Butero as walkaround
representatives. The n ame of Susan Lucero, who signed page 2 of

2290

Complainants contend that Respondent's decision to lay off
14 employees from the pit maintenance shop, and the three of them
in particular, was motivated at least partially by Respondent's
animus towards them. This animus, they allege, is due in a
substantial degree to their designating the UMW officials as
their walkaround representatives pursuant to 30 C.F.R. Part 40.
The UMW has been trying to organize Respondent's employees
since 1987. Thus far the UMW has been unsuccessful, losing an
election conducted pursuant to the National Labor Relations Act
by a vote of 307 to 56 in the fall of 1987 (Tr. 420).
Complainants are all active supporters of the UMW organizational
effort (Exh . R-29, Tr . 67-68, 85, 463). Mr. Peters and Mr.
Anderson are leaders among the UMW adherents at the Black Thunder
mine. Both sat on the Union side when ballots were counted in
1987 and they were among the seven employees who initiated a new
UMW organizing effort at the mine in October 1991 (Exh. R-29, Tr.
463).
Respondent considers the designation of the UMW organizers
as walkaround representatives to be an abuse of the Mine Safety
and Health Act (Tr. 424, 443, 461). It views that designation as
simply an effort to aid the UMW in organizing its mine and has
never recognized the Complainants' designation of the UMW
personnel as a valid exercise of the Complainants' walkaround
rights.
One of the individuals so designated, Dallas Wolf, is
the primary organizer for the Union in Wyoming's Powder River
Basin. The other designee, Robert Butero, is the safety
representative of the UMW.
Respondent is very committed to remaining non-union and has
exhibite d considerable hosti lity to the UMW and to its supporters
a mongst the Black Thunder mine workforce (Tr . 421-24 , 429 -31 ,
46 0 - 61) . One reason for this hosti lity is Respondent ' s belief
that the UMW worked through an organization called the Powder
River Basin Resource Council to prevent Thunder Basin Coal from
obtaining the lease to an area immediately west of its then
existing mine (Tr. 428 - 31}.
At a series of meetings with the entire Black Thunder
workforce on approximately December 18 , 1991, company President
J ames A. Herickhoff discussed the UMW role in opposing the lease .
Mr . Herickhoff testified that :
We showed the employees a graph which showed the
importance of obtaining that lease, and then we
also - - or I had told them about information that I

the form does not appear on page 1.
in the pit maintenance division.

2291

She apparently did not work

thought they should know about other groups who are - - were
trying to prevent us from getting that lease (Tr. 429).
Mr. Herickhoff also testified that he showed the employees
the October 10, 1991 letter to him from Dallas Wolf informing
Thunder Basin of the renewed UMW organizational drive (Tr. 429 431, Exh. R-29). This letter prominently displays the names of
seven Thunder Basin employees including Loy Peters and Darryl
Anderson. While Mr. Herickhoff testified that "most of the time"
the names of the employees was not visible to the employees
attending these meetings, I infer from his testimony that for
part of the time the names were visible (Tr. 57-59, 430).
According to Mr. Herickhoff, the reason the letter was shown
to Respondent's employees was that:
Well, it was so ironic to me that on the one hand you
had this group of employees from the UMW trying to
organize our employees and, on the other hand, they
were taking actions through the Powder River Basin
Resources Council to stop us from getting this lease.
It made no sense to me, and I thought our employees
should know it (Tr. 430).
Respondent submits that the termination of Peters, Gregory,
and Anderson had nothing to do with their designation of the UMW
officials as walkaround representatives, any other safety
activity, or union activity. Thunder Basin contends that
considerations such as the falling price of coal, increasing
costs, and a shift from the shovel and truck method of removing
overburden to a dragline operation, made the lay off necessary.
Respondent furth er contends that the lay off was accomplished in
an objective a n d nondiscriminatory manner {Tr . 358 - 9 , 371 , 373 92 , 5 04- 08 , 546 , 562 -69 , Exh . R- 30) .
Pursuant to the procedural rules of the Commission,
29 C . F.R.§ 2700 . 45(d) , the issue in a temporary reinstatement
h earing is limited to whether the miner's complaint was
=rivolously b rought . The Secretary of Labor has the burden of
p roving that the complaints were not frivolous. Although section
1 05(c) (2) of the Statute and the Commission ' s rules indicate that
it is frivolous ness of the miner's complaint that is scrutinized
in a temporary reinstatement proceeding, the legislative history
of the Act and relevant case law indicates that it is the
Secretary's decision to seek temporary reinstatement that is to
be examined. Senate Report 95-181, 95th Cong., 1st Sess. (1977)
at 36; Jim Walter Resources, Inc. v. Federal Mine Safety and
Health Review Commission, 920 F.2d 738, 747 (11th Cir. 1990).
The legislative history of the Act provides that the
Secretary shall seek temporary reinstatement "[u)pon determining
that the complaint appears to have merit. " The Eleventh Circuit

2292

in Jim Walter Resources, Inc. v. FMSHRC, supra, concluded that
"not frivolously brought" is indistinguishable from the
"reasonable cause to believe" standard under the whistleblower
provisions of the Surface Transportation Assistance Act.
920 F.2d 738, at 747. Further, that court equates " reasonable
cause to believe" with a criteria of "not insubstantial or
frivolous" and "not clearly without merit" 920 F.2d 738, at 747
and n. 9. I am ordering the temporary reinstatement of the
complainants in this case because I conclude that the complaints
are not frivolous and that it is possible, although by no means
certain, that the Secretary could prevail in a discrimination
proceeding.
For reasons stated below, I conclude that Respondent has
established, at least for purposes of this proceeding, that it
had a legitimate business reason for the July 1993 reduction-inforce.
I also find that there is substantial evidence that
Respondent had legitimate non-retaliatory motives in laying off
14 of the 38 employees in the pit maintenance department.
Nevertheless, there are some troubling aspects regarding the
impact of the lay off on the pit maintenance department which
give some credence to the Secretary's allegations. Moreover,
there are even more troubling issues regarding the selection of
employees within that department for lay off. Rather than
relying on seniority, or on prior performance evaluations,
Respondent selected the employees for lay off by instituting a
"Forced Ranking" of the employees in the pit maintenance area.
This ranking was done by six supervisory employees the day before
the discharge of the complainants (Tr. 405-08, 473, 517-18, 522,
578-79 , 583 - 94) • 2
The r anking of t he 38 emp l oyees in the pit maintenance
d epartment in 30 d ifferent tasks was accomplished in 5-1/2 hours
( Tr . 588) . The scores of the individual employees were
determined by a consensus opinion of the six supervisors, but it
i s apparent that in some cases the opinion of some individuals
c arried more weight than others (Tr . 439 , 542 , 586).
It is an
open question whether some of these supervisors bore an animus
t owards the complainants as a result of their protected activity
(Tr . 46 - 7 , 54 , 55-6 , 60-62 , 65-67 , 76- 77 , 79-80, 81-83, 263) .
It
i s however clear that the scores given to Peters, Anderson, and
Gregory in the forced ranking are facially inconsistent with many
and possibly all prior evaluations of their job performance (Exh.
G-8 , G- 9, G-12 , G-14 , G- 16, G-17, Tr. 62, 172, 263 -4 ).
2

Pursuant to the request of Respondent's counsel, several
exhibits pertaining to the forced ranking, G-13, G-15, the last
four pages of R-30, and R-33, have been sealed and are to be
treated as confidential.

2293

The completely subjective criteria used in selecting the
complainants for lay off, when objective criteria existed, raises
a serious issue as to whether the selection of complainants for
lay off was retaliatory. Although Respondent tried to establish
that the selection process was fair and non-retaliatory, it has
not satisfied me to the extent that I can conclude that, on the
basis of this record, that the Secretary's case is frivolous.
Without compelling evidence that the reduction-in-force was
carried out in a fair and objective manner, I conclude that the
Secretary's Application for Temporary Reinstatement was "not
frivolously brought." See Rivera v. Installation Club System,
623 F. Supp. 269 (D.C. Puerto Rico 1985).
In a discrimination hearing, the Secretary establishes a
prima facie case by showing that the complainant engaged in
protected activity, and that an adverse action was motivated in
part by the protected activity. The operator may rebut the prima
facie case by showing that no protected activity occurred, or
that the adverse action was 'in no · part motivated by the protected
activity. Sec. ex rel. Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786 (October 1980), rev'd on other grounds sub nom.
Consolidated Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981);
Sec. ex rel. Robinette v. United Castle Coal Co., 3 FMSHRC 803
(April 1981).
In this case, the Secretary has established that each of the
complainants engaged in protected activity. Most significantly,
Peters, Gregory, and Anderson were among eight employees who
designated UMW personnel as their representatives on MSHA
inspections (Exh G-1). Although Respondent regards such
d esignation as an abuse of the walkaround provisions of the Mine
Safety Act , t he Commission has concluded that employees at
a nother non-union mine were entitled to designate Mr . Wolf and
Mr . Butero as their walkaround representatives . Kerr-McGee Coal
Corporation 15 FMSHRC 352 (March 1993) .
The Complainants allege other protected activity as well .
Some of this act i v i t y r elates to an effort by Respondent to
enjoin MSHA f rom requiring Thunder Basin to honor the designation
of UMW officials Wolf and Butero as walkaround representatives
under the Mine Act . 3 In July 1991, Respondent moved to depose
all nine employees whose names appeared on the October 1990
3

The injunction requested by Respondent was granted by the
United States District Court for the District of Wyoming
(No. 91-CV~0050-B). The Court of Appeals for the Tenth Circuit
reversed the District Court on jurisdictional grounds Thunder
Basin Coal Co. v. Martin, 969 F.2d 970 (10th Cir. 1992). The
injunction remains in effect pending consideration by the United
States Supreme Court, which granted certiorari in the case
(No. 91-8029).

229 4

walkaround designation (Exh. G-2). Peters, Gregory, and Anderson
were deposed (Tr. 33 -4, 178, 255-56). In October, 1991, MSHA
subpoenaed all three t o testify in the United States District
court regarding Respondent's request for an injunction. Although
only Peters actually testified, Gregory and Anderson notified
their supervisors that they had received the Secretary's
subpoenas (Tr. 37, 178-9, 259-60).
Loy Peters has also engaged in protected activity in filing
a number of discrimination complainants alleging several previous
instances of retaliation for his role in designating the UMW
personnel as walkaround representatives. Peters, Gregory, and
Anderson also allege that they have made a number of safety
complaints to Respondent.
There is no question that the three complainants have
experienced an adverse action. All three lost their jobs at
Thunder Basin Coal Company on July 8, 1993. Mr. Peters had
worked for Respondent for 14-1-/2 years; Mr. Gregory had worked at
Thunder Basin for 14 years; and Mr. Anderson had been employed
there for 12-1/2 years. The real issue is whether there is any
relationship between the complainants' protected activity and
their discharge.
As an initial matter, I note that I am not charged with
jurisdiction to decide matters arising under the National Labor
Relations Act. Clearly, the organizational effort of the UMW is
at the core of this case. Nevertheless, the complainants' choice
of Mr. Wolf and Butero to be their walkaround representatives is
protected by section 105(c) of the Mine Safety and Health Act. 4
There is simply no way to completely separate the animus of
the Respondent towards complainants due to their union
organizationa l activities and their designation of Wolf and
Butero as walkaround representatives. I conclude that Respondent
bore considerable ill will towards the complainants for
designating the UMW officials as walkaround representatives and
t he degree and ongoing nature of this animus may create the
n ecessary i nference for purposes of this hearing to establish a

4

Even if _the Commission's decision in Kerr-McGee is
reversed, complainants had a good faith belief that they were
entitled to designate Wolf and Butero as walkaround
representatives. This good faith belief renders their
designation to be protected activity even if they ultimately turn
out to be wrong on this issue.

2295

relationship between their protected activity and their selection
for discharge. 5
Respondent contends that the Secretary has not established
or even sufficiently alleged that the termination of the
Complainants was motivated or caused by, or in any way related
to, their alleged protected activity.
Respondent's Memorandum
Of Law In Support Of Motion To Dismiss. The Application for
Temporary Reinstatement states that complainants alleged that
they were discharged because they signed a miners' representative
form and other protected activity. The Application also states
that the Secretary has found these allegations to be "not
frivolously brought." I find that the Application is a
sufficient pleading to state a claim.
I also find that the affidavit attached to the Application,
in the absence of any other evidence, would be sufficient to
withstand a motion to dismiss. Whi le the affidavit could have
explained the Secretary's case more clearly, it does allege that
complainants were engaged in protected activity (paragraph e),
that Respondent displayed an ongoing animus towards complainants
as the result of that activity (paragraph f), and that Peters',
Gregory's, and Anderson's claims that they were discharged as the
result of that activity is not frivolous {paragraph 4).
It is true that there is no direct evidence establishing a
link between complainants' discharge and their designation of
Wolf and Butera as walkaround representatives. However,
circumstantial evidence may be sufficient to establish this link.
Ellis Fischel State Cancer Hospital v . Marshall, 629 F.2d 563,
566 ( 8th Cir . 1980} cert . denied, 450 U.S . 1040 (1981) .
I n this
case , t he circumstantia l evidence of a relationship between the
walkaround designation and the complainants ' discharge is
established by the strong and continuing animus of Respondent's
management, including the company President, towards
complainants, as the result of their union activities, of which
t he walkaround designation was a significant part. At a minimum ,
this circumstantial evidence is enough to establish a prima facie
case that the Application for Temporary Reinstatement was not
frivo lously brought. 6
5

The complainants 9 deposition testimony, Mr. Peters' trial
testimony , and the prior discrimination complaints are merely
outgrowths of the walkaround designation.
I do not see any
indication that complainants' safety complaints, absent their
union activity and walkaround designation, were a material factor
in their discharges.
6

decline to make any credibility resolutions between
controverted testimony in this proceeding. For example, I will
not make a finding as to whether Mr. Herickhoff did or did not
!

2296

My conclusion that the allegations of retaliatory discharge
are not frivolous rests primarily on the apparent incompatibility
of the forced ranking used by Respondent in selecting the
complainants for lay off with their previous performance
appraisals. The employees in the pit maintenance department were
rated from 1 to 5 in 30 categories. A score of 1 was the best
and 5 was the worst. A rating of 4 was defined as "Inconsistent
performance which is generally below the requirements for
competency in the work." A score of 5 is defined as
"Unacceptable performance which falls far short of the
requirements for competency in the work." {Exh. G-14)
Mr. Peters received the second worst score of the 38
employees in the pit maintenance department {Exh. G-15, R-33).
His overall score was 4. 29. In 13 categories under the head.i ng
of "Heavy Mechanic", which accounted for 30 percent of his score
he received 12 "5"s and 1 11 4 11 •
In seven categories under
"Equipment/Machinery" which accounted for another 20 percent of
his ranking, Mr. Peters was received 7 "5"s out of 7 {Exh. G-8).
These scores indicate that Mr. Peters was totally incompetent in
performing much of his work. Yet in 14 years as an employee of
Respondent, Mr. Peters received performance evaluations of "Meets
Expectations" or "Exceeds Expectations" on all occasions save one
{Tr . 62) • 7
Although Respondent contends that the six supervisors who
participated in the forced ranking were tough scorers in general,
the disparity between Peters' performance appraisals and his
scores in the forced ranking raise a substantial issue as to
whether that ranking was in some part a result of his protected
fn. 6 (continued )
refer to the complainants as 00 cronies of Dallas Wolf" or whether
Mr . McCreary , who oversaw the forced ranking procedure, had
called the complainants "crony bastards", or told Mr. Peters that
he would last a lot longer if he got out of "this political
p rocess. " ( Tr . 34-5 , 60 , 184 , 261 , 263 , 430-31 , 599-603 } It may
b e that additional evidence introduced in a discrimination
p roceeding wil l provide a basis for making such determinations.
7

The one "Does Not Meet Expectations" rating Peters received
i s an issue in this case in that Peters was evaluated by Foreman
Doug Freeland , whom he contends demonstrated animus towards him
as a result of his protected activity (Tr. 61-62, 65-67).
Moreover, that rating was received in January 1992, a month after
company President Herickhoff commented publicly about the
potential effects of the UMW organizing effort on the company's
future and identified Peters as a union supporter (Tr. 428-31).
This rating was also received 3 months after the UMW renewed its
organizing drive {Exh. R-29) and 2 months after Mr. Peters
testified on behalf of MSHA concerning the walkaround
representative dispute (Tr. 37, 421-24, 442-43}.

2297

activity. On this basis alone I would find the Secretary's
decision to proceed with Peters• complaint to be "not frivolous."
With regard to Mr . Anderson, a serious question regarding
the alleged discriminatory nature of his discharge arises even
before one considers his forced ranking score. Mr. Anderson had
been temporarily assigned to the Truck Maintenance shop 6 months
prior to the lay off (Tr. 258, 535). Respondent knew before the
forced ranking that it would not lay off anyone in the truck
maintenance shop (Tr. 637, Exh. R-30 pp. 5-6) . 8 Nevertheless,
Anderson was rated with the pit maintenance employees and two
employees temporarily assigned to the pit maintenance shop were
rated with the Truck Maintenance workforce. This procedure may,
to some extent, suggest that Anderson, a prominent union advocate
and signer of the UMW walkaround form, was transferred back to
pit maintenance so that Respondent would have a better chance of
getting rid of him.
Anderson's overall score of 3.9 placed him tenth from the
bottom in the forced ranking of the 38 pit maintenance employees
(Exh. R-33). He received a " 5 " in 11 of 13 categories under
"Heavy Mechanic" and 5 " 5 "s out of 7 under "Equipment/
Machinery."(Exh. G-12) As Anderson never got a performance
evaluation below "Meets Expectations" in his 12-1/2 years with
Respondent (Tr. 263-4), I find his forced ranking score facially
inconsistent with Respondent's prior evaluation of his
performance, and, thus, suspect.
In Anderson's performance evaluation for February 20, 1990
t hrough February 9 , 1991, he received a rating of "Meets
Expectationsn ( Exh . G- 16) . The narrative of the evaluation is
t otally at odds with the numerous "5" ratings Anderson received
in the forced ranking . Some of the relevant comments were as
f ollows:
"Quality of work is excellent. completes work with
l ittle direction . Tools and equipment are used
p roficiently .
Conveys accurate information pertaining to structural
failures and makes repairs accordingly . Ingenuity is
used in the design and construction of equipment that
is used to make jobs easier and safer.
Uses sound judgement in planning jobs. Has strong
convictions seeing a job through to completion and that
is (sic) been proven beneficial in use.
8

0 ne employee in light vehicle maintenance was laid off but
his duties were apparently not comparable to Anderson's (Exh.
R-30, p. 5, Tr. 534-5).

2298

Excellent fabricator of materials. Weld repairs are
made in a quality manner. Actively seeks more work as
assigned job is complete.
Darryl has shown me that he is a conscientious employee
and I am sure this will continue. His skills,
knowledge and willingness to share information about
certain jobs has proven to be an asset to myself and
others.
Anderson's evaluation for the period July 26, 1991 through
February 9, 1992, was not as favorable, although he did receive a
rating of "Meets Expectations."
This evaluation followed not
long after the October 1991 reinitiation of the UMW organizing
campaign and the hearing on Respondent's suit to enjoin the UMW
walkaround designation, but is still inconsistent with the forced
ranking scores (Exh. G-17). Among the relevant comments are:
Quality of work is excellent. Use of time has improved
to an acceptable level and is expected to be
maintained . . . .
Excellent fabrication skill are utilized. More
initiative can be applied in making some repairs.
Troubleshooting on general mechanical repairs is
improving with increased exposure.
Has strong knowledge of weld repairs. Mechanical
knowledge is improving and I will make more assignments
on mechanical repairs so that experience can be gained .
Darryl i s a conscientious employee who applies a lot of
creative thinking to his work . I appreciate his
candidness in discussions we've had and recently
noticed a stronger line of communication building with
o thers in management . •.
In 14-1 /2 years Gregory received evaluations of "Meets
Expectations " on all but one occasion in 1988 or 1989 (Tr . 172) .
He received the fourth lowest score in the forced ranking (Exh .
G- 14). Under the category of "Heavy Machinery" Gregory received
all "5"s except one 4 (Exh. G-9) The Secretary's case on behalf
of Gregory is weaker than is his case on behalf of Peters and
Anderson.
First of all, Gregory was not nearly as prominent in
union affairs as the other two complainants. He signed neither
the walkaround designation form nor was he listed on the October
1991 notice to Respondent about the renewed organizational
campaign (Exh. R-29, G-1, p. 2).
Nevertheless, Gregory is listed as an alternate walkaround
representative to Mr. Wolf and Mr. Butero (Exh G-1, p. 1). He

2299

was deposed by Respondent in July 1991, and was subpoenaed to
testify for MSHA in October 1991. Upon receipt of a reprimand
shortly thereafter he filed a discrimination complaint with MSHA.
{Tr. 184). He has also given depositions on Mr. Peters' behalf
regarding discrimination claims under section 105(c) of the Mine
Safety and Health Act (Tr. 67-68, 85). Given the absence of any
indication that Respondent previously considered Gregory as poor
an employee as suggested by his forced ranking score, I conclude
that the Secretary's case on his behalf in "not frivolous" as
well. 9
The entire forced ranking process is conceivably tainted by
retaliatory motivation. Terry Walsh, Respondent's Operations
Manager and Robert McCreary, Respondent's Maintenance
Superintendent for the pit maintenance area, testified that the
reason the company could not rely on performance evaluations in
conducting the lay off was that they wouldn't allow Respondent to
differentiate among the employees in the pit maintenance
department (Tr. 517-18, 578-79). This suggests that there may
not have been sufficient disparity in the performance of the
workforce to make selections for lay off on this basis.
It also raises the possibility that the forced ranking
process was an attempt to create distinctions where none existed
and that the only objective way to differentiate between
employees was on the basis of seniority, as Respondent had done
once in the past.
The forced ranking process may have been an
effort to quantify the unquantifiable and may have been, in part,
employed in order to avoid using seniority which would have
spared all or most of the UMW syrnpathizers. 10
9

Respondent at p age 4 0 of i ts brief argues that Gregory
s hou ld not be r einstated because h e is physically unable t o
p erform his j ob . Although Gregory has had knee surgery, which he
considers unsuccessful, there is no indication that he did not
perform his job satisfactorily from September 1992, when he
r eturned from the second operation to the day of his discharge
(Tr . 187-189 ). If Mr . Gregory is willing to work despite the
p a in and discomfort i n his knees , he must be reinstated.
10

I reject the contention that because five of the nine
employees whose names appear on the UMW walkaround designation
were not laid-off , retaliatory motive has been disproved. It is
not necessary to discharge all the union adherents to accomplish
a desired result--particularly when two of those laid-off, Peters
and Anderson, were clearly leaders of the UMW faction at the
Black Thunder Mine. Similarly, the fact that many of those laid
off apparently had no connection with the UMW or the walkaround
designation, does not necessarily mean the layoff was not
discriminatory. On the other hand, both these facts must be
considered in a discrimination case. Obviously, a situation in

2300

In addition to the forced ranking process and the disparity
between the complainants' rankings and their prior performance
evaluations, there is a substantial issue regarding the impact of
the lay off on the pit maintenance department. After the lay
off, maintenance of the Respondent's rotary drills was
transferred from pit maintenance, where most of the UMW faction
worked, to the truck maintenance shop,, which was spared in the
lay off (Tr. 508-09, 533-34).
Respondent has convincingly established that the changeover
from the truck and shovel method of removing overburden to a
complete dragline operation produced a decreased need for
maintenance employees on the trucks and shovels. However, its
decision to lay off almost exclusively from the union-infested
pit maintenance department is suspect 11 •
The truck maintenance shop also was overstaffed as result of
the changeover (Tr. 510). Instead of laying-off employees from
the truck shop, as well as from pit maintenance, Respondent chose
to lay off only from pit maintenance and transfer some of that
department's work to the truck maintenance shop.
It is not
inconceivable that complainants' designation of Wolf and Butero
as walkaround representatives had something to do with this
decision .
In conclusion, I find that the Secretary has met his burden
in establishing that the discrimination complaints of Loy Peters,
Darryl Anderson, and Donald Gregory alleging retaliatory
discharge on July 8, 1993 are "not frivolous." I also find that
the Secretary's decision to seek temporary reinstatement in view
of the record before me is "not frivolous."
ORDER

Respondent i s h ereby ordered to reinstate Loy Peters , Darry l
Anderson , and Donald Gregory to the positions from which they

which all those who engaged in protected activity and/or only
those who engaged in protected activity lose their jobs is a
stronger case ~rom the complainants' perspective than this one.
11

Five of the seven employees initiating the union organizing
drive (Exh. R-29) and eight of the nine whose names appear on the
form designating Wolf and Butero as walkaround representatives
worked in pit maintenance (Exh. G-1, R-33).

2301

were discharged on July 8, 1993, or to equivalent positions, at
the same rate of pay and with equivalent duties.u

Cli{:~kAr-t?ur J. Amchan
Administrative Law Judge
703-756-4572

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U. s.
Department of Labor, 1585 Federal Bldg., 1961 Stout St., Denver,
co 80294 (Certified Mail)
Laura Beverage, Esq., Jackson & Kelly, 1600 Lincoln St., Suite
2710, Denver, CO 80264 (Certified Mail)

/jf

12

Respondent s ubm its that Complainants ' positions no longer
exist at the mine .
Such is the contention in every situation
involving a lay off . The record clearly establishes that there
is work at Respondent's mine that complainants can perform {Tr.
623 - 24) .
Moreover, Congress, in providing for temporary
reinstatement , has determined that when a miner's complaint is
19
not frivolous" the employer must reinstate the miner regardless
of whether it is economically beneficial for the employer to do
so.
Congress· has determined that, when the discrimination
complaint is "not frivolous", the employer must run the risk of
paying a discharged miner whose claim may ultimately fail, rather
than requiring the miner, who may prevail, to go through the
discrimination proceeding without income.

2302

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 220 41

NOV 31993
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF FREDDY THACKER
Complainant
v.

TEMPORARY REINSTATEMENT
PROCEEDING

BLACK DRAGON MINING COMPANY,
Respondent

No. 2 Mine

Docket No. KENT 93-977-0
PIKE CO 93-12

DECISION APPROVING SETTLEMENT

Before:

Judge Maurer

The parties to this proceeding have reached an amicable
settlement and counsel have therefore jointly moved f o r approval
of their settlement, dissolution of my earlier Order of Temporary
Reinstatement, and dismissal of this proceeding with prejudice on
the basis of their settlement agreement.
Accordingly, and for good cause shown, the proposed settlement IS APPROVED, the terms of the settlement agreement are
hereby INCORPORATED BY REFERENCE into this Order , my previous
Or der of Temporary Reinstatement IS DISSOLVED , and upon ful l
satis f act i on of the agreement b y both parties , the motion to
d ismi ss XS GRANTED and the captioned proceeding IS DISMISSED,
with prej udice.

. Maurer
trative Law Judge
Di stri buti on :
Carl c . Charneski, Esq., Office of the Solicitor,
u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certi~ied Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, P.S.C.,
P. o. Box 351, Pikeville, KY 41502 (Certified Mail)
dcp

2303

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

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

NOV

4 1993

CIVIL PENALTY PROCEEDING
Docket No. SE 92-419-M
A.C. No. 54-00333-05504

v.

Arenas Matilde

ARENAS MATILDE INCORPORATED,
Respondent
DECISION

Appearances:

Jane Snell Brunner, Esq., Office of Solicitor,
U.S. Department of Labor, New York, New York,
for Petitioner;
Adrian Mercado, Esq., Law Office Mercado &
Soto, Santurce, Puerto Rico, for Respondent.

Before:

Judge Barbour
STATEMENT OP THE CASE

In this civil penalty proceeding, brought by the Secretary
of Labor ("Secretary") against Arenas Matilde Incorporated
("Arenas Matilde"), pursuant to section 105(d) and llO(a) of the
Federal Mine Safety and Health Act of 1977 ("Mine Act" or "Act"),
30 u. s . c. §§ 815(d) , 820(a) , the Secretary charges the company
wi th t hree v iolations of mandatory safety standards for metal and
nonmetal mines f ound i n Part 56 , Title 30 , Code of Federal
Regulations ("C.F.R."). The Secretary further alleges that two
of the violations constituted significant and substantial
contributions to mine safety hazards ("S&S" violations). Arenas
Matilde denies the Secretary's jurisdiction to cite the alleged
v iolations . The company asserts that i ts product does not enter
i nt o i nterstate commerce nor do i ts operations affect interstate
commerce .
MOTION TO DISMISS AND MOTION POR RECONSIDERATION

Prior to the date of the scheduled hearing, Arenas Matilde
moved to dismiss for lack of jurisdiction. I denied the motion,
stating the issues could best be resolved through the hearing
process, where sworn testimony, subject to cross-examination
would be placed on the record. Arenas Matilde moved for
reconsideration of the denial. Because the motion for
reconsideration was filed shortly before the hearing, counsel for
the Secretary did not have time to respond in writing.
Accordingly, I afforded the parties the opportunity to argue the
motion at the commencement of the hearing.

2304

Arenas Matilde's counsel made clear that the essence of the
company's request for reconsideration was that its produ ct does
not enter i n terstate commerce in that there is " an express law
forbidding the exportation of sand in Puerto Rico. " Tr. 9.
Counsel for the Secretary responded that even if Puerto Rico
prohibits t he exportation of sand, the company ' s operations
affect commerce . She stat ed, "MSHA jurisdiction is very broad"
and that with respect to establishing jurisdiction "[i]t ' s not
only products which enter commerce, it ' s also any operations or
products which affect commerce(,] ( a]nd that ' s about as broad as
you can get." Tr. 10. Counsel for Arenas Matilde cou ntered that
the company can hardly affect interstate commerce if its sand can
not be sold outside of Puerto Rico.
Id.
I den ied the motion for reconsideration.

Tr. 10-1 1 .

SECRETARY ' S WITNESS
Roberto Torres Aponte

Roberto Torres Aponte , an inspector for the Secretary ' s
Mining Enforcement and Safety Administration ( " MSHA") was the
Secretary ' s sole witness. He testified he had been a n inspector
for the past seventeen years and as such had inspected non-metal
mines in Puerto Rico and the Virgin Islands. Prior to joining
MSHA he had worked for eight years as a supervisor for a Puerto
Rican cement plant. Tr . 13 - 14.
Torres stated that he went to Aren as Matilde's operation on
June 24, 1992, in order to conduct a regular health and safety
inspection of the facility.
He descr i bed the activities at the
fa cility: "[T]hey were extracting sand from a pond with a crane
a nd t hey were processing sand with a portable [screening] plant ."
'!'r . 1 7 .

Torres testified the equipment used to conduct the
extraction and screening activities included in addition to the
crane and portable screening plant , two front - end loaders .
Torres was asked whether the equipment was manufactured in the
Commonwealth of Puerto Rico and he responded that he did not
believe so , because there were no factories on the island to make
such equipment . Id . , Tr. 58 . He was of the opinion the
manufacturer of the front-end loaders was Caterpillar and the
manufacturer of the crane or dragline was Bucyrus Erie. Tr. 57 .
(He did not know who manufactured the screening plant. Id.)
A dirt road led onto the operation . There were customers'
trucks (trailers) parked on the operation and they were used to
transport the sand Arenas Matilde ext racted . The g r ound at the
operation was generally flat but there were some banks and holes.
Tr . 44 - 45 , 56- 57.
In addition, there was a trailer (presumably a

2305

house-type trailer) that was used as an off ice. It was on the
property but was located some distance from the area where
employees were working. Tr. 57.
Torres further related that the person in charge of the sand
operation was Adrian Mercado, Jr., the same person who served as
counsel for Arenas Matilde. Tr . 28. Torres maintained that
after he issued the subject citations on June 24, Mercado arrived
at the operation. · Torres stated that he explained the alleged
violations to Mercado and that Mercado had no comment.
Tr. 28, 50.
In addition to describing Arenas Matilde's opera~ion, Torres
testified concerning conditions he observed that he believed
violated mandatory safety standards. Torres stated he saw a
front-end loader in operation and that the operator of the frontend loader was not wearing a seat belt . Torres believed the
front-end loader operator worked for Arenas Matilde because that
is what the operator told Torres. Tr. 21. The operator was
feeding the portable screening plant. In addition, the front-end
loader operator also was in charge of the screening plant and was
selling tickets to customers who came onto the property to buy
sand. Tr. 25, 28-29 . In Torres' opinion, the failure to wear a
seat belt constituted a violation of section 56.14130(g).
Tr. 20.
Torres was asked if there was any hazard associated with the
failure of the operator to wear a seat belt while operating the
loader. He responded that the loader was used on irregular
terrain adjacent to a pond and that the loader operator could be
injured if the loader overturned . Tr . 21 . Torres saw the
l oader ' s t r a cks c lose o f the edge of the pond . Id . Torres
a greed , however , t hat when he observed the alleged v iolation o f
s ection 56.1413 0 (g) t he f ront-end l oader was being operated on
f lat terrain . Tr . 58. Nonetheless, Torres found the violation
to be S&S because "there was a hazard and there was a possibility
t hat an accident [could ] occur there , and it could be of a
s eri ous nature . °' Tr . 22 .
Torres believed the fact the l oader operator was not using a
seatbelt was v isually obvious and could have been observed by
Arenas Matilde ' s management personnel . Tr . 21 .
Torres , issued to the company a citation alleging a S&S
v iolation of section 56.141 30(g). Tr . 20; Exh. P-3.
Torres
cited the alleged violation at 8:00 a.m., but he set the
abatement time for the alleged violation at 7 : 00 a.m. the
following morning. He agreed the front-end loader operator could
have waited until that time to buckle his seatbelt. Tr. 34-35 .
In fact, however, the alleged violation was abated when the
loader operator immediately fastened his seat belt. Tr. 31.

2306

Torres further testified he observed that the front-end
loader operator was working alone. This, according to Torres,
was a violation of section 56.18020. Although there was another
employee in the same general area, the other employee was about
300 to 400 feet from the loader operator -- or, as Torres
described it "far away on the other side of the operation."
Tr. 29. Torres believed the employees had no means of
communication. Tr. 26.
{The other employee was operating the
dragline, extracting sand from the pond. Tr. 29 .)
If the front-end loader operator (the same person who was
not wearing a seat belt) was involved in an accident, Torres
feared no one would help or treat him because no one would see
him. Thus, the lack of observation by another person could have
resulted in a fatality. Tr. 26.
(However, on cross-examination,
when Torres was asked how he knew that the front-end loader
operator could not be seen by the dragline operator.)
He
responded, "I'm not sure, I don't know." Tr . 49. Torres admitted
there was nothing to obstruct ..the employees' vision of one
another and added that " (p]robably once in a while they could
look at each other, but not as frequently as they should." Tr.
55. He explained, "they (were] . . • concentrating on the work
they "(were] doing . . . they [were] operating large pieces of
equipment[.] " Tr. 55 . ) Torres stated he found the alleged
violation to be S&S because "it is a probability that an accident
occur [sic] and could be of a serious nature." Tr. 27.
In Torres' view, Arenas Matilde's management could have
known the front-end loader operator was working alone simply by
observing the situation. Tr. 26.
Torres also .stated he observed that no potable water nor
water c ups were provided in the work area and that as a result
he issued a citation for a violation of section 56 . 20002{a) .
Tr . 22 ; Exh P-4 . Torres was asked whether or not he knew if
running water was in the trailer on the job site and Torres
responded that he had not inspected the trailer. Tr . 49. He
further stated that even if there was water in the trailer , the
water would not obviate the violation because the trailer was
more than 500 feet away and the water "should be in an area where
everybody can go • . . and drink ." Tr. 54 .
According to Torres , the front -end loader operator and the
dragline operator were working in the area. Tr . 23 . Torres did
not believe the lack of potable water could cause an accident,
but he noted that without water the weather in Pureto Rico could
lead to heat stroke "or something like that." Tr. 24 .

2307

ARENAS MATILDE'S WITNESS
Adrian Mercado

Adrian Mercado was sworn as a witness and presented evidence
on the company's behalf. Mercado testified that he was the sole
owner of Arenas Matilde, which Mercado described as a sand
extraction company. The company is located on the Mercado farm,
near Ponce. Mercado described the operation:
A dragline • . . takes the sand out and
places it beside itself. A loader comes and
has to wait until the sand dries a little bit
and takes it to the telescreen which cleans
the sand and there the loader picks it up and
puts it in the trucks which continually are
at the plant • . . •
There is a coritinuous movement of trucks
in and out of the plant.
[T)here is not a plant in the sense that
there is a building. There is no building
there it is open. And there is a loader, a
dragline and the telescreen -- which • • . I
believe was manufactured in Ireland.
[(Mercado stated that he did not know where
the dragline was manufactured. Further, he
"guessed" the front-end loader was
manufactured in "the states." Tr. 66.)]
There is a • • • t ra iler near the sand
extraction operation • • • connected to the
Puerto Rico Aqueduct and Sewer Authority
l ine. The trailer is open when the first
work [er] arrives and it has running water, it
has a faucet .

The sand extracted at the operation , according to Mercado ,
c an only be used for asphalt. Id.
By law it cannot be exported
f rom Puerto Rico . In addition , the equipment at the operation is
i nsured by Puerto Rico American Insurance Company. Mercado
stated that as far as he knew the insurance company did business
solely in Puerto Rico. Further, Arenas Matilde carries no
insurance on or for its employees other than Puerto Rican
workman's compensation insurance. Tr. 65.

2308

ISSUES

The issues are:
l. Whether the Secretary had jurisdiction under
the Mine Act to c i te Arenas Matilde.
2. If so, whether the Secretary proved the
alleged violations existed.
3. If so, what are appropriate civil penalties
for the violations in light of the statutory civil
penalty criteria.
JURISDICTION

Parties• Arquaents
Section 4 of the Mine Act states:
Each coal or other mine, the products of
which enter commerce, or the operations or
products of which affect commerce, and each
operator of such mine, and every miner in
such mine shall be subject to the provisions
of this [Act].
30 u.s.c. § 803. As both parties agree, their jurisdictional
arguments revolve around the question of whether the products or
operations of Arenas Matilde "enter commerce" and/or "affect
c ommerce . 00
•c ommerce 99 i s defined i n part as : " trade , traffic , commerce ,
~ ransportat i on or communication among the several States" and
" State" is defined as inc luding, inter alia, "a State of the
United States • • • [and] the Commonwealth of Puerto Rico."
0

30 u. s.c . § § 802 (b) , 802(c ) .

Such 0'commerce 99 among the several States is interstate
c ommerce and it i s the Secretary's position that Arenas Mati·lde' s
operations affect interstate commerce in that the record
e stablishes the company i s using equipment manufactured outside
t he Commonwealth of Puerto Rico. Moreover, juridiction vests
even if the sand produced at the operation is used locally and
c annot be exported -- that is, even if the company's product
enters into commerce on an intrastate basis.
Arenas Matilde asserts the Secretary has not established his
contention that if machinery was purchased outside Puerto Rico
interstate commerce is affected. Moreover, the fact remains

2 30 9

that the exportation of sand from the Commonwealth of Puerto Rico
is prohibited by law and thus Arenas Matilde cannot possibly
engage in interstate commerce when it sells its product.
A.M. Br. 3-6.
Whether the Secretary bad jurisdiction under the Mine
Act to cite Arenas Matilde?
I conclude that in citing Arenas Matilde the Secretary
properly exercised his jurisdiction. It is clear that in
enacting the Mine Act Congress determined that mining related
accidents and occupationally related diseases unduly burdened
interstate commerce. Section 2(f) of the Act states as much,
30 u.s .c. § 801(f), and as the Supreme Court has recognized:
[I]t is undisputed that there is a
substantial federal interest in improving the
health and safety conditions in the Nation's
underground and surface mines. In enacting
the [Mine Act] Congress was plainly aware
that the mining industry is among the most
hazardous in the country and that the poor
health and safety record of this industry has
significant deleterious effects on interstate
commerce.
Donovan v. Dewey, 452 U.S. 594, 602 (1981).
In its motion for reconsideration, Arenas Matilde appeared
to a rgue t hat t he Commerce Clause of the Consti tution -- the very
c l ause that Congress exercised in seeking to cure the deleterious
e f fects of t he mining industry upon commerce -- i s not applicabl e
necessarily to the Commonwealth of Puerto Rico. If so, it would
come as a great surprise to the legislators who subjected to the
Act " [ e ) ach coal or other mine , the products of which enter
c ommerce , or the operations or products of which affect
c ommerce" , wh o def i ned " c ommerce" as "trade , t r affic , c ommerce ,
t ransportation or communication among the several States, or
between a place in a State and any place outside thereof" and who
specifica lly included Puerto Rico in the Act's definition of
°'State" . 30 u. s. c. §§ 802(b) , 802{c) . Further, it would come as
a n even greater surprise, I expect, to the courts, which long
h ave held or assumed that Congress has the power under the
Commerce Clause to regulate commerce with the Commonwealth.
Trailer Transport Corp. v. Rivera Vazquez, 977 F.2d 1, 7 n 3 . (1st
Cir. 1992). Thus, the question is not whether Congress has the
power to include Puerto Rico within the scope of the Act, but
whether it has exercised that power. As the above quoted
definitional sections of the Act make clear, the answer is,
"yes."

2 31 0

As noted, Arenas Matilde goes on the argue that even if the
Mine Act applies to Puerto Rico, a jurisdictional basis for the
Secretary's case is lacking because Arenas Matilde does not, and
indeed pursuant to Commonwealth law cannot, export the sand it
extracts outside Puerto Rico. While I accept as fact that all of
the sand mined by Arenas Matilde remains on the island and that
the company is barred by law from exporting its product, I
nonetheless conclude the company's operations affect interstate
commerce. Torres testified that he believed the heavy equipment
owned by the company -- the drag line, front-end loaders and
portable screening plant -- were manufactured outside the
Commonwealth in that there are no facilities on the island for
producing such equipment. Tr. 58. Mercado did not know the
origin of the dragline, but he "believed" the screening plant was
manufactured in Ireland and he "guessed" the caterpillar
front-end loaders were manufactured in "the States". Tr. 66. It
is black letter law that a company's ownership and use of
equipment vital to its operations that has been manufactured and
moved in interstate commerce, as at least the front-end loaders
have been, "affects commerce." See United States v. Dye
Construction Co., 510 F.2d 78, 82 (10th Cir. 1975); Secretary of
the Interior, United states Department of the Interior v.
Shingara, et al., 418 F. Supp 693 (D.C., M.D. Pa. 1976); Sanger
Rock & Sand, 11 FMSHRC 403, 405 (March 1989) (ALJ Cetti).
Whether the Secretary has proved the alleged violations?
citation

Date

30 C.F.R. S

3611121

6/24 / 92

56.14130(g)

Torres t esti fied that he saw the cited front-end loader in
operation and that t he operator was not wear i ng a seat belt .
Merc ad o did not d i spute h is testimony . The violati on was cited
at 8 : 00 a .m . • I t is true, as Arenas Matilde points out, that
Torres gave the front-end loader operator until 7:00 a.m. the
f ollowing morning t o abate and that the operator complied much
f aster by buckling the seat belt immediately . Howe ver , it does
not f o llow tha t 91 i f [Are nas Mati lde ] was given time to comply and
t here was compli ance before the time provided had expired a
v iolation c ould not have taken p l ace." A.M. Br. 7 . The
s tructure of section 104(a) , 30 u.s.c. § 814(a) , makes clear that
t he citation of a v iolation during an inspection is separate and
distinct from the fixing of a reasonable time for its abatement.
The extent of the time fixed for abatement may reflect the
i nspector's assessment of the violation's gravity, but it has no
bearing upon his or her finding of the violation's existence.
· Section 56.14130(g) requires the wearing of seat belts on
self-propelled mobile equipment, except when the equipment
operator is operating a grader from a standing position, an
exception not applicable here. Therefore, I conclude the
violation existed as charged.

2 311

Torres testified that he found the violation to be of a
significant and substantial nature because of the possibility
that a serious accident could occur . He further testified that
although, when he observed the violation, the front-end loader
was operating on flat terrain, he noticed its tracks next to the
pond and that the land was of an irregular grade adjacent to the
pond. Torres believed that operating the front-end loader on the
irregular ground with a full loaded bucket enhanced the
possibility of an accident. Tr . 58-59.
Among those elements necessary for the Secretary to prove in
order to establish the S&S nature of a violation is that the
violation presented a reasonable likelihood of injury. Mathies
Coal co., 6 FMSHRC 1, 3-4 (January 1984) .
If, as the Commission
recently has emphasized, a reasonable likelihood of injury is not
equivalent to a "substantial possibility" of injury the same must
be true for the mere "possibility" of injury. Energy West Mining
Co., 15 FMSHRC
, Docket No.• WEST 91-251 (September 27, 1993)
slip op. 4 . Torres' testimony was restricted to the possibility
of the front-end loader overturning . Because there was no
testimony regarding the frequency with which the front-end loader
operated near the pond during the course of a shift, the
frequency with which its bucket was loaded during the course of a
shift, the number of instances in which front-end loaders
overturned at that location, the number of instances when they
overturned while operating under similar conditions at other
locations, or the number of miners who have been injured under
such circumstances, I cannot gauge from the record whether the
failure of the front-end loader operator to buckle his seat belt
presented a reasonable likelihood of injury and I must conclude
the Secretary has not established that the violation was of a
S&S n ature .
Turning to the gravity of the violation, the inspector
believed if the loader overturned it was likely the operator
would have suffered a fatal injury as a result of failing to
b uckle the s eat b elt . The gravity of a v iolation constitutes
b oth the potential i n j ury to the miner and the poss i bility of i ts
o ccurrence .
I accept Torres testimony that there was a
p ossibility the front-end loader could have overturned.
It is
c ommon knowledge that when such equipment overturns and the
e quipment operator is not secured to his or her seat the operator
can be pinned under the equipment or thrown from it and can be
seriously injured or killed. Moreover, I accept Torres testimony
that he observed the loader's tracks adjacent to the pond. The
danger of the equipment operator being thrown into the water or
pinned under it adds yet another dimension to the hazard, this
was a serious violation .

2312

The fact that the equipment operator was not wearing the
seat belt was visually obvious. In failing to ensure that its
employees complied with the standard, Arenas Matilde failed to
exhibit the care required of it. I conclude the company was
negligent.
Citation
3611123

Date
6 /2 4 /9 2

30 C.F.R. S
56 . 18020

Section 56 .18020 states:
No employee shall be assigned, or
allowed, or be required to perform work alone
in any area where hazardous conditions exist
that would endanger his safety unless he can
communicate with others, can be heard or can
be seen.
To establish a violation o f section 56.18020, the Secretary
must prove first that the person working alone is working in an
area where hazardous conditions exist that would endanger his or
her safety. The employee referenced in the citation was the
front-end loader operator. As I have found, he was working at a
job where there was a danger of suffering death or injury should
the front-end loader have overturned. Thus, he was working in an
area where hazardous conditions existed that would endanger his
safety.
However, the Secretary also must prove that the employee
could not communicate with others, or heard by others or be seen
by others , and this the Secretary has failed to do.
Torres
t esti fied that the dragline operator was working 300 to 400 feet
f r om t he f ront-end l oader operator . He also stated the employees
could see one another . Tr . 5 5 . What really concerned Torres was
that b ecause o f the nature of their jobs they might not look at
one another as frequently as he felt was necessary for safety.
Id . Torres concern , while commendable, is outside the
requirements o f the standard .
The Secretary asserts that although the employees may have
h ad v isual contact they could not hear one another and their
b eing outside each other's hearing violated the standard's
i ntent .
Sec . Br .
I do not agree . While, there may be an
i nstance in which employees are so far apart the fact they can
o nly see one another does not c onstitute the type of
" communication" contemplated by the standard, at the approximate
length of a football field, I believe this is not such a case.

23 1 3

I conclude therefore, that the Secretary has not established
the alleged violation.

citation
3611122

Date
6/24/92

30 C.F.R. S

56.20002(a)

Torres testified that he issued the citation because there
was no potable water nor were cups provided in the work area of
the front-end loader operator and the dragline operator. Tr. 22.
He admitted that he did not know if such water was available at
the job site trailer. Tr. 49. Mercado, stated that the trailer
had a faucet with running water and was open to the workers.
Tr. 62.
Section 56.20002(a) requires that "[a)n adequate supply of
potable drinking water shall be provided at all active working
areas." Interestingly, the standard does not specifically
require drinking cups. Rather it prohibits "common drinking
cup[s] and containers from which drinking water must be dipped or
poured" (section 56.20002(b)) and requires a sanitary container
for single service cups where they are provided and a receptacle
for such used cups (section 56.20002(c)).
I conclude the Secretary has not establish the violation. I
accept Mercado's testimony that water, which I infer was potable
since he also stated that it came from the Puerto Rico Aqueduct
and Sewer Authority line, was available at the trailer. Tr. 62.
This means that an adequate supply of potable water was provided.
Torres believed that if there was potable water in the
t he trailer was outside the work area and thus there was
still noncompliance with the standard . Tr . 54 . He described the
t railer as being approximately 500 feet from the work area. Id. I
have no way to judge whether this was outside the "active working
area." The regulations do not define "work area," nor do the
Secretary's enforcement guidelines for section 56.20002, which
are set forth in the Secretary' s Program Policy Manual
( "Manual" ). Department of Labor , Mine Safety and Health
Administration , Program Policy Manual, Vol. IV (July 1, · 19aa) 67 .
Further , the Secretary offered no testimony regarding his
i nterpretion of the term and the criteria by which his inspectors
determine what constitutes such an area. I can only observe that
if , as the Manual states, the purpose of the standard is "to
ensure that potable drinking water is supplied and made available
to all workers . • • to prevent water-deficiency related illness
and to preve.nt workers from drinking ground water," 500 feet does
not seem too far to travel to meet these goals. Id.
~railer ,

The Secretary further argues that Arenas Matilde did not
prove that the employees were told ever that the water in the
trailer was available for their use, or that they were permitted

2314

to go into the trailer. Sec. Br. 9-10. However, these concerns
were not alleged as violations of the standard and are not
relevant to Arenas Matilde's defense of the Secreatry's
allegation.
CIVl'.L PENALTY

I have found Arenas Matilde in violation of
section 56.14130(g) as alleged in Citation No. 3611121.
Further, I have found the violation was serious and that
Arenas Matilde was negligent in allowing it to exist. The
violation was abated immediately. Arenas Matilde is small
in size and has a small history of previous violations.
Exh. P-2. There is no indication that any penalty assessed
will affect the company's ability to continue in business.
The Secretary has proposed assessment of a civil penalty
of five-hundred six dollars ($506), which I find to be excessive.
Given the statutory civil penalty criteria, I assess a penalty
of one hundred dollars ($100).
ORDER

Arenas Matilde is ORDERED to pay a civil penalty in the
amount of one-hundred dollars ($100) for the violation of
section 56.14130(g) as cited in Citation No. 3611121. The
Secretary is ORDERED to vacate Citation No. 3611122 and Citation
No. 3611123. In addition, the Secretary is ORDERED to modify
Citation No. 3611121 by deleting the S&S finding. Payment of the
penalty is to be made to MSHA within thirty (30 days of this
p r oceeding . The citations are to be vacated within thirty ( 30 )
d ays of t his proceeding . Upon receipt o f payment and vacation of
the citations , t his matter i s DISMISSED •

.D~,·d£JJ~,_yz-

David F. Barbour
Administrative Law Judge

Di stri bution :
J ane Snell Brunner, Esq., Office of the Solic itor,
U.S. Department of Labor, 201 Varick Street, Room 707,
New York, NY 10014 (Certified Mail)
Adrian Mercado, Esq., Mercado & Soto, Caso Building Penthouse,
1225 Ponce De Leon Ave., Santurce, PR 00907 (Certified Mail)
/epy

2315

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

NOV

81993

FMC WYOMING CORPORATION,
Contestant

CONTEST PROCEEDINGS
Docket No. WEST 92-174-RM
Order No. 3634714; 11/27/91

v.
Docket No. WEST 92-175-RM
Order No. 3634718; 11/ 27/91
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Respondent

Docket No. WEST 92 -176-RM
Order No. 3634720; 11/27/91
FMC Trona Mine
Mine I.D. 48-00152

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

CIVIL PENALTY PROCEEDING

.

:
:

.

Vo

0

0

0

FMC WYOMING CORPORATION ,
Respondent

Docket No. WEST 92-464-M
A.C. No. 48-00152-05608
Docket No . WEST 92-542-M
A.C. No. 48-00152 -0561 2
FMC Trona Mine

DECISION
~ppearances ::

Matthew F . McNulty, Esq., VAN COTT, BAGLEY ,
CORNWALL & McCARTHY , Salt Lake City, Utah,
for Contestant/Respondent ;
Kristi Floyd, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

Before:

Judge Morris

These contest and civil penalty proceedings arose under the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq. (the "Act"). In the civil penalty proceedings, the Secre2316

tary seeks to impose civil penalties against FMC Wyoming Corporation ("FMC"}.
After notice to the parties, a hearing on the merits took
place in Salt Lake City, Utah.
The parti.es filed post-trial briefs.
STIPULATION

At the commencement of the hearing, the parties stipulated
as follows:
1.
FMC Wyoming Corporation ("FMC"} is engaged in mining
and sel ling of sodium compounds in the United States, and its
mining operations affect interstate commerce.
2.
FMC is the owner and operator of FMC Trona Mine, MSHA
I.D. No . 48-00152.
3.
FMC is subject to the jurisdiction of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801, et~ (the
"Act ") .
4.
matter .

The Administrative Law Judge has jurisdiction in this

5.
The subject citations/orders were properly served by
duly authorized representatives of the Secretary upon an agent of
FMC on the dates and places stated therein, and may b e a dmitted
into evidence for the purpose of establishing their issuance, and
not for the truthfulness or relevancy of any statements asserted
t herein .
6.
The exhibits to be offered by FMC and the Secretary are
stipulated to be authentic but no stipulation is made as to their
r elevance or the truth of the matters asserted therein.
7.
The proposed penalty will not affect FMC's ability to
continue in business.
8.
FMC is a large mine operator with 3,132,680 hours
worked in 1991.
9.
The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to December 9, 1991.

2317

SETTLEMENTS
At the commencement of the hearing, the parties further
agreed to settle certain citations:
1.
As to Citation No. 3634735 FMC seek to withdraw its
contest and pay the proposed penalty of $100.
{Tr. 7).
2.
As to Citation No . 3634706 the parties seek to reduce
the penalty from $1000 to $780. They further noted FMC abated
the violative condition, and it was agreed the accompanying nonpenalty 104{b) Order should be affirmed.
{Tr. 7).
3.
As to Citation No. 3904302 FMC moved to withdraw its
notice of contest and pay the proposed penalty of $1800.
{Tr. 9) •
4.
As to Citation No. 3904303 the parties sought to amend
1
the Citation and reduce the penalty for $206 to $50.
(Tr. 9).
I have reviewed the proposed settlements as stated on the
record and I find they are reasonable and in the public interest.
They should be approved.
STATEMENT OF THE CASE AND ISSUES
No di spute exists as to the three citations issued under
Section 1 04(a ) of the Act. The citations, described hereafter ,
are supported by the testimony of MSHA Inspector Gerry Ferrin , an
electrical specialist. FMC's witness Carl Watson offered no contrary evidence .
The d ispute centers on whether the Inspector abused his discretion in failing to extend the time of abatement when he was
r equested to do so .
Further , the proposed penalties are an issue
i n the case.
§

Citation No. 3634712 alleges FMC vioiated 30 C . F.R.
57.20003. i It reads :

S · 57.20003

Housekeeping.

At all mining operations-(a)
Workplaces, passageways, storerooms, and service
rooms shall be kept clean and orderly;
(b) The floor of every workplace shall be maintained
in a clean and, so far as possible, dry condition.

2318

A quantity of trona had spilled on the stairway by Ell elevator, sesqui shipping; on the
stairway access and on the access to the
valves beside the stairway. The passageway
and stairway was (sic) was not maintained in
a clean and orderly condition.
(Ex. G-2} .
When FMC failed to abate the violative conditions, the Inspector issued Order No. 3634717 under Section 104(b) of the Act.
(Ex. G-2).
Citation No. 3634713 alleges FMC violated 30 C.F.R.
57.12032. 2 It reads :

§

The thermostat in the· restroom in Sesqui
shipping was not provided with a cover over
the 110 VAC terminals. The thermostat was
about 4.5 feet above floor level. The terminals were somewhat recessed so that contact
was unlikely .
(Ex. G-3).
When FMC failed to abate the violative condi tion s, the
Inspector issued Order No. 363 4718 under Section 104(b) of the
Act .
(Ex. G-3).

Where wet processes are used, drainage shall be maintained , and false floors, pl atforms, mats, or other dry
standing places shall be provided where practicable ; and
(c) Every floor wo rking place, and passageway shall be
kept free from protruding nails, splinters, holes, or
loose boards, as practicable.

2

S 57.12032

Inspection and cover plates.

Inspection and cover plates on electrical equipment
and junction boxes shall be kept in place at all times
except during testing or repairs.

2319

§

citation No. 3634714 alleges FMC violated 30 C.F.R.
57.20003 . 3 It reads:
In the old sesqui bagging/shop platform,
housekeeping had not been performed throughout the entire area .
Bags of soda ash had
been dropped in walkways, cardboard, paper,
rags, and metal materi als were strewn about.
(Ex. G-4).

When FMC failed to abate the violative conditions, the
Inspector issued Order No . 3634720 under Section 1 04(b) of t h e
Act.
(Ex . G-4).
DISCUSSION AND FURTHER FINDINGS
On November 26 , 1991 , MSHA I n spector Gerry Ferrin issued Citation Nos. 3634712, 3634713 , and 3634 714. These three Citations
were issued under Section 104(a) of the Act.
(Gov. Exs. G-2,
G- 3, and G-4). On November 27, 1991, approximate ly 24 h ours
later Inspector Ferrin issued a n accompanying 104(b) order for
each Citation.
Evidence as to 104(a) Citations
CITATION NO. 3634712
The area i nvolved i n this Citation was identified as a passage or travelway .
(Tr . 16 , 58) .
Inspector Ferrin considered
the area to be in use because he observed packed-down trona as
well as footprints in the trona.
(Tr. 17). Mr . Watson confirmed the passageway was in use and access had not been
r estricted .
(Tr . 54, 60 , 7 4) .
I nspector Ferrin identified slip, trip, or fall as the
hazard . He believed supervisory personnel traveling t hrough the
area should have recognized the hazard and taken care of it .
(Tr • 16 , 18 , 5 9 ) •
The uncontroverted facts establish a violation of 57.20003
and Citation No. 3634712 s hould be affirmed .

3

Cited, supra fn 1 .

2320

citation No. 3634713

This citation was issued on November 26, 1991, at approximately 10:23 p.m. Inspector Ferrin indicated the conditions
cited presented an electrical shock hazard.
(Tr. 24). He further testified as to the absence of any testing or repairs on the
thermostat.
{Tr. 24). Both management and employees use the
restroom. Mr. Ferrin felt someone should have recognized the
hazard and corrected it.
(Tr. 26).
On the uncontroverted evidence Citation No. 3634713 should
be affirmed.
citation No. 3634714

This Citation was issued on November 26, 1991, at approximately 10:24 p.m. Inspector Ferrin described the area in question as a passageway and mechanic's storage/work areas. A slip,
trip, or fall were identified as the hazards.
Mr. Watson indic ated that access was not restricted to this
area.
In addition, it was possible that a mechanic might enter
the area.
{Tr. 64, 75-76).
Inspector Ferrin thought that someone should have recognized the hazards and taken corrective action.
(Tr. 32).
On t he uncont r overted evidence , Citation No . 3634714 s h o uld
be affirmed.
Order Nos . 3634717 0 3634718, and 3634720

Th e above 104( b ) orders were issued on November 27 , 1991 ,
a pproximately 23 hours after the above 104(a) citations . Because
of t he ci rcumstances surrounding the issuance of the orders , as
we ll as t he e vidence of FMC , all three orders can be discussed
t ogether .
It i s uncontroverted that FMC failed to abate the original
citat i ons .
Section l04(b) of the Act contains the authority for a
failure to abate the order.
It provides:
(b) If, upon any follow-up inspection of a coal or
other mi ne, an authorized representative of the Secretary finds (1) that a violation described in a
citation issued pursuant to subsection {a) has not

2321

been totally abated within the period of time as
originally fixed therein or as subsequently extended,
and (2) that the period of time for the abatement
should not be further extended, he shall determine the
extent of the area affected by the violation and shall
promptly issue an order requiring the operator of such
mine or his agent to immediately cause all persons,
except those persons referred to in subsection (c), to
be withdrawn from, and to be prohibited from entering
such area until an authorized representative of the
Secretary determines that such violation has been
abated.

Inspector Ferrin had originally set the time for abating the
104(a) violations as 4 p.rn. on November 27, 1991. When he returned to the cited areas, approximately 23 hours after the initial citations had been issued, he observed that no apparent effort had been made to abate the violations (Tr. 19-20, 27, 32).
FMC's Representative Watson verified the failu re to abate.
(Tr. 67-72) .
Mr. Watson agreed the time allowed for abatement by the
Inspector was reasonable (Tr. 78). Inspector Ferrin originally
set the abatement time for each citation based on past experience
and upon conversations with Carl Watson and the miner's representative, both of whom had accompanied him on the i nspection.
(Tr. 18) .
DEFENSES

FMC offered several excu ses regarding the failure to abate .
These excuses i ncluded : t he absence of a supervisor or a foreman
on t he i nspection party (Tr . 52) ; (one foreman had called in sick
{Tr. 55) ] •

FMC inspections had not occurred on the s wing shift (Tr .
52 ); t here was no graveyard shift in the cited areas {Tr. 53) .
The vio lations were not of a severe nature (Tr . 70).
Watson stated that he discussed all of the above factors
with Inspector Ferrin before the orders were issued (Tr. 70) .
Mr . Ferrin test if ied that he had considered the nature of
the violations and degree of danger posed by them (Tr. 41).
Among the most important factors was whether the operator had
made a reasonable effort to abate the violations. In fact,
Mr. Ferrin stated that i f a sincere effort has been made to abate
a citation, he will extend an abatement period (Tr. 29, 32). In
this case, however, the Inspector could find no mitigating circumstances or evidence of any effort made to abate the citations
that would allow him to grant an extension (Tr. 23).

2322

Mr. Ferrin believed that a lack of communication that allows
a hazardous condition to continue to exist is not an excuse suff icient to allow an e xtens ion (Tr. 22). Ope ning and maintaining
lines of communication is the responsibility of management and
the breakdown of a communication line can not serve as an excuse
for failing to abate a hazard. Mr. Ferrin also stated that the
absence of a foreman on the inspection would not be a legitimate
reason for an extension (Tr. 42, 44). Similarly, one foreman
calling in sick hardly qualifies as an excuse; production does
not stop when one ma n is absent (Tr. 78).
Carl Watson, a member of management, accompanied Mr. Ferrin
on the inspection and was served with the three original Section
104(a) citations {Tr. 56) . Mr. Watson then gave the citations
to the foreman that was working at the time . The foreman is also
a member of management {Tr. 72). Mr. Watson also informed Jack
Thorner, his boss, of the citations. Mr. Thorner also is a member
of management (Tr. 72) ..
APPLICABLE CASE LAW

Th e factors to be considered in determining wheth er an
abatement period should be extended are {l) the degree of danger
that any extension would h ave caused to miners ; (2) the diligence
of the operator in attempting to meet the time originally set for
abatement; and (3) the descriptive effect an extension would have
had on operating shifts. Youghiogheny and Ohio Coal Company, 8
FMSHRC 330 (March 1986, Maurer, Judge) citing Consolidation Coal
Company , Barb 76- 143 (1976) .
In considering the initial facet , I conclude that the degree
of d a nger caused by an extension of abatement was low . The Secr etary does not claim otherwis e and the 104{a) citations were not
designated as S&S. All three citations indicated that an injury
was "un likely ."
In considering the second facet , it appears the operator was
n ot diligent .
No effort was made to meet the time originally set
f or abatement .
In considering the th ird facet, the record fails to establish that an extension wou ld disrupt the operating shifts.
FMC argues that for at least 15 years MSHA i nspections had
been performed on the day shift. The instant inspection was the
fi rst MSHA "off-shift " inspection.
An inspection during an "off-shift 0 could disclose safety
deficiencies that might n ot be observed during the day shift.
MSHA has considerable discretion in scheduling its inspections .

2323

I am unwilling to conclude that a shift change in inspections
constitutes an abuse of that discretion.
As a further reason in support of its position, FMC asserts
its chain of command was broken because no superintendent or
foreman was able to participate in the inspection.
I am not persuaded the chain of command had broken down.
Carl Watson, a member of management, accompanied the Inspector
and was served with the three original citations (Tr. 56).
Mr. Watson gave the citations to the foreman who also is a member of management {Tr. 72.)
Mr. Watson informed his boss Jack
Thorner of the citations {Tr. 72).
In sum, the communication
lines were well established.
FMC claims an extension should have been granted because of
extenuating circumstances citing Old Ben Coal co., 1 MSHC 1452,
1456 (IBMOA 1976) and Unite·d States Steel Corporation, 1 MSHC
1490, 1492 (IBMOA 1976). These cases are not controlling.
In Old Ben the Interior Board held the Judge abused his discretion in vacating a notice of violation merely because i t contained an unreasonably short abatement period. This issue is not
present in the case at bar.
FMC's witness Watson confirmed that
the abatement time was the next day.
Further, he stated "these
people would have had time to abate the citations on the day
shift the next day" (Tr. 74).
United States Steel Corporation is not factually similar to
the i nstant case .
1 MSHC at 1491 .
For the f oregoing reasons , the 1 04(a) citations and 104(b)
f ailure to abate orders should be affirmed .
CIVIL PENALTIES
The Secretary states that the 104(b) orders should be affi rmed with no penalty and further states that the (b) order
" enhances" the penalty for the 104(a) citations (Tr . 8) .
I reject the Secretary's views that the 104(b) orders "enhance"
t he 104(a) citations . Section llO(i) contains the critical criteria on assessing appropriate civil penalties and no "enhancement" exists in the Mine Act.
Section llO(i) of the Act mandates consideration of six
criteria in assessing appropriate civil penalties.
Considering the evidence, i t appears that FMC is a large
operator with 3,132,680 hours worked in 1997 (Stipulation).

2324

The proposed penalties will not affect FMC's ability to
continue in business (Stipulation}.
FMC's history of previous violations indicated i t was assessed 240 violations for the two-year period ending December 9 ,
1991 (Ex. G-1).

The operator was n eglige nt in that the violative condit ion s
in the two housekeeping violations were open a nd obvious.
In
add ition, the lack of a cover over 110 VAC terminals was open and
obviou s .
The evidence establishes to gravity was minima l. The
Inspector considered any in jury to be "unlikely. "
FMC failed to demonstrate any good faith since i t did not
attempt to achieve prompt abatement of the violations.
Considering the statutory criteria , a penalty assessment of
$100 for each contested violation is appropriate.
For the foregoing reasons, I enter the following :

ORDER
1.

WEST 92-542-M:
Citation No o 3904302 a n d the proposed penalty of $1 , 8 00 .00
are AFFIRMED.
Cita t ion No o 3 904303 and the amended pen alty of $50.00 are
AFFIRMED .

2o

WEST 92-464-M
Citation No . 3 634706 and the amended penalty of $780.00 a re
AFFIRMED o
Order No . 3634707 is AFFIRMED.
Citation No . 3634735 a n d the proposed penalty of $100 is
AFFIRMED .
Citation No. 3634712 is AFFIRMED and a penalty of $100.00
is ASSESSED.
Order No. 3634717 is AFFIRMED.
Citation No. 3634713 is AFFIRMED and a penalty of $100 is
ASSESSED.

2325

Order No . 3634718 i s AFFIRMED.
Citation No. 3634714 is AFFIRMED and a penalty of $100.00 is
ASSESSED.
Order No. 3634720 i s AFFIRMED.

3.

WEST 92-174-RM, WEST 92-175-RM, and WEST 92-176-RM , the
contest cases, are DISMISSED.

Law Judge

Distribution :
Matthew F. McNu l t y I I I, Esq ., VAN COTT , BAGLEY , CORNWALL &
McCARTHY , 5 0 Sou th Main Street #1600 , P . O. Box 45340 , Salt Lake
Cit y , UT 8414 5 ( Certified Mail)
Kristi F loyd , Esq . , Offi ce of t h e Sol icitor , U.S . Department of
Labo r , 1 585 Federal Office Building , 1961 Stout St reet , Denver ,
Colorado 80294 (Cer tified Ma i l )
ek

2326

PEDERAL KINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/ FAX (303) 844-5268

NOV 12 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA}
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 93-171
A.C. No. 05-00294-03503ZW5

v.

Somerset

ART BEAVERS CONSTRUCTION
COMPANY,
Respondent
DECISION
Appearances:

Susan J. Eckert, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
James E. Masson, Esq., Crawford, Colorado,
for Respondent.

mefore g

J udge Cetti

This case i s before me upon a petition for assessment of
civi l penalty unde r section lOS(d} of the Federal Mine Safety and
Health Ac t o f 1977p 3 0 U. S .C. § 801 e t~ , the "Act" .
The Secretary of Labor , o n behalf o f the Mine Safety and Health Administ ration , ( MSHA} , charges the Art Beaver Construction Company
(Construction Company} with the violation of 30 C.F.R .
§ 4 8.28(a).
That safety standard provides that each "miner"
shal l receive a minimum of 8 hours annual refresher training.
The mine inspector issued a 104(g} order alleging that four
of the Construction Company's employees who had not received 8
hours annual ·refresher training were "observed performing laborer
duties at this mines surface." MSHA made a special assessment
and proposed a penalty of $800.
The operator filed a timely appeal contesting the existence
of the alleged violation and the appropriateness of the proposed
penalty.

2 3 27

II
ISSUES

At the hearing the issues raised by the Secretary were as
follows :
1. Is Art Beavers Construction Company an independent
contractor performing services or construction at mines?
2.
Is Art Beavers Construction Company an operator performing services or construction at a mine site covered under the
Federal Mine Safety and Health Act of 1977?
3. Did Art Beavers Construction Company employ individuals
who are considered miners under the Act to perform services or
construction at a mine site?
4.
Did a violation 0£ 30 C. F.R. § 48.28(a) occur as alleged
in Order number 4060714?
5.
nature?

Was such violation of a significant and substantial

Issues raised by the Construction Company were as follows:

1.

Whether the employees of Beavers construction Co. were

miners .
2 . Whether the employees of Beavers Construction Co. were
r equi red to have safety certificates .
3o
Whether t he employees of Beavers Construction Co . were
r egu l a rly o r frequently exposed to mine hazards.

4. Whether the efficacy of the citation was terminated by
t he MSHA official on September 15 , 1992 ; thus rendering the
p enalty a ssessment illegal or i nappropriate .
5. Whether the penalty of excluding the employees from the
p remises of the mine was sufficient penalty .
6 . When did the alleged violations occur. Does the citat ion adequately advise the Respondent of when the alleged violation occurred .
7 . Were the employees of Beavers Construction Co. casual
labor on the mine premises; infrequent laborers and thus not
required to have safety certificates?

2328

STIPULATIONS
At the hearing the following stipulations were read into the
record.
1.

The Commission has jurisdiction in this matter.

2. The subject order was properly served, by a duly
authorized representative of the Secretary, upon an agent of
Respondent on the date and place stated therein and may be
admitted into evidence for purpose of establishing issuance and
not for the truthfulness or relevancy of any statements asserted
therein.
3. The exhibits to be offered by the Respondent and the
Secretary are stipulated ta be authentic, but no stipulation is
made to the relevance or truth of the matters asserted therein.
4. The proposed penalty will not affect Respondent's
ability to continue in business.
5. The company demonstrated good faith in abating the
violations.
6. The certified copy of the MSHA section violation history
accurately reflects the history of this company for two years
prior to the date of the order.
7o
On September 10 , 1992 , the employees of Art Beavers Cons truction Company were cited and ordered from the premises of the
mine at Somerset , Colordo , and on September 15 , 1992 , the order
was terminated because the employees that had been cited received
the annual eight-hour safety refresher course, on September 12,
1992 , by Ed Hayduk .

8. The time cards of the Respondent's employees shall be
admitted for the truth of the matters asserted therein without
the need of the testimony of the company bookkeeper, Patricia
Morse .
9 . The company is a small company for purposes of size and
penalty .

IV
The parties at the hearing presented documentary evidence
and points and authorities in support of their contentions as
well as written and oral argument. During a recess at the
hearing the parties negotiated and reached a settlement of the
case. On the record the parties moved for approval of their oral

2329

settlement. The Solicitor stated that the original proposed
penalty resulted from a special assessment and based on her
conversations with the MSHA District Office during the recess it
was agreed that in view of MSHA's reevaluation of the negligence,
the history of no prior violations, the prompt abatement of the
violation and the small size of the business, the penalty should
be modified to one based on the regular assessment criteria
including the S&S designation of the violation.
Computation on
this basis would result in a penalty of $195.

v
CONCLUSION

Based upon MSHA's reconsideration of the level of negligence, the timely abatement of the violation, the construction
company's lack of penalty history (the company has never been
cited before) and the small size of the construction company's
business, it appears quite appropriate and reasonable to base the
penalty on a "regular" rather than a "special" assessment,
keeping intact and affirming the significant and substantial
characterization of the violation of 30 C.F.R. § 48.28(a). It
satisfactorily appears from the record that the citation should
be affirmed as written and that the appropriate penalty for the
violation in this case is $195.
ORDER

Accordingly it is ORDERED that Order No. 4060714 including
the significant and substantial designation of the violation of
30 C.F.R . § 48.28(a) be and is AFFIRMED and that Respondent , Art
Beaver Construction Company pay a civil penalty of $195 to the
Secretary of Labor within 30 days of the date of this decision.
Upon receipt of payment this proceeding is DISMISSED.

~~

ust F. Cetti
inistrative Law Judge
Distribution:

Susan J. Eckert, Esq ., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Bldg., 1961 Stout Street, Denver, co 80294
(Certified Mail)
James E. Masson, Esq., ART BEAVERS CONSTRUCTION CO., P.O. Box
400, Crawford, co 81415 (Certified Mail)
sh

2330

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

NOV 161993
NICHOLAS RAMIREZ,
Complainant
v.

DISCRIMINATION PROCEEDING

BEAR RUN COALS, INCORPORATED,
MR. DAVID "TOBY" TONEY,
W-P COAL INCORPORATED,
Respondents

. Docket No. WEVA 92-1115-D
. HOPE CD 92-9
.
.

Mine No. 21

DECISION ~PPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a complaint of alleged
discrimination filed by the complainant against the respondent
pursuant to section 105(c) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 815(c). The complainant alleges that he
was laid off by the respondent on May 5, 1992, because he served
as the miners' representative at the mine.
The case was scheduled for hearing in Logan , West Virginia ,
on October 26 , 1993 0 However , the hearing was continued after
t he part ies advised me that they agreed to settle the matter .
They have now fi led their joint settlement proposal pursuant to
Commission Rule 31, 29 C.F.R. § 2700.31, seeking approval of the
proposed settlement.
Discussion
The parties have agreed to the resolution of all matters set
forth in the complaint and have settled the matter. The terms of
the settlement are set forth in an agreement executed by counsel
f or the responaents , and the complainant. All of the parties,
i ncluding the complainant, have singed the agreement.
Conclusion
After careful review and consideration of the settlement
terms and conditions I find that they reflect a reasonable
resolution of the complaint and that the proposed settlement is
in the public interest. Since it is apparent that all parties
are in accord with the agreement for the settlement disposition
of the complaint, I see no reason why it should not be approved.

2331

ORDER
The proposed settlement IS APPROVED . The parties ARE
ORDERED AND DIRECTED to forthwith comply with all the terms of
the agreement. Upon compliance, this matter is dismissed with
prejudice .

u

t?:~

~Koutras

Administrative Law Judge

Distribution:
Mary Lu Jordan, Esq., United Mine Workers of America,
900 15th Street, N.W. , Washington, D.C.
20005 (Certified Mail)
Billy R. Shelton, Esq., Baird, Baird, Baird & Jones, 415 Second
Street, P . O. Box 351, Pi keville, KY 41502 (Certified Mail)
Kurt A. Miller, Esq., THORP, REED & ARMSTRONG, One Riverfront
Center , Pittsburgh , PA 15222 (Certified Mail)
/ml

2332

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

NOV 171993
SECRETARY OF LABOR,
MINE SAFETY AND
HEALTH ADMINISTRATION (MSHA),:
Petitioner
and

CIVIL PENALTY PROCEEDING
Docket No. LAKE 92-279-M
A.C. No. 21-00282-05574
Minntac Mine

UNITED STEELWORKERS OF
AMERICA, LOCAL 19 38 ,
Miners

v.

USX CORPORATION, MINNESOTA
ORE OPERATIONS,
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. LAKE 92-306-M
A.C. No. 21-00820-05676

v.

Docket No. LAKE 92-457-M
A.C. No. 21-00820-05706

USX CORPORATION, MINNESOTA
ORE OPERATIONS,
Respondent

Minntac Plant
Docket No. LAKE 93-5-M
A.C. No . 21-00282-05587
Minntac Mine
DECISION

Appearances :

Miquel J. Carmona , Esq. , Office of the Solicitor ,
U.S . Department of Labor , Chicago , Illinois ,
for Petitioner ;
J ames Ranta , Representative , United Steelworkers
of America , Local 1938 , for Miners ;
William M. Tennant , General Attorney , u.s.s. ,
Pittsburgh , Pennsylvania , for Respondent .

Before :

Judge Barbour
STATEMENT OF THE CASE

These consolidated civil penalty proceedings are brought by
the Secretary on behalf of the Mining Enforcement and Safety
Administration (MESA) against usx Corporation, Minnesota ore
Operations {USX), pursuant to Sections 105{a) and llO{a) of the
Federal Mine Safety and Health Act of 1977 {Mine Act or Act).

2333

30 U.S.C. §§ 815(a) and 820(a). The Secretary charges USX with
five violations of certain mandatory safety standards for surface
metal and nonmetal mines found in Part 56, Title 30 Code of
Federal Regulations (C.F.R.).
In addition, the Secretary asserts
the alleged violations were significant and substantial
contributions to mine safety hazards ("S&S" violation~) .
The alleged violations were cited by MSHA inspectors at
Uffie's Minntac Mine and its Minntac Plant, both of which are parts
of a large taconite operation located in st. Louis County,
Minnesota.
Following citation of the alleged violations the
Secretary proposed the assessment of civil penalties .
USX
answered the Secretary's proposal by denying the violations, and
by asserting in the alternativ e tha t if they had occ urred they
were not S&S.
Pursuant to notice the matters were heard in Duluth,
Minnesota. Miguel J. Carmona represented the Secretary .
William M. Tennant represented usx .
In Docket No. LAKE 92-279-M,
James Ranta represented the United Steelworkers of America
{Steelworkers) , who upon motion and without objection, were
permitted party status.
During the hearing counsels stated they had agreed to settle
the single violation alleged in Docket No. LAKE 92-457-M and one
of the violations alleged in Docket No. LAKE 92-306-M .
THE SETTLEMENTS
DOCKET NO. LAKE 92-457-M

Citation No o
4 097355

Date
6/ 10/92

30 C .F . R. §
5 6 . 1 1001

Proposed Penaltv
$3 09 . 0 0

settlement
$ 309 . 00

Th e cit a t i on a l l eges a S&S viol a tion of section 56 .11001 i n
t hat the floor area alongside a first floor belt conveyor was
wet , muddy and slippery for a distance of 30 to 35 feet.
The
i nspector who i ssued the citation found the condition was due to
u sx ~ s n egligence a nd that one person was exposed to a s l ipp i ng or
fa l lin g hazard as a r esult of the v i olation .
The v i olation was
a bated within the time set b y the inspector .
USX agreed to accept the c i tation and in doing so agreed
t hat a v iolation of section 5 6.11001 , which requires a safe means
of access be provided and ma i nta i ned in all workings places,
occurred.
Further, USX accepted the inspector's S&S and
negligence findings, as well as the inspector's finding that it
was reasonably likely one person would suffer an injury resulting
in "lost workdays" or "restricted duty" due to the violation .
USX further agreed to pay the proposed assessment.

2334

DOCKET NO. LAKE 92-306-K

citation No.

Date

4097197

3 /17/92

30 C.F.R. S
56.12034

Proposed Penalty

settlement

$288.00

$50.00

The citation a l leges a S&S violation of section 56.1203 4, in
that two lights located 71 inches above· the walkway to the pan
feeder furnace disconnects were not guarded .
The inspector who
iasued the citation found the condition was due to USX's low
negligence and that one person was exposed ·to a burn or shock
hazard should he or she hit the lights. The violation was abated
within the time set by the inspector.
USX agreed to accept the violation and the inspector's
f i nding of negligence, and the Secretary agreed to vacate the
inspector's S&S finding because, in counsel's opinion, the
Secretary could not prove that allegatio n. Counsel stated that
without the S&S f i nding and given USX's "low negligenc e," a $ 5 0
civil pena l ty was appropriate·. USX agreed to pay that amount.
APPROVAL OF SETTLEMENTS
There is no indication payment of the agreed upon penalti es
wi l l adverse ly affect USX's ability to continue in business. usx
is large in size. The mine and plant have a large history of
previous assesse d violations. Pet. Exh's. 9 and 10. Based upon
the representations of counsel and the civi l penalty criteria, I
conclude the penalties agreed to for the settled violations are
appropriate and that the s e ttlements are reasonable and in the
public interest. Therefore, they are APPROVED.
I will orde r
p ayment of the c ivil penalties and vacation of the S &S finding a t
t he c los e of t h is d e cis i on .
CONTESTED VIOLATIONS
STIPULATIONS
Prior to taki ng evi dence on the c ontested violations t h e
p arties stipu lated as fo l l ows :
1. That USX ' s Minntac o peration is subject t o
t h e j u ri sdicti on o f the Mine Act a nd that the administra t i ve
l a w j udge has jurisdi ct i on t o hear and decide the
p roceedings ;
2. Tha t c i vil penalties assess for any of the
a l leged violat i ons wil l not affect the ability of USX
to continue in business;
3. That usx exhibited good faith in abating all
of the alleged violations in a timely fashion.
Tr. 10.

2335

DOCKET NO. LAKE 92-279

Citation No.

Date

30 C.F.R. S

Proposed Penalty

3893134

1/14/92

56.14214(b)

$350.00

Citation No . 3893134 alleges a violation of mand3tory safety
standard section 56.14214(b) and charges:
At the East Pit, the [No.] 968
Locomotive train went thru the RR crossing at
the [No.] 81 Dock, without sounding the h~rn.
The RR Xing was a double track in which a
train had just cleared the Xing heading West
on the front track and the inspection van was
waiting to cross the tracks. The No. 968
Locomotive train was heading East on the
second track in which it was coming from the
blind side because the view was blocked by
the other train.
Pet. Exh. 1. The standard states that "[a] warning sound that is
audible above the surrounding noise level shall be sounded -[w] hen trains approach persons, crossings, other trains on
adjacent tracks[ . ]" The parties agree that the train did not
sound its horn at the crossing and thus that a violation of the
cited standard occurred. They are at odds over whether the
violation was S&S.
As is by now well recognized, the Commission has established
f our elements that must be proved by the Secretary in order to
e stablish the S&S nature of a violation . Cement Division,
National Gypsum Co ., 3 FMSHRC 822 , 825 (Apri l 1981) ; Mathies Coal
co. , 6 FMSHRC 1 , 3 - 4 (J anuary 1984 ). Here , as i s usually the
c ase , the quest i o n i s whether the third element has been
satisfied ; that is , whether the Secretary has proved that the
f ailure of the locomotive to sound its horn at No. 81 Dock
rai lroad crossing was reasonably likely to have resulted in an
i njury p roduci ng a c c ident .
The i nspector who cited the violation , Leon Mertesdorf ,
t esti fied there are two tracks at the crossing and that a
westbound train had just cleared the crossing when an eastbound
train approached at a speed of 30 to 40 miles per hour and failed
t o sound its horn . According to Mertesdorf, the westbound train
obscured the v iew of those in the van and they could not see the
eastbound train coming. In addition, Mertesdorf believed the
train operator's vision of the van equally was obscured.
(Mertesdorf also stated he had seen the eastbound train earlier
in the inspection party's travels and he warned the van driver,
Randy Pond, that another train was on the tracks. Tr. 40.)

2 3 36

The tracks were used by trains that carried ore. The train
that was headed east was empty, the train headed west was loaded.
Tr. 21. The tracks formed the main haulage route for trains
coming into and out of the west pit. Tr. 39. Mertesdorf
believed approximately 15 trains went into and out of the pit
during the course of a shift. Id. The road crossing ~he tracks
was the main route from the east pit into the west pit. Tr. 38.
Mertesdorf was of the opinion that "a lot of service vehicles"
used the road each shift. Tr. 39.
Mertesdorf explained that because the eastbound train was
not immediately visible, the normal reaction of a driver who had
stopped at the crossing would be to proceed over the tracks and
through the crossing once the westbound train had cleared the
crossing. Tr. 24, 25. (There were stop signs on both sides. of
the crossing and railroad crossing signs at the crossing. The
crossing did not have an audible signal. Tr. 37 .)
Given the speed with which the westbound train approached
the crossing, Mertesdorf believed an accident was reasonably
likely. Tr. 29, 32. Mertesdorf stated that he had issued
approximately three other citations at the mine for the failure
of train operators to sound their horns. Tr. 35.
Randy Pond, a USX safety engineer at the mine, accompanied
Mertesdorf during the inspection. He drove the van in which the
i nspection party was riding. He noted that Mertesdorf failed to
mention the presence of a third track south of the two tracks on
which the trains were located. The van had already crossed this
track and had stopped between the third track and the double
t rack when the eastbound train passed the crossing. Tr . 43-45;
E~h . R- 1 .
Pond maintained tha t e ven though he knew a t rain othe r
~ha n the westb ound t ra i n wa s somewhere on t he tracks and might b e
a pproaching , h is v i sion wa s n ot t otally obscured and he could see
~he e astbound train prior t o i t c lear i ng the crossing .
Pond was of the opinion that it was not reasonably likely
t hat t he f ai l ure to sound the train vs horn would have contributed
to a n a ccident b ecause :
I wasn vt going to cross the tracks until I
c ould see if any thing was coming . I never
do .
I would never be f lying across there in
the blind .
Tr . 4 6 .

Ranta, who not only represented the Steelworkers, but who
also testified on their behalf, stated that pursuant to company
rules, trains are supposed to make two long and two short horn
blasts when they approach a crossing. Tr. 49; USX Exh. 1.

233 7

In arguing that the violation was not S&S, USX points out
that Pond had stopped the van 20 to 25 feet away from the train
track and waited for the train to clear the track before
proceeding across and that Pond was aware of the presence of the
train despite the fact the locomotive operator failed to sound
the horn. Thus, at most, the evidence established "o_nly that, on
a single occasion, the operator failed to sound a horn as the
train approached a crossing where a vehicle was waiting to cross
when it · was safe to do so [and that] [u]nder th [ e]se
circumstances, it was not reasonably likely that an event
resulting in an injury would occur." USX Br. 11.
The problem with USX\s argument is that it is focused upon
the factual situation at the time of the violation. The concept
of "reasonable likelihood" encompasses not only what happened at
the time the violation occurred but also what reasonably could
have been expected to h a ppen if the violation continued to exist
during the course of continuing normal mining operations . See
Halfway, Inc., 8 FMSHRC 8, 12 (January 1986). Thus, I must
consider not only what happened on January 14, but also what
reasonably could have been expected to happen had the conditions
been repeated during continued normal mining operations.
In this latter regard, it is important to note that the
r ailroad crossing where the violation occurred was not an
isolated, seldom used crossing. Rather, I accept Mertesdorf ' s
testimony that the road crossing the tracks was the main road
between 'the east and west pits and that it was used by many
service trucks dur i ng the course of a shift. In addition, I
accept his statement that during the same period of time the
tracks were traveled by approximately 15 trains into and out of
t he pit .
I als o c redit Mertesdor f ' s testimony that the westbound
blocked his v i ew of t he eastbound train . Although Pond
t estified that he saw the oncoming train (Tr.4 3 ) and whi le this
may well have been so, I believe, along with Mertesdorf, that h e
most l ikely had seen it earlier when Mertesdorf pointed i t out
a n d was aware t herefore i t mi ght be approaching . Thus , Pond wa s
a l erted t o b e 0 ~ on t h e l ookout" at the crossing . I cannot assume
o ther d rivers a l ways woul d have Pond ' s heightened awareness.
~ra i n

Given the train traffic at the crossing, it seems clear that
d uring the course of continued normal mining operations eastbound
a nd westbound trains would have met there again.
It also seems
c lear that not every driver of a vehicle would have been as
careful as Pond, who after all was driving a federal inspector
and who, as I have found, was alerted to the possibility of an
approaching train . Pond may always have stopped at the crossing
when his vision was in any way obscured and not proceeded until
he had good visibility but Pond was not everyman, and I cannot
leave common knowledge of everyday behavior outside the S&S

2338

evaluation. Drivers do not always stop at railroad crossings,
which I assume is the reason USX implemented the standard by
requiring the sounding of two long and two short whistles when a
train approached the crossing.
As Mertesdof testified, other train operators had failed to
sound their horns at crossings. It has happened prev1ously, there
is no reason to think it would not happen again. Given the
reasonable likelihood that during continued normal mining
operations the vision of drivers at the crossing would have been
obscured by passing trains, given the fact that drivers do not
always check for safe clearance before proceeding to cross the
tracks, given the speed of westbound trains passing the cross ing
and given the amount of rail and road traffic at the crossing, I
conclude that it was reasonably likely that during continued
mining the conditions cited by Mertesdorf would have recurred and
would have been reasonably likely to result in a potentially
fatal accident. I therefore find the violation was S&S.
USX does not contest Mertesdorf 's other finds regarding the
violation.
Tr. 54. On the basis of those findings, I conclude
the violation was serious and was due to negligence on the part
of USX. The mine has a large history of previous violations.
Pet. Exh . 10.
In the 24 months prior to June 10, 1992, there
were five citations of section 56.14214(b) that were assessed and
paid. Id.
I will assess an appropriate civil penalty for the
violation at the close of this decision.
DOCKET NO. LAKE 93-5-M

citation No.
'h 09747 4

Date
7/ 7/92

30 C.F.R. S
56 . 15005

Proposed Penaltv
$204.00

The citation charges as foll ows :
At the West Pit, on the [ No.] 32
stripping shovel, an employee was outside the
operator 9 s cab climbing a ladder to the top
catwalk/platform above the operator 9 s station
while the shovel was operated by another
shovel operator , swinging to load a truck .
The employee was not in a secure position
while the shovel was in swinging operation.
There was a danger of him los i ng his grip and
falling to the shovel roof, 5 to 6 feet
below.
Pet. Exh. 3.
In pertinent part the standard requires that
"(s]afety belts and lines shall be worn when persons work where
there is a danger of falling."

2339

Mertesdorf testified that during the course of an inspection
of the mine on July 7, 1992, the inspection party had parked
the vehicle in which it was riding in order to observe the
Bucyrus-Erie electric mining shovel in operation. While the
shovel was digging, a person emerged from the operator's
compartment and climbed the ladder at the rear of the compartment
to the top of the compartment. Tr. 546~ 5 7; see Pet. Exh. 4. The
person walked to the front of the compartment roof, turned and
wiH.ked back and then climbed down the ladder. Tr. 57-58;
Pet. Exh. 4. There was another person sitting on the roof taking
pictures with a video camera. Mertesdorf believed both persons
were involved in making a training video. Tr. 62, 66.
Originally, Mertesdorf cited USX for a violation of
section 56.9200(d), which prohibits transportation of persons
outside the cab of mobile equipment. However, one week prior · to
the hearing, counsel for Secretary moved, without objection, to
amend the citation to a violation of section 56.15005. Mertesdorf
understood the change was made "[b]ecause our attorneys said that
the man wasn't being transported." Tr. 64, see also Tr. 65.
The ladder the person climbed was approximately 5 to 6 feet
high.
In Mertesdorf 's opinion the hazard was that the person
c ould have fallen off the ladder or off the roof of the
operator's compartment due to the "jerking and swinging" of the
shovel. Tr. 58. Mertesdorf believed the shovel should have been
stopped while the person climbed the ladder. Short of that, the
person should have tied off while climbing the ladder. In
addition, the person should have had a safety belt and have
secured it to the handrailing that ran around the compartment
r oof once he had reached the roof . Tr . 60 . Mertesdorf , however ,
admitted he h a d never seen anyone tie off when c limbing such a
~ adde r a n d he did not know what p urpose would h ave been served by
u sing a s a fet y b e lt on t he r oof . Tr . 65-66 .
(As Pet . Exh . 5
clearly s hows , t here was a two-rai l railing around the roof. )
Because of the movement of the shovel , Mertsdorf believed i t
wa s r easonably like ly the person would have lost his grip and
~allen and h ave suffered a l ost t ime i njury .
Tr. 61 .
In hi s
opinion , s uch a f al l could have resulted in a sprai ned ankle o r
wrist or a strained foot . Tr . 62 .
To p rove a v iolation of section 56.15005 , the Secretary must
e stablish the person climbing the ladder and walking on the roof
was i n danger of falling. Moreover, the danger must be that of
an injury produced by the fall and prevented by the wearing of a
safety belt or line. The record does not support finding that
falling from the 5 to 6-f oot ladder would have produced an
injury. Moreover, as Mertsedorf ultimately seems to have
recognized, it was utterly impractical to expect the person to
tie off while climbing the ladder. Further, once the person was
on the top of the operator's compartment, the railing made it

23 40

unreasonable to expect that he would fall from the roof, even
though the shovel was jerking and swinging, and the record does
not support finding that falling to the roof would have produced
an injury preventable by wearing a safety belt or line.
Mertesdorf probably was right in stating that th~ person
should not have been on the ladder or been walking on the roof
while the shovel was in motion, but that concern is not addressed
by-the standard the Secretary ultimately chose to allege was
violated. Thus, I agree with USX that the Secretary has failed
to sustain his burden of proving that a violation of section
56.15005 existed and that the citation should be vacated. usx
Br. 11-12.
Citation
4097478

Date
7/13/92

30 C.F.R. S

56.17001

Proposed Penalty
$288.00

The citation charges as follows:
At the far-west pit, the (No.] 28 P&H 2100 BL
shovel had inadequate lighting at the
boarding ladder and walkway. The light at
the shovel house entrance was broken and the
light bulb at the top of the stairs, and
operator cab entrance, was burned out, plus
the top of the shovel roof A-frame had both
lites (sic] burned out. The whole boarding
area of the shovel was dark after daylight
hours.
Pet . Exh . 5 . The standard states that "[i ] llumination sufficient
to p rovi de safe working conditions shall be provided in and on
all s urface structures 0 paths , walkways , stairways ••• and work
a r eas . 0•
Mertesdorf issued the citation at 1:30 p.m., during daylight
hours .
He stated , however , that as a general rule , when he
i nspected a shovel he not only l ooked at the conditions in
e x istence when he conducted the inspection , he anticipated the
k i nd o f conditions that would be present during later shifts that
d ay. Tr . 70 .
The shovel was used by USX to dig ore and load railroad
c ars . Tr . 72. Mertesdorf maintained that upon inspecting it he
observed that all lights used to illuminate the boarding area
were out. (By "out" he meant that a few were missing but most
were burned out. Tr. 73.) In describing the lack of lighting in
the boarding area, Mertesdorf stated that the lights under the
shovel's carriage (approximately nine to twelve lights) used to
illuminate the ground were out, as was the light above the ladder
that a person had to climb to board the shovel and the light used
to illuminate the stairway to the operator's compartment.

2 34 1

Additionally, lights were out on the A-frame, lights that
illuminated the area in back of the shovel and the work cages and
platform at the top of the shovel. Tr. 72-73, 75-76, 81.
(The
A-frame is part of the structure of the shovel and it rises above
the operator's compartment and the compartment housing the
shovel's engine. Tr. 73; See Pet. Exh. 4.) Except for the
lights on the A-frame, most of the missing and burned out lights
were "regular household lamps," that is, 75-watt to 100-watt
..

bttibs. Tr. 76, 84.

Although there were large "beacon lights" on tae front of
the shovel, they directed most of their light forward .
Mertesdorf also recalled $eeing a large light at the back of the
shovel. He agreed that it would "pretty well light up the back
of the shovel." Tr. 85 . Mertesdorf believed the illumination at
the shovel was insufficient to assure safety because "if there
[are] no lights burning at all, it's going to be dark" and
"because of the rugged terrain and the access to the shovel,
being it was so rough and so hard ••• it was reasonably likely
that a person could fall and the injury ••• would be at least a
sprain or a strain ••. from the fall . Tr. 78. The fact that a
person ·entering the shovel would have had to use a flashlight
while climbing the ladder to board the shovel added to the
likelihood of injury. Tr. 79.
(Pond, who accompanied
Mertesdorf, believed an employee would have put the flashlight in
a tool bag and used both hands to climb the ladder . Tr . 106.)
Mertesdorf found the alleged violation was S&S, and he stated it
was reasonably likely a lost time injury would have occurred
because of the insufficient illumination. Tr. 78. He also
believed the condition of the lights was due to USX' negligence.
Tr o 80 o
Mertesdorf did not }{now when the cited shovel last had
worked at n ight . Tr. 76 , 83. Because he never saw the shovel at
night he did not know how much illumination the lights that were
operating actually provided. Tr . 83. While he stated that it
was not unusual for a shovel to have some lights burned out, he
0
~ drew the line 99 and found il lumination was insufficient when he
saw 91 the lights were burned out to the extend where I [did not]
see a safe entrance for the man to get on board ." Tr . 87.
In general , he would not issue a citation for a violation of
section 56 .17001 unless there was an area that was so dark he
could not see or unless there was an area totally lacking in
l ights. Id .
Pond, identified shovel lights that were working when the
violation was cited.
(These lights are depicted on photographs
of the cited shovel. Resp. Exh's. 1 and 2 (LAKE 93-5-M.)
According to Pond, four lights faced forward: a 150-watt high
pressure sodium light, a 400-watt mercury vapor light, a 300-watt
flood light and a 300-watt quartz light.
(Pond stated that the
average street light is 150 to 200-watts.) The top two lights

2342

were placed at a 45° angle and gave some light to the side, as
well as to the front. Tr. 94. Pond also confirmed that a
300-watt floodlight is on the back of the shovel. Tr. 95. Pond
was uncertain, .however, whether lights other than these were
operating on the shovel and although he disagreed "strongly" with
Mertesdorf about the number of lights that were out, he did not
know the number. Tr. 96, 102-103.
Pond identified a USX document purporting to specify the
work history of the shovel. Resp. Exh. 3 (LAKE 93-5-M). The
document indicated that from July 5, until the shift on which
the citation was issued on July 13, the shovel was operated a
total of 3 hours while it was dark. Tr. 97-98. Pond also
identified shift reports for those shifts the shovel was running
between July 5 and when the citation was issued. Resp. Exh. 4
(LAKE 93-5-M). The reports, which were completed by the shovel
operators and on which the operators were asked to indicate any
repairs needed, contained no reference to any problems with
illumination. Id.; Tr. 99. Pond stated that during the hours
when it wa s dark and the shovel was operating the only person who
worked on the shovel was its operator. Tr. 100. Finally, Pond
was of the opinion that there would have been sufficient
illumination to board the shovel at night because "We didn't get
anybody to say anything different." Tr. 101.
The question of whether a violation occurred is dependent
upon the amount of lighting provided in the areas where work was
being performed (or would be preformed during continued normal
mining operations) , taking into account any hazards presented by
the lack of adequate lighting. Whether illumination was
sufficient to provide safe working conditions presents a question
of fa ct u and , given the general nature of the standard, which
c overs a multitude of l ocations and work activities , the question
u sually will i nvolve a subjective judgement on the i nspector ' s
p art o However , there is a point at which an inspector's
determination may be so subjective it does not provide a basis
for a factual finding regarding whether the illumination was
sufficient to provide safe working conditions , and I conclude
t hat point h as been reached here .
First , Mertesdorf cited the violation during daylight hours
a nd did not observe the shovel working at night. Tr. 83.
Second , he cited several different areas as lacking in sufficient
illumination , but what really concerned Mertesdorf was the lack
of l ight at the ladder and undercarriage (although he did not
include nonfunctioning undercarriage lights in the body of the
ci~ation), which, in his opinion, made it unsafe for a person to
board the shovel at night. Tr. 87. He would not have found a
violation had there been illumination sufficient to allow safe
boarding. Id.

23 43

I accept Mertesdorf 's testimony that no lights were working
in the boarding area. However, Mertesdorf agreed that there were
other working lights on the shovel, and Pond credibly described
the five floodlight-type lights that were operating on July 13,
1992. Tr. 84, 94. Mertesdorf further agreed these other lights
would have provided "a little diffused" lighting. Tr. 84.
Obviously, he could not say how much because he had not seen the
shovel after sundown. Thus, even if I fully credit the
iASpector's testimony, which I do, this is not a situation where
the work area in question -- the shovel boarding area -- would
have been without light entirely. See Kaiser Steel Corp.,
2 FMSHRC 703, 721-722 (March 1980) (ALJ Koutras). That being the
case, without more objective testimony regarding the actual
illumination at night, I cannot find the Secretary has
established the illumination was insufficient to allow a person
to safely board the shovel, and I must therefore vacate the
citation.
DOCKET NO. LAKE 92-306-M

Citation No.
4097196

Date
3/17/92

30 C.F.R. S

56.14112(b)

Proposed Penaltv
$1,019 . 00

The citation charges as follows:
The guard on the west side of the 001-03
main conveyor, protecting the undercarriage
snubber pulley near the head pulley, was not
kept in place. The conveyor was in
operation, and a clean-up hose was observed
extending approximately 3-feet under the
belt . A person extending his arms or upper
t orso through the unguarded opening would be
exposed to the pinch point approximately 18
i nches above and to the right.
Pet . Exh . 6 .
The standard states that "[g)uards shall be
s ecurely i n place while machinery is being operated , except when
t esti ng or making adjustments which cannot be performed without
r emoval of the guard . 90
The citation was issued by Arthur J . Toscano at the plant.
Toscano was accompanied during the inspection by USX supervisor
o f safety Robert Tomassoni and miners ' representative Tim Kangas.
The inspection party went first to the building housing the
crusher and there waked the 00103 conveyor belt, which was
operating. · (Toscano estimated the conveyor runs at 400 to
500 feet per minute. Tr. 133 . ) The conveyor belt is
approximately 4 feet wide. On the west side of the belt, just
past the head area, Toscano noticed a conveyor belt guard in a
raised position. The guard was hinged at the top and had been

23 44

raised and wired open to create a opening approximately 3 feet
square in size. Inside the opening was the moving snub
pulley and the moving bottom portion of the conveyor belt.
Tr. 112, 117.
(A "snub pulley" is defined as "[a]n idler pulley
so mounted as to increase the arc of contact between a belt and a
drive pulley." U.S. Department of the Interior, A Dictionary of
Mining, Mineral and Related Terms (1968) at 1036.) A- hose ran
into the opening and the hose was spraying water under the snub
plrlley. · The floor beside the opening was wet and slippery.
Tr. 112-113.
Toscano believed the running hose was used to clean a
troublesome spot under the belt -- a spot where "a buildup of mud
and material would cause the belt .•• to start slipping and
clogging up" unless the spot frequently was cleaned. Tr. 114.
He explained that wet, muddy spillage clings to the belt and
drops off of the belt at the pulley. Tr. 117. The pulley and
the conveyor belt created a pinch point, that according to
Toscano was located approximately 1 1/2 foot above the mine floor
and a few inches to the right of where the guard ended. Tr. 115.
Thus, the frame of the guard offered 2 or 3 inches of protection
from the pinch point. Tr. 131.
Although Toscano did not see anyone working in the vicinity
of the open guard on July 17, and there were no footprints next
to the cited opening, he believed the area was cleaned several
times each shift, and he stated that a person cleaning under the
belt and pulley with a hose while the guard was raised could slip
into the pinch point. Tr. 116-117, 122, 124.
Further , although it was a practice at the plant to leave
h oses runn i ng unattended under belts to wash away spillage ,
Toscano believed the amount of spillage disposed of in this way
was l imited and that to clear the entire area under the belt a
miner would have had to direct the hose. Tr. 122-123. The miner
would have to crouch to see under the belt and the pressure on
the hose would cause the miner to lean toward the pinch point to
control t he hose . Tr . 1 16-117 . If a pressure failure occured ,
Toscano believed the miner could loose his or her balance and
slip or f all through the opening created by the raised guard into
t he pinch point . Tr . 116. (Normally, the hose was under high
p ressure , although on July 17 the pressure appeared to be reduced
by the partial shut off of a valve . Tr . 123.)
The position of the hose indicated to Toscano that when a
person cleaned with it, the person would have been very close to
the opening -- just a matter of inches from it. Tr. 118. He
agreed if the hose had sufficient pressure the person cleaning
with it could have remained outside the unguarded area and
cleaned, but he explained the temptation would be to get as close
to the spillage as possible to ensure that all of it was cleaned.
Tr. 126-127. Moreover, any person reaching into the opening to

2345

pull the hose out would have his or her arm inches from the pinch
point. Tr. 125.
Toscano feared that any person walking by the raised opening
could loose his or her balance and fall into the opening, reach
an arm out to catch himself or herself ~nd be pulled ~nto the
pinch point. Tr. 119. Not only was the floor slippery, but the
hose itself created a tripping hazard. However, he did not think
ir"highly likely" this would happen. Tr. 119.
Toscano found the alleged violation was due to·usx•s
negligence. Pet. Exh. 6; Tr. 120-121. To abate the violation,
the inspector required th~ guard to be welded to the frame of the
conveyor "so that an employee unbeknownst to supervisor people
couldn't be able to just lift up the flap and poke around or work
around near that opening." Tr. 121.
Tomassoni was USX's sole witness. He described the raised
guard as being approximately 2 by 3 feet in size . He agreed with
Toscano the hose was under the belt. He described water as
"trickling out" of the hose.
According to Tomassoni, hosing spillage from under the
belt is a very common practice at the mine. Also, according to
Tomassoni, USX employees are instructed not to work within 18
inches of a belt and not to reach under the belt to hose down
spillage. Tr. 137. In addition, there is no need for an
employee to go under the belt to recover a hose. ,lg.
Normal
water pressure at the mine is 90 PSI, and Tomasooni believed that
pressure to be sufficient to wash down spillage and to do so from
1 0 to 25 feet away from the spillage . Tr . 138-139.
Tomassoni described the conveyor belt as running above the
s nub p u lley . Because o f t his , the pinch point was positioned
a pproximately 18 inches above the metal frame of the belt
structure. Tr. 141; Resp. Exh. 1 (LAKE 72-306-M).
In order to
r each the p i nch point an employee would have to "take his arm and
a ctually extend i t up behind the side frame of the conveyor . "
Tr. 14 2 . Thus , Tomassoni ma i ntained that because of the position
of the pinch point there was no away a person could become
entangl ed i n the pinch point without intentionally reaching into
it. Moreover , the conveyor belt frame prevented a person from
fa l ling i nto the pinch point. Tr. 143. Further, the snub pulley
b ear i ng housing , which Tomassoni described as a "massive piece of
s teel " also provided protection against a person coming into
c ontact with the pinch point. Tr. 145.
Toscano was recalled as a witness following Tomassoni's
testimony and stated he agreed that the position of the snub
pulley provided partial protection from the pinch point.
However, he believed that a person could contact the pulley "very

2346

easily" by reaching in to grab the hose and having a sleeve
caught on the moving belt. Tr. 149.
USX does not contest the violation. Rather, it argues
Toscano incorrectly found the violation was S&S. Tr. 113.
Here again, the critical question is whether the Secr~tary has
proven that the failure to keep the guard securely in place was
reasonably likely to have resulted in an injury producing
accident. On balance, it seems to me the answer is "yes."
While I find Tomassoni accurately described the position of
the pinch point as being above and behind the side frame of the
conveyor belt and while I conclude that this position made it
impossible for a miner to inadvertently come in contact with the
pinch point per se, I also am persuaded that Toscano was right in
noting that a miner's clothing could snag on the belt as it
rounded the pulley and that if this happened the miner easily
could be dragged up into the pinch point. Tr. 148. Obviously,
if such an accident happened, the miner would be subjected to the
possibility of serious injury -- or perhaps of death.
Obviously, as well, for such an accident to have been
reasonably likely, miners must regularly have been adjacent to
the unguarded snub pulley. I conclude they were.
I note
especially Tomassoini's testimony that the hosing of spillage was
"very common" at the plant, and I conclude that miners frequently
were in an area of the open guard. Tr. 137. I am persuaded also
that it was likely for a miner to slip or fall in the area. With
"very common" hosing under the belt, I conclude the floor area
adjacent to the opening was frequently wet and slippery. Even a
person crouching next to the raised guard could have slipped and
r e ached in to steady himself or hersel f, and once within the
confine d and unguarded area adjacent to and under the belt ,
c ontact with t he moving belt was reasonably likely.
I do not accept Tomassoni's opinion there was no need for
miners to reach into the opening. Tr. 1 37. Rather, I accept
Toscano 's testimony that there would be times when the nozzle of
t he hose would snag under the belt (Tr . 125) and that in those
i nstances a miner would be required to reach under the belt
adjacent to the snub pulley to unsnag it. Further , and more
important , the guard had been raised for some reason and,
certainly, the most likely reason suggested by the record was to
all ow miners closer access to spillage under the belt in order to
b etter hose it .
(USX, who controlled the area involved, offered
no alternative explanation for why the guard was raised.)
In
addition, I fully agree with Toscano that with the guard raised
"the temptation would be [ for miners] to get up as close as they
could to clean [ the spillage ] and I infer that there would in
fact be times when miners would reach within the open area to do
so. Tr. 126-127. While Tomassoini may have been right that
spillage could be washed away from a distance of 20 to 25 feet,

2347

it is unrealistic to assume such always was the case. Spillage
varies in size and content. Water pressure also can vary.
For all of these reasons, I conclude the failure of USX to
keep the guard securely in place was reasonably likely to have
resulted in a accident resulting in injuries of a reaponably
serious nature and that Toscano correctly found the violation to
be S&S.
USX does not contest Toscano's other findings regarding the
violation and I find therefore that the violation was serious and
was due to negligence on USX's part. The plant has a large
history of previous violations, including 13 assessed violations
of section 56.14112(b) in the 24 months prior to March 17, 1992.
Pet. Exh. 9. I will take these factors into consideration when I
assess a civil penalty for this violation.
ASSESSMENT OF CIVIL PENALTIES
DOCKET NO. LAKE 92-457-M

Citation No.
4097355

Date
6/10/92

30 C.F.R. S

56.11001

Civil Penalty
$309.00

The parties have settled this violation for $309, and I have
approved the settlement. I therefore assess a civil penalty of
$309.
DOCKET NO. LAKE 92-279-M

Citation No o
3893134

Date
1/ 14/9 2

30 C.F.R.

§

56 . 14214(b)

civil Penalty
$500 . 00

Given the f act that USX is large in size , that the violation
was serious and that the failure to should the horn at the
crossing was not an isolated incident, as well as considering the
other statutory civil penalty criteria, I assess a civil penalty
o f $500 .
DOCKET NO. LAKE 93-306-M

Citation No a
4097196

Date
3/17/92

30 C.F.R. S

56.14112(b)

civil Penalty
$500.00

Given the fact that USX is large in size, that the violation
was serious and that in the 24 months prior to March 17, 1992,
thirteen previous assessed violations of section 56.14112(b) have
been cited and assessed at the plant, as well as considering the
other statutory civil penalty criteria, I assess a civil penalty
of $500.

2348

Citation No.
4097197

Date
3/17/92

30 C.F.R.
56.12034

§

civil Penalty
$50.00

The parties have settled this violation for $50 and I have
approved the settlement. I therefore assess a civil penalty of
$50.
ORDER

USX is ORDERED to pay civil penalties in the assessed
amounts as set forth above. In addition, in Docket·No.
LAKE 93-306-M, the Secretary is ORDERED to modify Citation
No. 4097197 by deleting the S&S finding.
In Docket No.
LAKE 93-5-M, Citations Nos. 4097174 and 4097478 are VACATED.
USX is DIRECTED to pay the civil penalties of MSHA within
thirty (30) days of the date of this decision. The Secretary is
DIRECTED to modify citation No. 4097197 within thirty (30) days
of the date of this decision. .Upon receipt of payment and upon
modification of the citation, these proceedings are DISMISSED.

JJw;d£~
David F . Barbour
Administrative Law Judge

Distribution :
Mique l J. Carmona , Esq. , Office of the Solicitor ,
U.S. Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago , IL 60604 (Certified Mail)
J ames Ranta Q United Steelworkers of America , Local 1938 , 30 7
F irst Street , North , Virgin ia , MN 55792 ( Certified Mail )
William M. Tennant , USS , a Division of USX Corporation , 600 Grant
Street , Room 1580 , Pittsburgh, PA 15219-4776 (Certified Mail}
\ epy

23 49

PBDBRAL XIllB SAPBTY PD HEALTH RBVZBW COJDUSSXOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5 2 0 3 LEESBURG PIKE
FALLS CHURCH, VI RGINIA 22041

NOV 1 7 1993
BUCK MOUNTAIN COAL COMPANY ,
Contestant

TEMPORARY RELIEF

v.

:

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

Docket No. PENN 93- 44 2 -R
Citation No. 4069590; 7/16/93
Buck Mt. S l ope

.
DECISION

Appearances:

Mr. Richard D. Kocher , Sr . , Pine Grove, PA for
Contestant;
H. P. Baker, Esq., Office of the Solicit or,
U.S . Department of Labor, Philadelphia, PA ,
for Respondent.

Before :

Judge Fauver

This is an application for t emporary relief from t he
Secretary's Withdrawal Order No . 40695 9 0, under § 105(b) of
the Federal Mine Safety and Health Act of 1977, 30 u.s . c.
§ 801 e t seq.
Having considered the hearing evidence and the record as a
whole , I find tha t a ·pr e p onderance of t he substanti al , reliable ,
and p rob ative evidence est a b lishes t he f o llowing Findings of Fa c t
a nd Further Find ings in t h e Discuss i on b elow :
FINDINGS OF FACT
1.
On J u ly 16 , 1 99 3 , Federal Mi ne I nspector Wallace Tay lor
a nd Supervi s o r y I nspector Thomas Garc ia i nspected Contestant vs
Buck Mountain S lope Mine .
2.
Contestant ' s roof- control pla'li states that breast
crosscuts "will b e supported with one row of single props .
placed on 5 f oot centers l engthwise ." Ex. G- 1 , p. 5 . The term
00
b reast crosscut" is synonymou s with the term "miner headin g."

2350

3.
Miner headings are crosscut connections between the
breasts. Miners position themselves there for safety when
blasting at the face. Also, materials are stored in the miner
headings.
4.
The roof-control plan also contains a diagram of the
mine which depicts the miner headings and defines the 11 0 11 symbols
that appear in the miner headings as "single props, 4-•' minimum
diameter, installed on 5' centers."

s. The inspectors observed that no props were installed in
the No. 2 miner heading. When they informed Richard Kocher,
partner and mine superintendent, of this observation, Kocher told
them that the No. 1 miner heading did not have props either.
Inspector Taylor also observed three miners working at the face.
6.
Inspector Taylor issued § 104(d) (2) Order No. 4069590
for a violation of 30 C.F.R. § 75.220(a) (1) on the ground that
Contestant failed to follow i t .s approved roof-control plan.
7.
Under normal mining operations, blasting can loosen the
immediate mine roof, and may cause a roof fall. Inspector Taylor
observed areas where the immediate mine roof had fallen.
8.
The need for supporting the roof in this mine is
substantial because the 30 foot breasts place extra stress on the
pillars, the natural roof support.
9.
Props installed on 5 foot centers in the miner headings
could prevent roof falls. They also help predict changes in roof
conditions before the ribs show signs of changing roof
c onditi ons .
10 . Prior t o July 16 , 19 93 , MSHA i ssued § 104(d) (1 )
Ci t ation No . 3082768 f or a v iolation of 30 C. F . R. § 75.220(a) (1 )
on the ground that Contestant failed to follow its approved roofcontrol plan , by failing to install props in the miner headings.
11. To t e rmi nate Ci t at i on No . 3082768 , Contestant insta lled
p rops in the mi ner head ings , and held a safety meeting with the
miners . At t he meeting , Kocher discussed the roof-control plan
i ncluding the specific requirement of placing props in the miner
headings .
DISCUSSION, FURTHER
FINDINGS AND CONCLUSIONS

In an application for temporary relief, the Contestant has
the burden of proving that (1) there is a substantial like~ihood

2 35 1

that the findings of the Commission on the merits of a contest of
the Secretary's order or citation will be favorable, and (2) such
relief will not adversely affect the health and safety of miners.
30 u.s.c. § 815(b)(2); and 29 C.F.R. § 2700.46(a).
Contestant contends that when miner headings are driven less
than 6 feet wide they do not require props for roof support
because the ribs give adequate roof support. It also contends
that the installation of props in such miner headings creates a
safety hazard in that the props would restrict the miners' rapid
escape when the miner heading is used as an escapeway.
The evidence is sharply divided on the safety issues.
Mr. Kocher testified in support of Contestant's contentions. Inspector Tayl or and an MSHA roof control expert,
George Klinger, disputed his opinions and testified that the
props are necessary for safety and, if removed, present a
reasonable likelihood of a fatal roof fall. I cannot infer, from
this conflicted testimony, that there is a substantial likelihood
that the finding of the Commission on the merits of the order
will be favorable to Contes~ant, or that granting the requested
temporary relief from the order will not adversely affect the
safety of the miners.
Accordingly, I must deny the application for temporary
relief. This will be without prejudice to Contestant's rights
(1) to petition MSHA for a modification of its roof-control plan
or of the application of roof control standards to its mine
widths, and (2) to contest before the Commission citations or
orders on the ground that MSHA's refusal to approve Contestant's
proposed modification of Contestant's roof-control plan is
arbitrary and without merit.
CONCLUSIONS OF LAW

lo

The j udge has j uri sdiction o

2.
Contestant has not carried its burden of proving a case
f or t emporary relief under Section 105(b) of the Act .
ORDER
The application for temporary relief is DENIED, and this
p roceeding i s DISMISSED .

a}~1~J~v~

Administrative Law Judge

2352

Distribution:
Mr. Richard D. Kocher, Sr., Partner, Buck Mountain Coal Company,
RD #4, Box 393A, Pine Grove, PA 17963 (Certified Mail)
H. P. Baker, Esq., Office of the Solicitor, U.S. Department of
Labor, 14480 Gateway Building, 3535 Market Street, Philadelphia,
PA 19104 (Certified Mail)
/efw

2353

DDBUL llI11'B SAFB'l'Y UD llBALTB ltBVJ:BW COJOUSSJ:Oll
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 181993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 92-334-M
A. C. No. 23-01924-05520

v.

Fort Scott Fe~tilizer
Cullor, Inc.·

FORT SCOTT FERTILIZER-CULLOR
INC. I
Respondent
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION {MSHA),
Petitioner

v.

JAMES CULLOR, Employed by
FORT SCOTT FERTILIZERCULLOR , INC . I .
Respondent

CIVIL PENALTY PROCEEDING

..

Docket No. CENT 93-117-M
A. C. No. 23-01924-05523 A
Fort Scott FertilizerCullor, Inc.

0
0

DECISION

Appearances:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Gary W. Cullor , President , Fort Scott FertilizerCul l or , I nc ., a nd James Cul l or 0 p rose , f or
Respondents

Before :

J udge Feldman

These consolidated cases are before me as a result of
petitions for civil penal ties fi led by the Secretary o f Labor
p ursua nt to s ections l l O(a) a nd (c) o f the Federal Mine Safety
a nd Heal t h Act o f 1977 (the Act ) , 30 u.s.c. § 820(a) and (c) .
The petiti ons charge the corporate respondent , Fort Scott
Fertilizer-Cullor , I nc. (Fort Scott ) , with violations of four
mandatory safety standards and James Cullor , as an agent of the
c orporate respondent , with knowingly authorizing, ordering, or
c arrying out two of these alleged violations. 1

1

Section llO(c) of the Act provides, in pertinent part,
that agents of corporate operators who knowingly authorize, order
or carry out violations of mandatory safety standards are subject
to the same civil penalties that may be imposed on the corporate
operator.

235 4

These matters were heard on September 21, 1993, in Fort
Scott, Kansas at which time the parties stipulated that the
respondents were subject to the provisions of the Mine Act. The
Secretary called former Fort Scott employees Raymond Jenkins, a
truck mechanic, and truck drivers William Burris and Timothy
Ragland. Michael Marler, the issuing inspector, also testified
on behalf of the Secretary. Gary Cullor and his uncle, James
CUllor, testified for the respondents. The parties filed
posthearing briefs.
STATEMENT OF THE CASE

These matters concern the following citation and orders
issued to Fort Scott by Inspector Marler as a result of his
May 27, 1992, inspection: 104(d) (1) Citation No. 4110164 for
inoperable brakes on a 30 ton Euclid truck (big Euclid);
104(d) (1) Order No. 4110166 for a disconnected left front brake
on a red Kline haulage truck; 104(d) (1) Order No. 4110167 for
inoperable brakes on a 15 ton ·Euclid truck (small Euclid); and
104(d) (1) Order No. 4110171 for a broken leaf spring on a little
Kline haulage truck.
James Cullor was cited for knowingly authorizing or carrying
out the violations in Citation No. 4110164 and Order No. 4110167
by purportedly ignoring repeated complaints about malfunctioning
brakes on the big and small Euclids by truck drivers Burris and
Ragland. Marler determined that brakes on the big Euclid driven
by Burris and the small Euclid driven by Ragland could not hold
the trucks on level ground.
The respondents have stipulated to the fact of the defective
b rake c onditions on the three trucks in issue and to the fact
~hat t here was a reasonable l ikelihood that the hazards
c ontributed to by t hese conditions could result in injuries of a
~e asonably serious nature.
(Tr. 12-18, 195, 212). However, the
respondents attribute the faulty brake systems to improper slackadjuster settings on three of the four wheels on each of the
t hree cited trucks o The respondents maintain that these
a djustments were t ampered with by Burris and Ragland who then
r eported the defective brake conditions to the Mine Safety and
Health Administration (MSHA ) on May 22 , 1992, shortly before
Marler vs May 27 g 1992 , inspection . Burris and Ragland were
~erminated on June 1, 1992, because they did not have steel-toed
boots o (Tr . 164) . Both subsequently filed discrimination
c omplaints pursuant to section lOS(c) of the Mine Act. On
July 14, 1992, MSHA advised Fort Scott that it had determined
t~at Burris and Ragland had not been discriminated against. 2
2 The record was left open for Gary Culler to submit copies
of MSHA's discrimination determinations. Pursuant to my request,
Culler submitted this information on September 27, 1993. These

235 5

As noted herein, the testimony in this proceeding supports
the respondents' contention that the brakes were tampered with .
Moreover, the Secretary's decision not to pursue related
discrimination complaints on behalf of Burris and Ragland further
support the respondents' position that the subject b~ake
complaints were lacking in merit. The remaining issue is whether
employee misconduct for the sole purpose of imposing withdrawal
and civil penalty sanctions on an operator is an affirmative
defense given the strict liability nature of the Mine Act.
PRELIMINARY FINDINGS OP PACT
Gary Cullor is President of Fort Scott Fertilizer-Cullor,
Inc . (Fort Scott), a close corporation. CUllor's wife, Sally
Cullor, is Secretary and Treasurer of the corporation and is a
100 per cent shareholder . The violations are alleged to have
occurred on March 27, 1992, at Fort Scott's limestone quarry in
El Dorado Springs, Missouri . . Fort Scott sold this facility to
Ash Grove Cement Company in May 1993 .
William Burris and Timothy Ragland were employed by Fort
Scott as quarry truck drivers at its El Dorado Springs limestone
facility. Burris was hired on September 16, 1991. Ragland was
h ired on March 26, 1992. Both Burris and Ragland are qualified
interstate truck drivers. Each holds a certified commercial
driver's license (COL) in the State of Missouri. As COL
licensees, they are required to be familiar with the operation
and maintenance of trucks, including truck braking systems.
(Tr . 90-92, 152-153) .
Burris and Ragland became upset over the subsequent hiring
o f J erry Carpenter who , i n addition to other duties , was a
we l der . Carpenter 0 s salary was higher than the wages of Burris
a nd Ragland .
(Tr . 166 ) . Burris "thought it was wrong" and that
h e "deserved more [money)" (Tr. 118). Ragland also did not
"think [Carpenter's higher salary] was right." (Tr. 166).
Burris and Ragland knew that Fort Scott had to timely complete
i ts performance on a state j ob that it had bid for .
(Tr . 117 ,
166 ). Threats were made concerning some type of action if they
d id not receive a raise .
(Tr . 168 ) . Specifically , Ragland
t estified :
Q.

You know Jerry Carpenter? Do you remember Jerry
Carpenter that was hired at the quarry?

A.

I think so.

fn. 2 (Continued}
documents have been identified and admitted into evidence as
Respondents' Ex . 1 . (Tr. 129, 141).

2356

Q.

Do you remember an incident where he was hired and
apparently somebody found out about what the pay rates
was (sic) he got and several of you were upset about
what he was getting paid?

A.

I don't see what that's got to do with this?

Q.

Do you remember that?

A.

Yes, I do.

Q.

Do you remember you and Bill and a couple of others
wanting more money because he was getting paid more?

A.

Well, we really didn't go to that extreme on it, no,
but, yeah, I didn't think it was right, because he
came to work there after we did.

Q.

But you did ask for more money?

A.

Yeah, we did.

Q.

Do you remember at the same time referring that
things could get awful slow around there as far as
getting anything done or on our state project and
equipment could break down?

A.

I never said nothing like that, no.

Q.

You don't remember anybody else saying anything like
that?

Ao

!

Qo

Do you remember anybody saying that?

Ao

I can't tell you that .

c an 9 t speak f or other people .

I don't know .

THE COURT : Mr . Ragland , that ' s not the question
he asked you . He asked you did you ever hear anybody
say that?
THE WITNESS : Oh , they was always shooting crap
about something, you know. It was just kind of like
doing carpenter work, you know, it's just one of
them deals where everybody goes hem-hawing around,
talking about what they'd do, but, no, I can't say
that I just heard a bunch of people going on about
it, no.
THE COURT: Would you please restate the question?
don't know if I got an answer.

2 357

I

Q.

(By Mr. Gary CUllor) Did you hear any comments from
anybody, without naming names, referring to the fact
that if we didn't receive more wages, there could be
a work slowdown or that equipment could break down?

A.

Not --

Q.

Equipment could break down a lot?

A.

Not in them words, no.

Q.

But something si~ilar to that?

A.

It was more like there just wasn't nobody going to
come back out there is what it was more than anything.
I don't remember them saying anything about that, no .
They were talking more kind of like strike features than
they were demolishing anything.

Q~

There would be some implications that there would be
some type of action taken if they didn't get a raise?

A.

I guess you could probably put it that way.
{Tr. 166-168 ).

Burris and Ragland requested a pay raise . (Tr. 118, 166).
They received a small pay raise on May 18, 1992.
On Friday, May 22, 1992, Ragland telephoned the MSHA office
and spoke to Inspector Marler's supervisor . At that time,
Ragland r equested an MSHA i nspection because the quarry trucks
~eporte dl y ha d no brakes .
(Tr . 96 , 165 , 259 , 278-27 9 ). Burris
kn ew an i nspector would s oon i nspect t he El Dorado Springs
f a c ility .
(Tr. 96 ). However , Burris testified that he d i d not
e xperienc e brake problems on the days immediate ly preceeding
Marler's May 27 , 1992, inspection. (Tr. 106) .
Burris a nd Ragl and started haul ing mud and water out of t he
quarry p i t a t approximatel y 8 : 00 a . m. on Wednesday , May 27 , 1992 .
Burri s was driving the big Euclid , Ragland was operating the
s mall Euc l id and Derek Edmiston was driving the red Kline haulage
t ruck.
(Tr . 88 ). Burris , Ragland and Edmiston made severa l
t rips i nto the p i t to haul mud between 8:00 a.m. and 9:00 a. m.
Dur i ng this period , the red Kline and the small Euclid became
stuck in the mud. (Tr . 96, 287-288) . Normal quarry operations
were then suspended at approximately 9:00 a.m. because the high
loader was experiencing steering problems. (Tr. 31, 184).
Contemporaneous with the high loader breakdown, Burris and
Ragland complained to James Cullor that their truck brakes were
not working. James Cullor stated that he did not observe any
brake problems prior to Marler's inspection. (Tr. 289-290).
However, CUllor told Burris and Ragland to park their trucks by

2358

the work shed so that the trucks could be checked out.
287).

(Tr.

Marler testified that he arrived at the quarry at
approximately 10:00 a.m., shortly after the trucks were taken out
of service because of the high loader malfunction (Tr. 184,
258). Marler asked to talk to the drivers of the haulage trucks
(Tr. 186). Marler spoke to Burris who told him that the big
Euclid's brakes would not hold going down into the quarry.
Burris stated that he had told Jim Cullor who reportedly told
Burris to keep driving and not to complain so much·about the
equipment. (Tr.186). Marler tested the big Euclid and
determined that the brakes would not hold the truck in gear on
level ground. Therefore, Marler issued 104(d)(l) Citation No.
4110164 citing a violation of the mandatory standard in section
56.14101, 30 C.F.R. § 56.14101 for defective brakes on the big
Euclid.
Marler also spoke to Ragland who complained about the brakes
on the small Euclid.
(Tr. 215). Consistent with Burris'
complaint, Ragland informed Marler that he had reported the brake
problems to James Cullor who did nothing about it. {Tr. 216).
Marler determined that the brakes would not stop the small Euclid
on a 6 per cent grade, even when unloaded. Consequently, Marler
issued 104(d) (1) Order No. 4110167 citing a violation of section
56.14101 for ineffective brakes.
Marler also sought to inspect the red Kline haulage truck.
Marler asked to speak to Burris about the condition of the truck
as he was advised that Burris was the usual operator of this
v ehicle . Burris advised Marler that he had disconnected the
f ront l eft brake after he told James Cullor that the brake was
locking up and causing the truck to pull . (Tr . 235-236) . Based
on the i nformation provided by Burris , Marler issued 104(d) (1)
Order NO. 4110166 citing the mandatory safety standard in section
56.14101{a) (3) for failing to maintain the left front brake in a
f unctional condition .
Fi nally, Marler observed a broken left front leaf spring on
t he little Kline haulage truck . The spring had eight to nine
l eaves , of which four or five were broken. The broken spring
a llowed the front to sag to the point where the tire was almost
t ouching the fender on ·the left side . Consequently, Marler
issued 104(d) (1) Order No. 4110171 citing a violation of the
mandatory safety standard in section 56.14100(c) for the
continued use of defective and hazardous equipment.
PURTBER PINDINGS AND CONCLUSIONS

The Secretary seeks to impose civil penalties on the
corporate respondent as well as James Cullor, as an individual,
based on the ineffective breaking systems on the big and small

2359

Euclid trucks. Although there were several maintenance problems
on these trucks that required attention, items requiring
preventative maintenance, eg., brake shoe replacement, must be
distinguished from the primary cause of the brake system
failure. 3
In the case at bar, Raymond Jenkins testified on behalf of
the Secretary that there were loose slack adjusters on three of
the four wheels on the big and small Euclid trucks and on the red
Kline truck. Slack adjusters are located on the inside of each
wheel. They consist of a bolt that can be tightenQd with an
ordinary wrench. In view of the large diameter of the truck
tires, slack adjusters can be easily tightened from a squatting
position without removing the wheels . (Tr . 50) Properly
adjusted, they are fully tightened and then turned back one-half
turn. (Tr. 51).
If slack adjusters are not properly tightened, they. prevent
the brake shoe from contacting the brake drums.
(Tr. 206). The
slack adjustment procedure was described by Jenkins as being
"real easy" (tr. 49); "a minute" to adjust (tr.50-51); and "there
ain't nothing to it , really." (Tr. 36). Marler testified that
anyone could walk up to [a slack adjuster) with a wrench and
change (it] if they want." (Tr. 221). Jenkins found loose slack
adjusters on the big and small Euclid trucks (tr. 32-36, 37-38,
48-49). Marler testified that the slack adjusters were loose,
but not loose enough to prevent the shoes from contacting the
drums (Tr. 206) . Marler also stated that it was not determined
whether the slack adjusters were out of adjustment. (Tr. 229).
Jenkins , however , opined that the major reason why the
b rakes coul d not hold the Euclid trucks on grade was the loosened
s l ack adj usters o (Tr o 38-3 9 , 48 ) o Jenkins ' opinion is
c onsistent with Marler i s testimony that slack adjusters can be
l oosened to the point where they would render the brakes
ineffective. (Tr. 221-222). Significantly, Jenkins testified
that neither Burris nor Ragland ever complained to him about
b rake problems o (Tr o 70 ) o Therefore 0 I credit the testimony of
~ruck mechanic Jenkins that the primary brake defects on the
Eucl i d trucks driven by Burris and Ragland were the loosened
slack adj usters o

3

For example, an inspection of the small Euclid with the
wheels removed revealed a sticking left s-cam shaft and a broken
ear on a right front cam support. Similar inspection of the big
Euclid revealed a right rear leaking axle seal and a brake shoe
lining pulled from the left rear brake shoe . (P Ex.2; Joint Ex.
2). However, I credit the testimony of Jenkins that these
conditions were not the primary cause of the inoperable brakes on
the Euclid trucks. (Tr. 38-39, 225-226).

236 0

Having concluded that the slack adjusters were the primary
cause of the Euclid brake malfunctions, I now address the
respondents' allegations of tampering. Although Burris initially
denied familiarity with slack adjusters, both Burris and Ragland
conceded that they knew how to make such adjustments.
(Tr. 87, 92, 152-154, 168, 200). Jenkins and Marler testified
that it is not uncommon for truck drivers to adjust Slack
adjusters.
(Tr. 26-27, 36-37, 221). Although Marler did not
observe any recent wrench marks on the slack adjuster bolts, he
conceded that mud would cover any recent evidence of tampering.
(Tr. 262-263). Significantly, Marler stated that slack adjusters
are one of the first things checked by qualified, experienced
truck drivers in the event of brake problems. (Tr. 199-200, 228229). Yet, Burris and Ragland continued to operate trucks
without brakes without checking these adjusters. Marler
testified that a competent driver could conceal an inoperable
brake condition by operating a truck with defective brakes in the
quarry by downshifting. (Tr. 256, 264).
Thus, the evidence reflects that Burris and Ragland were
disgruntled employees; threats had been made about disrupting
quarry operations; Ragland complained to MSHA; Burris and Ragland
were anticipating Marler's inspection; there was a pattern of
l oosened slack adjusters on three of four wheels on three quarry
trucks that is indicative of tampering; Burris and Ragland had
access to these slack adjusters; although slack adjusters loosen
over time, there is no evidence of inoperable breaks on the days
preceding Marler's May 27, 1992 inspection; and Burris and
Ragland operated their trucks without brakes without checking the
condition of the slack adjusters. Under these circumstances, I
c onclude that there i s sufficient circumstantial evidence that
s upports t he r espondents 0 c ontention that brake tampering
oc c urred o
Moreover, the Secretary's decision not to pursue the
discrimination complaints of Burris and Ragland because the
Secretary ' s investigation revealed that they "were not
d i scr imi nated against" f urther supports the conclusion that the
b rake complai nts i n this matter were not legitimate. Under these
c i rcumstances , even counsel for the Secretary conceded that
t he secretary ' s case is apparently inconsistent with his own
i nvestigation o (Tr o 130-131) 0 The record was left open for
submission of the pertinent discrimination investigation
f indings. (Tr . 129 , 141) . However, the Secretary has declined
t o submit this information. Consequently, the refusal of the
Secretary to submit this relevant investigatory report creates
the inference that this report would be adverse to the

2361

Secretary's case. 4 See NLRB v. Doro's Transportation Co., 405
F . 2d 706, 713 (2d Cir. 1969). While the adverse inference to be
drawn is not dispositive, it is consistent with other evidence of
record and it is of significant evidentiary value. 5
Having concluded that the brakes were tampered with, I turn
t o the novel question of whether such employee misconduct is an
a f f irmative defense to the pertinent citations in issue. While
empl oyee misconduct is relevant as a mitigating factor i n
r educing a c ivil penalty , it is ordinarily not a defense to a
c itation g iven the strict liability imposed under tpe Mine Act .
Southern Ohio Coal Company , 4 FMSHRC 1459 (August 1982) . It i s
f undamental that strict l.J,.abi lity is i mposed on operators to
e ncourage mine safety even if the hazard contributed to by the
violation resulted from the employee 0 s misconduct .
Thus , the Commission has consistently rejected arguments by
operators that t hey are notiiable for the unauthorized or
c areless actions of miners . See A. H. Smith Stone Company, 5
FMSHRC 13 (January 1983); Southern Ohio Coal Company, 4 FMSHRC at
1462-64; Sewell Coal Co. v. FMSHRC, 686 F.20 1066, 1071 (4th Cir.
1982); Allied Products Co. v. FMSHRC, 666 F.2d 890, 893-94 (5th
Cir . 1982) . These cases recognize and are consistent with the
ultimate goal of the Mine Act which is to encourage safety and
avoid risk. In this case, however, employees attempted to use
the Mine Act to create risk by disabling brakes. Such acts of
sabotage can not be equated with the unauthorized or careless
acts in the above cited cases. Acts of sabotage subvert the
purpose of the Mine Act and must not be given effect.

4 Obviously ,

it i s not appropriate to draw an adverse
i nference against a miner prosecuting a dicrimination complaint
on his own behalf under section 105(c) (3) of the Mine Act when
the Secretary , an entirely different party, elects not to bring a
d iscrimination action under section 105(c) (2) of the Act. In
t his case , however , the Secretary is the party prosecuting this
c ivil penalty proceeding . The Secretary 9 s failure to bring
d iscrimination actions on behalf of Burris and Ragland after they
were terminated only days after filing the pertinent brake
complaints with MSHA, in the absence of any explanation by the
Secretary , permits the inference that the Secretary's
i nvestigation failed to support the validity of these brake
complaints.
5

I am sensitive to the Secretary's desire to protect
confidentiality. However, it is no secret in this case that
complaints were filed with MSHA. The Secretary has made no
effort to explain its investigation results and subsequent
decision not to pursue discrimination cases. Such an explanation
could be provided without violating confidential sources, if any.

2 36 2

In reaching this conclusion, I am aware that the Secretary
argues that , if tampering occurred, a de minimus civil penalty
must be imposed for a technical violation of safety standards.
I decline to elevate form over substance which, in this case,
would contravene legislative intent . Rather, I conclude that
t ampering has occurred and that such tampering is a defense to
Citation No. 4110164 (the big Euclid) and Order No. 4110167 (the
s mall Euclid) . Consequently, Citation No. 4110164 and Order No .
~ 110167 , issued to Fort Scott and James Cullar, as agent, shall
b e vacated. Therefore , Docket No . CENT 93-117-M concerning James
cullor vs personal liability under section llO(c) o~ the Mine Act
must be dismissed.
With respect to Order No . 41 10166 issued for the
d isconnected left front brake on the red Kline truck, I note that
Burris has admitted disconnecting the brake. James Cullor denies
any knowledge of Burris ' action ~ Given my findings in this
p roceeding, I credit the testimony of James Culler on this issue.
Jenkins testified that a truck with a disconnected brake could
not "stop as good." (Tr. 39-40) The evidence reflects that this
brake was disconnected for a considerable period of time and
t hat this action was not taken for the sole purpose of reporting
i t to Marler . Therefore, there is no defense to this citation.
Fort Scott has stipulated to the significant and substantial
nature of poor brakes on a quarry truck. However, I am unable to
find any unwarrantable failure as I have found no knowledge of
this condition on the part of the respondent. Therefore, I am
modifying Order No. 4110166 to a significant and substantial
l04(a) citation and I am removing the unwarrantable failure
c harge . Given the circumstances of this case and considering the
c riteria in section l lO(i ) of the Mine Act , I am assessing a
civil p enalty of $ 150 . 00 .
Finally , Order No. 4110171 was issued for a broken left
front leaf spring on the little Kline truck. Marler's testimony
t hat the tire was almost touching the left front is consistent
~ ith the photograph of t he little Kline truck placed in evidence .
( P. Ex . 10). ! reject Gary Culler's assertion the spring's
p rimary purpose is for driver comfort. Rather , I accept Marler's
a nalysis that this condition posed a serious risk in that the
d river could l ose control of the truck and sustain serious
i njury . Therefore , I conclude that this violation was properly
characterized as significant and substantial as there is a
r easonable likelihood the hazard contributed to, i.e., loss of
control, will result in an injury of a reasonably serious nature
given continued use of the truck in frequently muddy conditions.
Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984). With respect
to the issue of unwarrantable failure, I note that the photograph
illustrates that the defective spring was obvious in that the
truck was listing to the left side. Fort Scott's continued use
of this vehicle in its readily apparent defective state
constitutes an unwarrantable failure. Given the serious gravity

2363

of this violation, I am modifying this Order to a 104(d)(l)
citation and assessing a civil penalty of $400.00.
ORDER
l.

Accordingly, Citation No. 4110164 and Order No. 4110167

ARB VACATED.

2. Order No. 4110166 is modified to a significant and
substantial 104(a) citation thus removing the unwarrantable
failure charge and IS AFFIRMED as modified.
3. Order No. 4110171 is modified to a 104(d) (1) citation
and IS AFFIRMED as modified.
4. The case against James CUllor, as an agent of Fort Scott
Fertilizer-Cullor, Inc., in Docket No. CENT 93-117-M IS
DISMISSED.
5. Fort Scott Fertilizer-CUllor, Inc., IS ORDERED to pay a
total civil penalty of $550.00 within 30 days of the date of this
decision, and, upon receipt of payment, Docket No. CENT 92-334-M
IS DISMISSED.

Jerold Feldman
Administrative Law Judge

Di stri buti on :
~argaret

Ao Miller q Esq . q Office o f the Solicitor,
Uo S. Department of Labor , 1961 Stout Street , Room 1585, Denver,

co 80294 (Certified Mail)

Ga ry Wo CUllor , President , Fort Scott Fertilizer-Cullor 0 I nc . ,
20t h & Sydney , Fort Scott , KS 66701 (Certified Mail )
Mr . J ames CUllor , Fort Scott Fertilizer-culler, Inc. ,
20th & Sidney , Fort Scott , KS 66701 (Certified Mail )

/11

2364

PBDBRAL lllllB SAFETY DD BBALTH RBVJ:BW COKIUSS:IOll
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

November 18, 1993
SECRETARY OF LABOR,
MSHA, on behalf of
DANNY SHEPHERD,
Petitioner
v.
SOVEREIGN MINING COMPANY,
Respondent

TEMPORARY REINSTATEMENT
PROCEEDING
Docket No. KENT 94-69-D
:

BARB CD 93-25
BARB CD 93-27
Mine No. 1

ORDER OF TEMPORARY REINSTATEMENT

Before:

Judge Feldman

On October 28 , 1993, the Secretary filed an Application for
Temporary Reinstatement on behalf of Danny Shepherd. The
application was supported by an affidavit of Lawrence M. Beeman,
Chief , Office of Technical Compliance and Investigation for Coal
Mine Safety and Health, Mine Safety and Health Administration.
Beeman's affidavit identified several protected activities,
including Shepherd's duties as a miners' representative for
s afety matters at the respondent's No . 1 Mine.
The Secretary 9 s Application f or Temporary Reinstatement was
s erved upon Leroy B. Lackey , Jr., President , Sovereign Mining
Company , on October 28 , 199 3 . Commission Rule 45(c), 29 C.F . R.
§ 27 00 . 45(c) , in part provides: "Within ten days following
receipt of the Secretary's Application for Temporary
Reinstatement , the person against whom relief is sought shall
a dvise t he Commission i s Chief Administrative Law Judge or his
designee , and simultaneously notify the Secretary , whether a
hearing on the application is requested. If no hearing is
requested , the Judge assigned to the matter shall review
i mmediately the Secretary's application and , if based on the
c ontents thereof the Judge determines that the miner's complaint
was not frivolously brought , he shall issue immediately a written
order of temporary reinstatement . "
The Secretary filed a Motion for Order of Temporary
Reinstatement on November 10, 1993, noting that the respondent
had failed to request a hearing in this matter. To date, the
respondent has not requested a hearing or opposed the Secretary's
Motion. Therefore, Commission Rule 45(c) requires me to review
the Secretary's application to determine if Shepherd's complaint
is not frivolously brought.

236 5

The "not frivolously brought" standard set forth in Section
105(c), 30 u.s.c. § 815(c), is satisfied when there is a
reasonable cause to believe that the underlying discrimination
complaint is meritorious. J. Walter Resources v. Federal Mine
Safety and Health Review Commission, 920 F.2d 738, 747 (11th Cir .
1990}. Thus, the Secretary must prevail on an application for
temporary reinstatement if the facts supporting the application
are not insubstantial or frivolous.
Id. at 747. Beeman's
affidavit submitted in support of the Secretary's application
specifies alleged protected activities that are contemporaneous
with Shepherd's employment suspension which occurred on or about
August 5, 1993. Consequently, I conclude that Shepherd's
complaint is not clearly ~ithout merit or pretextual in nature.
Therefore, I find that Shepherd's complaint has not been
frivolously broug~t.
Accordingly, the Sovereign Mining Company IS ORDERED to
immediately reinstate Danny Shepherd to the position from which
he was suspended on or about .. August 5, 1993, or to an equivalent
position, at the same rate of pay and with the equivalent
benefits. Shepherd's entitlement to backpay and benefits shall
be calculated from the date of this order.

Jerold Feldman
Administrative Law Judge
(703) 756-5233
D istributi on~

Carl Co Carneski , Esqo, Office of the Solicitor, U.So Department
of Labor, 4015 Wilson Blvd. , Arlington, VA 22203 (Certified Mail)
Tony Oppegard , Esq., Mine Safety Project , 630 Maxwelton Court ,
Lexington 9 KY 4 0508 (Ce rtified Mail )
Leroy Bo Lackey , Jro, P resident, Sovereign Mining Company, P.O .
Bo x 4 50 0 Dwarf 9 KY 41739 (Certified Mail)

/ 11

2366

:FEDERAL JUBB SUETY MID HEALTH RBV:IEW COIOUSSI:OB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 1 81993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of JAMES JOHNSON,
Complainant
and

DISCRIMINATION PROCEEDING
:

Docket No. SE 93-127-D
Mine ID 01-01401
No. 7 Mine

UNITED MINE WORKERS OF
AMERICA (UMWA) I
Intervenor

v.
JIM WALTER RESOURCES,
INCORPORATED,
Respo ndent
DECISION
Appearances :

William Lawson, Esq ., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama,
for Complainant;
David M. Smith, Esq., Mark Strength, Esq., and
R. Stanley Morrow, Esq., Birmingham, Alabama,
for the Respondent.

Be f ore :

Judge Fauver

The Secretary brough t this case on b ehalf of James Johnson ,
alleging discrimination in violation of § 105(c) of the Federal
Mine Safety and Health Act of 1977 , 30 u.s.c. § 801 et seq .
Having considered the hearing evidence and the record as a
whole u I fi nd that a p reponde rance of the substantial , reliable ,
and probative evidence establishes the following Findings of Fact
and Further Findings in the Discussion below :
FINDINGS OF FACT
1.
Jim Walter Resources operates an underground coal mine,
known as Mine No . 7, which produces coal for sale or use in or
substantially .affecting interstate commerce.
2.
During the night shift of March 13, 1992, the No. 1
longwall crew was assigned to remove an unproductive shearer from
the longwall face through a crosscut (Ex. G-4, "Crosscut A") and

2367

down the No. 3 entry. James Johnson, Complainant, a member of
the crew, had been employed by Jim Walter Resources for 11 years
as a general inside laborer, roof bolt construction worker, a
shearer operator, and a longwall helper {6 years on the
longwall).
3. Johnson heard UMWA Safety Commi·tteeman Tommy Boyd, who
was also the stageloader operator on the section, tell Danny
Watts, the longwall face foreman on the previous shift , and Alvin
McMeans, the owl shift longwall face foreman, that there was a
problem with the shearer removal because there was no approved
plan to correct the roof conditions before traveling through
Crosscut A. Johnson looked up and saw that roof conditions in
and near Crosscut A area were bad so he stepped under the No. 1
shield . Johnson observed that some roof had fallen on the
stageloader in the adjacent No. 4 entry, some roof bolts were
out, there was a brow and a crack in the No. 3 entry, and there
were no cribs or timbers in Crosscut A.
Foreman Watts told Boyd
that if he had a problem, he needed to call Larry Vines, the
longwall manager . Boyd replied that if he had to call someone,
it would be MSHA.
4.
Johnson had previously participated in the removal of
the entire longwall unit, but never in the removal of a shearer
b y itself . Usually, when an entire longwall was removed, the
longwa l l face advanced to " Cros s c ut B" in line with the track
area {where the longwall equipment can be moved into the track
a r e a without a 90 degree turn). The longwall equipment was then
removed in accordance with the MSHA-approved roof control plan,
which required additional roof support in Crosscut B {timbers
were usually set out to the track, cribs set in the No. 3 entry
on both sides of the crosscut, timbers set in Crosscut B,
a d d itional r oof bolts installed in Crosscut B, and the entire
f ace mesh ed al l t he way to t h e t a i lgate ). As the l ongwall
advanced to Crosscut Bu cribs we re u sually i nsta lled in Crosscut
l~. to s u p p ort t.he r oof.
5.
On the previous day , March 12, Johnson had observed
two cribs supporting the roof in Crosscut A. However , on
March 13 e t h e cri bs h a d b een removed to enable removal of the
shearer t and n o addit ional r oof support h a d been i nstalled in
Crosscut A. On March 12, J ohnson had traveled up the No . 4 entry
because t he No . 3 entry was dangered off . on March 1 3 , the No . 4
ent ry was d angered o f f.
6.
J ohnson knew that MSHA considered Crosscut A to be gob
b ecause the face had advanced outby the inby pillar. Consistent
with this, he had seen roof falls in such crosscuts after they
reached the gob stage. He also knew that MSHA had "written up"
management personnel for traveling through a crosscut, like
C-Ebsscut A, after the longwall face had advanced outby the
crosscut, because MSHA considered it to be gob exposing them to
the hazards of a roof that might fall at any time. Johnson

23 68

routinely installed roof supports according to the roof-control
plan, but he was not a roof-control expert and did not know how
to make Crosscut A "safe" without a plan prepared by a roof
expert. He considered the area to be gob and dangerous, and
believed that MSHA should be called to review a plan to make the
crosscut safe.
7.
After Safety Committeeman Boyd raised the issue of a
lack of a supplemental roof-control plan, Foreman Watts called
Vines who then called Paul Phillips, a · general mine foreman
responsible for the entire operation of the mine on the owl
shift. Meanwhile, the longwall crew was moved from Crosscut A t o
No. 4 entry to shovel on the belt line. Miners did not remain i n
Crosscut A to remove the shearer.
8.
Phillips called Foreman McMeans, Johnson's immediate
supervisor, who said that the crew questioned the safety of
traveling through Crosscut A to remove the shearer. Phillips
told McMeans to take each crew member aside and tell him to make
the area safe, and if he refused, get input on what he thought
should be done to make it safe. If crew members withdrew under
the ir contract safety rights, 1 McMeans was to contact Phillips
and he would enter the mine.
9.
McMeans isolated the miners and questioned them
individually . McMeans called Johnson to Crosscut B and asked him
what he thought was wrong with Crosscut A. J ohnson told McMeans
that Crosscut A was in the gob, the cribs had been taken down a nd

The labor agreement provides in part (Ex. R.-1,
Sec . i) :
1

( 1 ) If t he employee reasonably believes a condition is
a b normally or i mmedi ately d angerous u he shall notify his
s upervisor of the s pecif i c c ondition , and if management agrees
~hat the c ondition is d angerous , i mmediate correction or
p r evention of exposure to the cond ition shall occur , using al l
necessary employees, including the involved employee .
( 2 ) If mana gement d isagrees that the c ondition is
d a ngerous , t he empl oyee shall have the right to be relieved from
~he a ssignment i n d ispute , and management shall assign and the
e mployee shall accept other available work . A member of the
health and safety committee shall review the disputed conditi on
with management , and i f they agree that the condition is not
d angerous , the employee shall immediately return .
( 3 ) If the health and safety committee member and
management disagree that the condition is dangerous, and the
dispute involves an issue of federal or state mine safety laws or
mandatory health or safety regulations, the appropria~e federal
or state inspection agency shall settle the dispute the basis of
the findings of the inspector.

23 69

roof bolts were missing, and he knew that MSHA had cited people
for traveling through such crosscuts because they were in the
gob. (Johnson knew from Carroll Johnson, Chairman of the Safety
Committee, that sanders had been written up). Johnson knew that
MSHA considered Crosscut A to be gob. He had seen such crosscuts
dangered off in the past and had seen the roof cave in in such
crosscuts after they became gob . McMeans told Johnson, "If I
asked you to work in the area, what would you say?"
Johnson
replied, "I would be afraid to work in that area." Tr. 67.
Johnson said that he would have to withdraw under his individual
safety rights. McMeans did not give Johnson a direct order to
work in crosscut A.
10 . Mc Means isolated the other members of the longwall
crew and questioned them individually about the safety of
Crosscut A and asked each miner what he would say if McMeans
asked him to work in the area. Safety Committeeman Tommy Boyd
told the foreman that MSHA would hav e to approve Crosscut A
before he would work in it. Other miners told Mc Means that
Crosscut A wa s in the gob, two men had been written up by MSHA
for traveling through this type crosscut (referring to a May 20,
1991, citation2 ) , there was nq roof support of any kind in
crosscut A, cribs were needed, and roof bolts were out. One crew
member said that he would make Crosscut A safe and then go to
work. Anoth er said that he would have to withdraw under his
individual s a fety rights. Another said that Crosscut A would
h ave to be approved by MSHA before he would work in it.
11 . Phi ll i ps entered the mine, looked at Crosscut A, and
then talked to McMeans.
Phillips saw the roof-fall on the
stageload er, the crack in the roof , and the brow in the No. 3
entry. He observed there were no cribs to support Crosscut A.
Phillips believed additional roof support was needed in
Crosscut A. He discussed with McMeans what could be done to
i mprove t he r oof support q e. g . 8 b uilding cribs , setting timbers ,
a nd ha nging curtains .
12. Then Ph illips met with Safety Committeema n Boyd in
No . 3 entry a t Crosscut B. Phi llips said, "Let's g o up there and
l ook at the area that y'all feel is unsafe." Tr. 148. Boyd said
h e wo uld go up No . 4 entry , b ut not No . 3 entry . Phill ips told
h im that they cou ld n ot g o up No . 4 e ntry b ecause the h e a d gate
d rive h a d bee n shov e d aga i nst t h e rib , there were some roof bolts
missing , and there wa s no travelway . Phillips said they would go
up No . 3 entry but Boyd refused to go with him . Phillips told
Boyd i t was his j ob to go with him and look at the affected area.
Boyd told Phillips that if the area could not be looked at from
where they stood , it would not be looked at . At the end of that
conversation , the crew members arrived and they had a brief
2

The citation was issued because Larry Vines, the longwall
manager, and Kevin Sanders, the deputy mine manager, traveled
through a "Crosscut A" type crosscut.

2370

discussion about Crosscut A regarding missing rib and roof bolts
over the stageloader. Phillips told the crew that he wanted them
to build cribs, set timbers, and hang a curtain from the inby
pillar of Crosscut A and extend it over to Shield No. 1. Boyd
said they did not have an MSHA-approved plan, supplemental to the
roof control plan, to correct the area and one was needed.
Phillips told Boyd that an MSHA-approved plan was not required to
make an area safe. This became an impasse between Phillips and
Boyd, who was serving as the miners' Safety Committe~man.
13. About 2:00 a.m., Phillips isolated the crew members and
questioned them individually. Phillips told McMeans to bring the
men in one at a time to No. 3 entry at crosscut B.
14. When he reached Johnson, Phillips stated, "If I asked
how to make that place safe, what are you going to do?" Tr. 92,
see also Tr. 127, 131, and 173 ("I am telling you to go up there
and make the area safe."). Johnson answered, "How do you make
gob safe?" Tr. 92, 127. Phillips said "that's not what I asked
you." Tr. 92 - 93, see also Tr. 127
Johnson said that he would
have to withdraw under his individual safety rights. Phillips
told Johnson to get on the bus. Johnson asked Phillips about
other available work and Phillips said that he was going to give
him other work. There were two or three other miners already on
the bus, and they were all taken by another foreman to shovel a
belt for the remainder of the shift.
15. Phillips isolated the other members of the longwall
crew and told each of them to go to work and make Crosscut A
"safe." One crew member asked if he went, whether there would be
any repercussions and Phillips told him no. So he went to work.
The others withdrew under their individual contract rights, and
were sent to the bus to be taken to do other work.
160
Pursuant t o the labor agreement , if a dangerous
condition exists , Jim Walter Resources has the right to use
avai lable p ersonnel to correct it .
If a miner thinks there is a
h azard that is abnormal , he is supposed to report the problem to
management , and if Jim Walter Resources agrees that corrective
safety work is needed , the miner may be assigned work to correct
t he hazard . When there is a dispute whether work is hazardous ,
t he contract provides that the miner is to be given other
a vailable work .
If the miners ' Safety committeeman disagrees
with management's view that an area or work assignment is safe ,
the contract provides that MSHA is to be called in and the
parties will abide by the findings of the MSHA inspector.
Phillips declined to call MSHA to resolve this safety dispute.

17 . Phillips testified that he gave the miners direct
orders to work in Crosscut A because he wanted to follow the
labor agreement "to the tee." Tr. 202. Johnson testified that

2371

he knew when Phillips was talking to him that Phillips wanted him
to go to work in Crosscut A to "make it safe."
Phillips had
told McMeans to give such orders, but McMeans used hypothetical
language. Phillips felt he had to make the point clear.
18. The following day, March 14, Johnson and several other
crew members were charged with insubordinate conduct for refusing
to make Crosscut A safe. Each was given a 5-day suspension with
intention to discharge. Under the labor contract, the miners
were entitled to a meeting with the mine manager. Following this
meeting, the discipline was reduced to a 2-day suspension.
Johnson objected to this penalty, and filed a discrimination
complaint under Section 105(c) of the Mine Act.
19 . The trial record of Jim Walter Resources, Inc. v.
Secretarv of Labor, 15 FMSHRC 432 (March 1993), was incorporated
by reference at the hearing. The prior case involved a citation
issued at 8:45 a.m., on March 13, 1992, arising from the same
safety dispute involved in this case. When Phillips ordered the
miners to work in Crosscut A without an MSHA-approved plan, the
miners' representative contacted MSHA and requested an inspection
of Crosscut A pursuant to 103(g) of the Mine Act. MSHA found a
violation, and issued a citation stating that miners in the No. 1
longwall section were required to travel through the gob to
remove a shearer, and citing a number of unsafe roof conditions
i n and near Crosscut A. The citation was contested and, after a
hearing, the cftation was affirmed (by this judge) with a finding
that Crosscut A was hazardous and required further roof support
to comply with 30 C.F.R. § 75.202(a).
DISCUSSION, FURTHER
FINDINGS AND CONCLUSIONS

To establish a p rima facie case of discrimination under
205(c} of t h e Act 8 a miner h as t he burden of proving that ( 1 )
he or she engaged in p rotected activity and (2) the adverse
action complained of was motivated "in any part" by the protected
activity o The operator may rebut the prima facie case by showing
e ither that no protected activity occurred or that the adve rse
action wa s in no part motivated by protected activityo
If an
operator c annot rebut the prima facie case , it nevertheless may
d efend affirmatively by proving that it also was mot ivated by the
miner ' s unprotected activity and would have taken the adverse
action in any event for the unprotected activity alone o
Secretary on behal f of Robinette Vo United Castle Coal Co. , 3
FMSHRC 817 ( 198l) o
§

A miner's refusal to work is protected under § 105(c) if
(1) it is based upon a reasonable, good faith belief that the
work involves a hazard or a violation of the Act or a safety or
hiialth standard promulgated under the Act and (2) the .miner gives
reasonable notice to management.
Secretary on behalf of Pratt
v. Red River Hurricane coal Co., 5 FMSHRC 1529, 1533-34 (1983).

2372

I find that Johnson believed in good faith that Crosscut A
was in the gob 'and dangerous to work in because, among other
things, (1) MSHA considered this type crosscut to be in the gob
and dangerous and had cited personnel traveling through such
crosscuts, (2) his UMWA Safety Committeeman believed the area was
dangerous and required an approved supplemental roof-control plan
to make the area safe, and (3) Johnson personally observed
dangerous roof conditions in and near Crosscut A.
Johnson's concern for his safety was confirmed when the
miners' representative called MSHA for an inspection under
§ 103(g) of the Act.
MSHA found that crosscut A was part of the
gob and cited a number of unsafe roof conditions. In this
inspection, on March 13, 1992, before Johnson was disciplined,
Federal Mine Inspector Bill Deason observed that the operator had
dangered off approximately 75 feet of the travelway in the No. 4
entry because of bad roof (beginning at the forward crosscut),
that roof had fallen near Crosscut A, that there was a roof crack
across the entry and a brow, and that unsafe roof conditions in
Crosscut A constituted a hazard to miners in violation of 30
C.F.R. § 75.202. This regulation provides that "the roof, face
and ribs of areas where persons work or travel shall be supported
or otherwise controlled to protect persons from hazards related
to falls of the roof, face or ribs and coal or rock bursts."
When Inspector Deason issued the citation on March 13, the
company promptly submitted a supplement to its roof control plan,
providing for additional roof and rib support in Crosscut A.
Specifically, it proposed to support the area by installing
additional timbers on five foot centers in the No. 3 entry to a
point outby the brow, and to install additional cribbing on
five foot centers from the ribline to the shields in the No. 3
e ntry (as shown i n Ex o G-3 )o The plan was promptly approved by
MSHA and t he c itation was terminated . The supplemental plan ,
although acknowledgi ng that i t was "submitted as a result of the
c onditions being experienced," was submitted under protest by the
company, which stated in the plan: "No. 7 Mine does not agree
with the necessity of the plan and is only doing so to abate the
citation i ssued o ••• ;t Ex o G-3 o
Advancement of the l ongwall put stress on the roof across
Crosscut A as evidenced by the conditions observed by Inspector
Deason o Additional roof support was needed to protect the miners
who worked i n or traveled through the crosscut. The roof support
p rovided in the approved supplemental roof-control plan was
greater and far more detailed and specific than the roof support
earlier indicated by Foreman Phillips.
In the early l980's, the local MSHA Subdistrict Manager
(Mr. Weekly) adopted an enforcement policy to cite a violation if
tile forward longwall crosscut was used as a travelway }7ithout
additional roof support or safeguards. Mr. Weekly's concern was
that roof pressures created by advancing the longwall exerted

23 73

substantial pressures on the forward crosscut and that, as a
regular occurrence, the roof in that crosscut would deteriorate
and present a hazard of falling without warning . Jim Walter
Resources, Inc., 15 FMSHRC at 433, 434.
The enforcement position taken by Mr. Weekly was not a
formal MSHA policy, nor was it reduced to writing. Rather, it
was a local MSHA office directive that was communicated to the
inspectors in an informal manner. Mr. Kenneth Ely, a supervisor
in MSHA's plan group, testified that the enforcement ·policy was
routinely discussed with operators and members of the UMWA at
local safety training meetings.
UMWA Safety Committeeman Boyd was aware of the local MSHA
enforcement policy . During the owl shift on March 13 , 1992, when
management ordered the miners to remove the longwal l shearer
through Crosscut A, Boyd was concerned that management had not
submitted a plan for MSHA to approve the instal lation of roof
support structures prior to working i n or traveling through the
area . Boyd ' s request for a plan was reasonable in light of the
local MSHA pol icy, the roof conditions in Crosscut A, and in
light of the citation that ···MSHA had previously issued because
management personnel traveled through this type crosscut.
Johnson's concern for his safety was also underscored by the
nature of the work to be performed . The removal of a longwall
shearer is a rare event at this mine.
Johnson had never
participated in the removal of a shearer by itself, nor had the
foreman.
Johnson did have experience in removing the entire
longwall unit from the section, and in those instances management
continued to mine the coal face until the longwall was in line
with Crosscut B (Ex. G-4) which goes out to the track area.
Management then removed the entire longwall unit through Crosscut
B under the provisions of the MSHA-approved roof-control plan .
In s uch moves , management installed additional roof supports
a nd safeguards , such as additional roof bolts or double-bolting
in Crosscut B, set additional timbers throughout the crosscut
entry leading to the track and set cribs on both sides of the
crosscut . With these additional roof support structures in
p lace , management t hen transported the entire l ongwall unit off
t he s ection and out to the track .
No such safeguards or additional measures were taken in
p reparing to remove the shearer through Crosscut A. Indeed,
r ather than install additional roof support in the crosscut,
management removed the only two cribs in Crosscut A that had
supported the roof in an area which MSHA later found needed
additional support.
..
Crosscut B was the normal and desired route to remove the
h:ingwall or any large equipment . On March 13, management chose
to remove the shearer through Crosscut A because the entry to
Crosscut B was dangered off. Because of the difficulty of
maneuvering large equipment through Crosscut A, management

2374

removed the cribs from Crosscut A. When General Mine Foreman
Phillips arrived he observed that rib bolts and roof bolts were
missing in Crosscut A and that the roof had fallen from around
the bolts, and there were no cribs supporting the roof. Phillips
believed additional roof support was needed in Crosscut A. In
contrast, the section foreman (McMeans) considered the area "was
safe enough to work in" (Tr. 69, 70), despite the deteriorating
roof, despite the fact that the two cribs had been taken down,
and despite the fact that MSHA considered this to be a gob and
had cited management personnel for traveling through ·such
crosscuts .
Johnson knew that his Safety Committeeman objected to
working in Crosscut A without an approved supplemental roofcontrol plan. He was also aware that the cribs had been taken
down and that the roof was deteriorating .
Also, on other
occasions he had seen the entire roof fall in areas such as
Crosscut A, and was aware that MSHA considered the area to be gob
and had cited personnel for traveling through the crosscut.
When Foreman McMeans isolated Johnson and questioned why he
considered Crosscut A unsafe, Johnson pointed out that the cribs
had been taken down, roof bolts were missing, the area was "in
the gob" and Kevin Sanders, the deputy mine manager , had been
written up by MSHA for traveling through such a crosscut because
it was in the gob . The foreman then asked, "If I asked you to
work in the area, what would you say?" Johnson replied, " I would
be afraid to work in that area" and "I guess I'd have to withdraw
under my individual safety rights." Tr. 67, 91.
As instructed by Phillips, McMeans also isolated and
questioned the other crew members individually.
(1) Safety
Committeeman Boyd considered the area "gob" and believed the area
should be approved by MSHA before they worked in it .
(2) Terry
Acker understood the area to be "gob , 91 knew that two men had been
written up for going through this type crosscut, and wanted MSHA
t o make a determination as to what it would take to make the area
safe.
(3) Charlie Boyd told the foreman that people had been
written up for walking through the crosscut.
(4) Charlie Reed
told the foreman that the area was "in the gob" and must first be
approved by the GI federal. 01
( 5) Matt Smith told him that pins
( r oof bolts) were out over the stageloader, the area needed some
cribs and other steps to make the area safe.
When Phillips arrived, he also isolated the miners and
questioned then individually . Johnson told him that the crosscut
was in the gob and the roof conditions were abnormal (Tr. 106),
he did not know what it would take to make the area safe
(Tr. 122), and explained his position by stating "How do you make
gob. safe? ... Tr. 92, 121, 127, 1 31 .
Phillips did not give Johnson
specific orders as to how the roof should be supported. He
Simply said, "I am telling you to go and make the place safe."
Tr. 173. Johnson exercised his withdrawal rights under the

2375

contract, and was given other available work for the remainder of
the shift. The next shift, Johnson was instructed to go to the
office where he was informed he was being given a 5-day
suspension with intention to discharge for insubordinate conduct.
The discipline was later reduced to a 2-day suspension .
I find that management was given ample notice by the
complaints of Safety Committeeman Boyd, Johnson, and other miners
that they believed Crosscut A was in the gob, the roof was
abnormal, the area was dangerous to work in, an MSHA-approved
supplemental roof-control plan was needed before performing work
there and MSHA had c i ted personnel for traveling through such
crosscuts because they were in the gob. Johnson, on reasonable,
good faith grounds, believed Crosscut A was unsafe to work in,
and that an MSHA-approved plan was needed to "make it safe." He
was not a roof-control expert, and did not know exactly how to
make the area safe. He had reasonable grounds to rely upon the
opinion of his Safety Committeeman in refusing to work there
without an approved plan. In addition, he personally observed
dangerous roof conditions in Crosscut A.
He gave reasonable and
sufficient notice of his safety concerns to management.
Johnson's work refusal was a protected activity under
105(c) of the Act. The operator's discipline of
Johnson therefore violated his safety-complaint rights under
§ 105(c) of the Act.
§

I find that this violation involved serious and aggravated
discrimination and interference with Johnson's rights under
§ lOS(c).
Respondent's adverse action against Complainant involved
more than a 2-day suspension. It included a disciplinary notice
of a 5-day suspension with an intention to discharge. Threats of
l oss of pay and discharge directed at a miner exercising a
p rotected safety-complaint right constitute discrimination and
u nlawful interference under § 105(c) of the Act . See, ~ ' Denu
v. Amax Coal Company , 1 1 FMSHRC 317 , 322 (1989) , (Judge Melick) ;
Moses v. Whitley Development Corp., 4 FMSHRC 1475, 1479 (1982);
and Secretary on behalf of Carson v. Jim Walter Resources. Inc . ,
15 FMSHRC 1993 , 1996-1997 (1993) (Judge Maurer) .
Respondent 9 s method of i solating miners from their UMWA
Safety Committeeman and interrogating them individually to
e xplain why they believed Crosscut A was unsafe was an
i ntimidating and harassing tactic , especially when coupled with
an implied threat of loss of pay and even discharge. The
collective bargaining agreement plainly provided that, "if the
health and safety committee member and management disagree that
the condition is dangerous, and the dispute involves an issue of
federal or. state mine safety laws or mandatory health or safety
regulations, the appropriate federal or state inspection agency
shall settle the dispute on the basis of the findings of the
inspector." Ex. R-1, Sec. i(3). Respondent refused to address
the safety concerns of the miners by complying with this contract

2 376

provision, i.e., by calling in MSHA to inspect Crosscut A and to
resolve the question of whether an approved supplemental roof
control plan was required to provide additional roof supports
there to remove the shearer.
The Commission stated in Moses v. Whitley Development Corp.,
4 FMSHRC 1475, 1479 (1982) that: "[C]oercive interrogation and
harassment over the exercise of protected rights is prohibited by
§ 105(c) (1) of the Mine Act. 11 § 105(c) (1) states that "no person
shall discharge or in any manner discriminate against. • • or
otherwise interfere with the exercise of the statutory right of
any miner." (Emphasis added.)
In reaching this conclusion, the Commission was guided by
the legislative history of the Mine Act which referred to "the
more subtle forms of interference, such as promises of benefit or
threats of reprisal." Moses, supra, at 1478, citing Legislative
History at 624.
The Commission observed that a "natural result"
of such subtle forms of interference "may be to instill in the
minds of employees fear of reprisal or discrimination." Moses,
supra, 1478. In Phillips v. Interior Board of Mine Operators
Appeals, 500 F.2d 772, 778 (D.C •. Cir. 1974), the Court observed
that "safety costs money" and "miners who insist on health and
safety rules being followed, even at the cost of slowing down
production, are not likely to be popular with mine foreman or top
management."
In Denu v. Amax Coal Company, 11 FMSHRC 317, 322, (1989)
(Judge Melick), a supervisor repeatedly asked a miner if he knew
the consequences of his actions and told him that those
consequences included discharge. Although the miner was told
that he would receive no disciplinary action, the judge concluded
that the questioning itself constituted unlawful interference:
! f ind however that threats of disciplinary action and
d ischarge directed to a miner exercising a protected
right c learly constitute unlawful interference under
§ 105(c) (1 ) , whether or not those threats are later carried
out. Such threats place the miner under a cloud of fear of
losing his ··job . In addition, while under such threats, a
miner would be even less likely to exercise his protected
r ights when f uture situations might clearly warrant such an
exercise o

Taken as a whole , I find that Respondent's conduct in
i solating Johnson from his Safety Committeeman and twice
i nterrogating him (by his section foreman and then by the general
mine foreman) with an implied threat of losing pay and even his
job, and acting on such threat with a 5-day suspension with
intention to discharge, later reduced to a 2-day suspension,
constituted aggravated, unlawful discrimination and interference
With Johnson's safety-complaint rights under § 105(c) ~ of the Act.

2377

Respondent has a substantial history of violations of
105(c) of the Act. Also, in the 24-month period before the
violation in this case, Respondent accumulated $5,286.00 in
delinquent civil penalties for violations of federal safety
standards. These penalties were not contested by Respondent, and
became final orders of the Commission. Failure to comply with
such orders is an adverse factor in Respondent's compliance
history under the Act.
§

Considering all the circumstances of this case and the
criteria in § llO(i) of the Act, I find that a civil penalty of
$5,000.00 is appropriate for the violation found above.
CONCLUSIONS OF LAW

1.

The judge has jurisdiction in this proceeding.

2.
Respondent violated § 105(c) of the Act by
discriminating against James Johnson and interfering with his
safety-complaint rights under the Act.
ORDER
WHEREFORE, IT rs ORDERED that, within 30 days of the date of
this Decision, Respondent shall:

1.
Compensate James Johnson for any loss of pay or other
monetary benefits related to his work refusal on March 13, 1992,
with retroactive interest computed in accordance with the
Commission's decisions on interest.
2.
Restore James Johnson to the same seniority, pay,
status, benefits, and job conditions that would apply to his
e mp l oyment had he not been disciplined concerning the events of
March 13 0 1 99 2 .
3.
Expunge from James Johnson vs personnel record all
references to its discipline or evaluation of him concerning the
events of March 13, 1992; and Respondent shall not refer to such
d iscipline or evaluat ion of him concerning any future employment
i nquiry or reference o

4o
Pay to the Secretary of Labor a civil penalty of
$5 1 000 . 00 o
Post a copy of this Decision, unobstructed and
So
p rotected from the weather, on a bulletin board at subject mine
t hat is available to all employees; and it shall remain there for
at least 6~ consecutive days.

2378

I retain jurisdiction of this case pending a final order on
damages. If the parties are unable to stipulate damages and
interest due under paragraph 1, the Secretary is directed to file
a proposed Order on Damages not later than December 1, 1993.
Respondent shall then have 10 days to respond and, if
appropriate, a hearing will be held on damages.

uMt~
':1-IW"~
William Fauver
Administrative Law Judge
Distribution:
William Lawson, Es q., Office of the Solicitor, U.S. Department of
Labor, Suite 150, 100 Centerview Drive, Chambers Building,
Highpoint Office Center, Birmingham, Alabama 35203 (Certified
Mail)
David M. Smith, Esq. and Mark Strength, Esq., Maynard, Cooper &
Gale, 1901 Sixth Avenue, North, 2400 AmSouth, Harbert Plaza,
Birmingham, Alabama 35203-2602 (Certified Mail)
/efw

2379

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

NOV 181993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. YORK 93-81-M
A. C. No. 18-00410-05522

Vo

Laurel Operation
LAUREL SAND AND GRAVEL I INC . I
Respondent
DECISION

Appearances :

John M. Strawn, Esq., Office of the Solicitor,
U. S. Department of Labor, Philadelphia, PA for the
Petitioner;
Terry B. Eichelberger, Director of Safety for
Laurel Sand & Gravel, Inc. , Laurel, Md for the
Respondent

Befor e:

Judge Weisberger

This case is before me based on a Peti ti on for A.ssessment of
Civil Penalty alleging violations by Laurel Sand and Gravel, Inc.
(Laurel ) of v arious mandatory regulatory standards. The case was
s chedul e d to be h eard on September 23 , 199 3 0 On September 20 ,
1993 , the heari ng was cancel e d at the request of the parties ,
b ased on t heir asserti ons that a settlement had been reached
r egarding five of the six c i tations at issue. The parties also
advised that the remaining citation would be submitted for
r esolution based upon a motion for summary decision. On October
12, 19 93 , the Secretary filed a motion for summary dec i sion o on
t he same date , Laurel f i l e d i t 9 s response to the motion f or
s ummary decis i on o
la

Ci tat ion No o 408280 0 0
A. St i pul ati ons
The parties stipulated to the followi ng facts:
1.

The Laurel operation is owned and operated by
Respondent Laurel Sand and Gravel, Inc.

2.

The operation is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.

2380

3.

The Administrative Law Judge has jurisdiction over
these proceedings.

4.

The subject Citation was properly issued and
served by a duly authorized representative of the
Secretary of Labor upon an agent of the Respondent
at the date, time and place stated therein.

s.

The assessment of a civil penalty in this
proceeding will not affect Respondent's ability to
continue in business.

6.

The appropriateness of the penalty, if any, to the
size of the operator's business should be based on
the following facts:
a)

Respondent company's annual hours for 1991
are 207,878;

b)

The Laurel .. operation's annual hours for 1991
are 74,850;

7.

Respondent demonstrated ordinary good faith in
attaining compliance after the issuance of the
Citation.

8.

Respondent was assessed a total of 18 Citations
based upon 28 inspection days in the 24 months
immediately preceding the issuance of the subject
Citation. See Joint Exhibit "A", Respondent's
history of previous violations.

9o

Metal/ nonmetal i nspector (hereinafter "M/NMI" )
J ames E o Goodale i s an experienced inspector with
s even y ears as an i nspector with MSHA and 16 y ears
i n the i ndustry .

10 .

The Laurel operation is a small sand and gravel
processing facility .

11.

On December 9- 10 , 199 1 , M/ NMI Goodale inspected
t he Laurel operation and issued a number of
Citations including the subject Citation No .
4082800 0 see Joint Exhibit 11 B11 o

l 2o

M/NMI Goodale took notes during his inspection
corresponding to Citation No. 4082800. See Joint
Exhibit "C" .

238 1

13.

M/NMI Goodale was accompanied on his inspection by
several of Respondent's employees, Terry B.
Eichelberger, Director of Safety and Quality
Control, Richard c. Ramsay, Jr., Maintenance
supervisor, and James Roy, Maintenance Technician.

14.

on December 10, 1992, M/NMI Goodale and the rest
of the party observed approximately slx upright
unsecured compressed gas cylinders located along
one of the exterior walls of the maintenance shop
of the Laurel operation.

15.

As a result, M/NMI Goodale issued Citation No.
4082800 as a "non-significant and substantial"
§ 104(a) citation for violation of 30 C.F.R.
§ 56.16005.

16 .

The regulation requires: "Compressed and liquid
gas cylinders shall be secured in a safe manner."

17.

M/NMI Goodale indicated that the citation was
"non-significant and substantial" based on
findings of moderate negligence, of one miner
exposed, of unlikely occurrence of injury, and of
potential injuries of lost workdays or restricted
duties.

18.

Respondent's employees, specifically welders and
maintenance workers, had access to the area
outside of the maintenance shop but were not
required to go to that area as a part of their
regular duties.

19 .

The cylinders had open or missing valves and had
been left abandoned by the previous owner of the
f ac i l i t y .

20 .

There was no residual pressure in the cylinders.

21 .

A p roposed penalty of $50 . 00 was assessed for
Citation No . 4082800.

All exhibits are incorporated herein by reference and
made a part hereof • 1

Joint Exhibits A, B, and C are admitted, and are considered
to be part of the record of this proceeding.
1

23 82

B.

Discussion

In essence, the citation at issue alleges that several
compressed gas cylinders located at the maintenance shop were not
secured in place, in violation of 30 C.F.R. § 56 . 16005 which
provides that compressed gas cylinders"··· shall be secured in a
safe manner." In essence, Respondent does not deny that the
cited cylinders were not secured. However, Respondent argues
that, in essence, since the cylinders were not under any
pressure, no hazard was presented to persons. I find that
Laurel's argument is without merit for the reasons that follow.
According to the plain language of § 56.16005 supra, a
violation is established if ·compressed cylinders are not
secured in a safe manner. Laurel agrees that the cylinders at
issue were not secured. In Tide Creek Rock Products, 4 FMSHRC
2241 (December 22, 1982) , the operator, who was cited under
section 56.16-5 2 , contended that the bottles were not empty, and
therefore did not present a hazard. Judge Koutras, in affirming
the citation found as follows: "The standard cited makes no
distinction between full or empty cylinders, and Respondent's
defense on this ground is rejected." (Tide Creek Rock Products
supra, at 2250.
Judge Koutras' reasoning finds support in the
clear wording of Section 56.16005 supra, and I follow it herein.
For these reasons, I conclude that it has been established
that Laurel violated Section 56.16005 supra, as alleged in
Citation No. 4082800. Respondent has not interposed any further
defenses. Based upon the criteria set forth in Section llO(i) of
the Act as stipulated to by the parties, regarding the size of
Laurel's operations, the effect of a penalty upon it's ability to
continue in business, it's history of violations, and it's good
f aith in attaining compliance after the issuance of the
c itation , I conclude that a penalty of $50.00 is appropriate for
this v iolat ion .
II .

Citation Nos . 4 082793, 4082794. 4082795, 4082796 and 4082799

The Secretary's Motion to Approve Settlement and its Amended
Motion regarding Citation Numbers 4082793 , 4082794 , 4082795 ,
~ 082796 and 4082799 , alleges that the parties propose to reduce
t he penalties sought from $380 to $200. In addition, the
Secretary seeks to vacate Citation No. 4082793 . Based on the
representations in the Motion , and the documentation in the
pleadings , I find that the settlement is appropriate and
consistent with the purposes of the Federal Mine Safety and
Health Act of 1977 . The Motion accordingly is GRANTED.

2

Presently numbered Section 56.16005, supra.

2383

ORDER
It is hereby ORDERED that citation No . 4082800 be affirmed,
and that Laurel pay a total civil penalty of $250 within thirty
days of this decision .

:r.·
~

W'b~

vram e s erger
Administrative Law Judge

Distribution:
John M. Strawn, Esq., Office of the Solicitor, U.S. Department of
Labor, 3535 Market Street, 14480 Gateway Building, Philadelphia,
PA 19104 (Certified Mail)
Terry B. Eichelberger , Director of Safety, Laurel Sand & Gravel,
Inc., 5601 Van Dusen Road, P.O . Box 719, Laurel, MD 20707
(Certified Mail)
/ efw

238 4

DDBRAL lllJIB SUETY UD BBALTB RBVZBW COJOUSSZOB

OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 181993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF JAMES W. MILLER,
Complainant

v.

REINSTATEMENT
.. TEMPORARY
PROCEEDING

.
:

Docket No. York 93-155-D
MSHA Case No. MORG CD 93~06
Mettiki Mine

METTIKI COAL CORPORATION,
Respondent
ORDER OF TEMPORARY ECONOMIC REINSTATEMENT

Before: Judge Feldman
This matter is before me based upon an application for
temporary reinstatement filed pursuant to Section 105(c) (2) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 815(c) (2), by the Secretary of Labor on behalf of
James W. Miller. This case was scheduled for hearing on
November 3 , 199 3 in Morgantown , West Virginia . However , prior to
'Che heari ng , th~ part i es fi led a stipulation f or temporary
e conomic r e i nstatement for my approval.
The terms of the stipulation are that the respondent,
Mettiki coal Corporation, will economically reinstate Mr. Miller
by payment to him o f the current standard hourly wage for the
posi tion he held at the t ime o f his termination . Mr . Miller will
a l so c ontinue t o receive such current benefits and bonuses to
which he woul d have been entitled if he had remained in the
r espondentvs employment . Payment of wages , benefits and bonuses
will be made t o Mr . Miller on the condition that he not actually
return t o work on company property .
The parti~s . further stipulated that Mr. Miller's rights
under this temp~rary economic reinstatement agreement are
retroactive to October 18, 1993, and that Mr. Miller's rights
under this agreement shall continue in accordance with the
provisions of Section l05(c) (2) of the Mine Act. Consequently,
the respondent withdraws its September 27, 1993, request for
hearing in this temporary reinstatement matter.

238 5

Accordingly, the parties' request for approval of the terms
of their stipulation for temporary economic reinstatement IS
GRAN'l'ED.
Mr. Miller is to be economically reinstated to the same
salary and benefits that he was entitled to as of the date of his
termination from the Mettiki Coal Corporation. Payment of such
salary and benefits shall be retroactive to October ~8, 1993, and
shall continue until the Secretary acts on Mr. Miller's
underlying discrimination complaint or until the parties agree
that temporary reinstatement is to e terminated.

Jerold Feldman
Administrative Law Judge

Distribution:
Maureen A. Russo, Esq. U.S. Department of Labor, Office of the
Solicitor , 3535 Market Street, Room 14480, Philadelphia, PA 19104
( Certified Mail)
Timothy M. Biddle, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, o.c. 20004-2595 (Certified Mail)
/ 11

2 386

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

NOV 191993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
S & H MINING, INCORPORATED,
Respondent

CIVIL PENALTY PROCEEDINGS
:

Docket No. SE 93-202
A.C. No. 40-03011-03545

..
. Docket No. SE 92-396
A.C . No. 40-03011-03528
..
:

S & H Mine No. 7

DECISION

Appearances:

Thomas A. Grooms., Esquire, Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Imogene A. King, Esquire, Frantz, McConnell
and Seymour, Knoxville, Tennessee, for
Respondent

Before :

Judge Melick

These cases are before me upon the petitions for civil
penalty filed by the Secretary of Labor pursuant to Section
105(d) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seq., the "Act , " charging S & H Mining,
Inc o (S & H) with three violations of mandatory standards and
s e eking civil penal t i es of $ 2 , 440 for those violations . The
genera l i ssue is whether S & H v iolated the cited standards
and , if so , what i s the appropriate civil penalty to be
a ssessed . Additional specific issues ·are addressed as noted.
The citations at bar were issued by Inspector Don McDaniel
of the Mine Safety and Health Administration (MSHA ) as a result
of his i nspection at the S & H Mine No o 7 on May 7 , 1992 .
Ci tation No . 338351 2 issued pursuant to Section 104(d)(l ) of
t he Ac t 1 alleges a "si gni ficant and substantial" violation of

Section 104(d)(l) provides as follows:
"If, upon any inspection of a coal or other mine,
an . authorized ·r epresentative of the Secretary finds that
there has been a violation of any mandatory health or safety
standard, and if he also finds that, while the conditions
created by such violation do not cause imminent danger,
such violation is of such a nature as could significantly
and substantially contribute to the cause and effect of a
coal or other mine safety or health hazard, and if he finds

2387

the mine operator's roof control plan under the standard at
30 C. F . R. § 75.220 and charges that "the approved roof control
plan was not being complied with in the No. 7 entery (sic] on
the 001 working section had been driven 22 feet and 9 inches
wide for a distance of 15 feet long and additional roof support
had not been installed." It is not disputed that the approved
roof control plan required that the entries be driven no wider
than 20 feet .
Inspector McDani e l was sent to the s & H No. 7 Mine to
investigate a telephone report of an accident and injury.
McDaniel was met by Mi ne superintendent Charles White and they
proceeded underground to check the accident area. According
to McDaniel, in the area where the accident occurred and rock
had fallen from the roof, the entry was excessively wide.
McDaniel testified that he and White measured the entry widths
at four locations along 15 feet 9 inches of entry and f ound
the entry at three locations to be ·· 22 feet 9 inches and at
one location to be 22 f eet 6 inches (Tr. 16). These areas
had not been supported by added roof bolts at the time of the
accident and in the area of the roof fall.
McDaniel opined that the violation was the result of
"unwarrantable failure" because Steve Phillips, who was foreman on the shift preceding the accident on May 5, 1992, had
also been operating the conti nuous miner on that shift and
acknowledged that he had in fact made the cited cuts on the
morning preceding the injury, i.e., the cuts that created the
excess widths . Phillips also acknowledged to McDaniel that he
had performed the preshift examination for his shift and that
Foreman Willie Byrd performed a preshift examination for his
s econd shift o Under the c ircums tances McDaniel concluded that

f n . 1 ( conti nued )
such v iolati on to be c aused by an unwarrantable failure of
s uch operator to c omply with such mandatory health or safety
s tandards 8 he shall i ncl ude such finding i n any c i tati on g i ven
t o t he operator under this Act . If, during the same i nspection
o r a ny subsequent i nspection of such mine within 90 days after
t he i ssuance of such citati on , an authorized representati ve of
t he Secretary finds another vio l ati on of any mandatory health
o r safety standard and finds such violation to be also caused
by an unwarrantable fa i lure of such operator to so comply , he
shall forthwith issue an order requiring the operator to cause
all persons ·in the area affected by such violation, except those
persons referred to in subsection (c) to be withdrawn from, and
to be prohibited from entering, such area until an authorized
representative of the Secretary determines that such violation
has been abated."

238 8

both foremen should have discovered the excess widths and
should have removed all miners and supported the roof before
allowing anyone in the area.
In reaching his conclusions, McDaniel further relied
upon statements by Second Shift Miner Operator Mark Moran
who told McDaniel that before the roof fall he noticed that
the roof bolts were located too far from the rib and that
he (Moran) had asked Second Shift Foreman Willie Byrd to
correct the condition.
McDaniel opined that a roof bolter could have bolted
the roof in the cited area without removing the continuous
miner by lifting the cable over the roof bolter or by protecting the miner's power cable with boards. McDaniel also
concluded that, alternatively, they could have timbered the
area without removing the continuous miner. McDaniel concluded
that by allowing continuing efforts to clean up the face with
the mining machine after Moran. had notified Foreman Byrd
of the excess widths, the violation was the result of
"unwarrantable failure."
Foreman Willie Byrd was night shift foreman at the time
of the accident on May 5, 1992. He proceeded underground
around 2:30 p.m. on that date to perform a preshift examination.
He estimated the preshift exam took about 45 minutes, including
about 15 minutes at the face. Sometime during the shift, miner
operator Mark Moran called him to the section. Moran was then
waiting for a shuttle car to return and showed Byrd what he
described as a spot that "looked a little wide." Byrd admitted
that indeed you could tell it was "a little bit wide."
According to Byrd , he then told Moran to continue to clean
up l oose coal with the continuous miner to enable the bolting
machine to position itself and then to "get out." Byrd conceded
that loose coal was in front of the continuous miner at the
time and that it was company procedure to clean that area before
removing the continuous miner . He did not see any need to come
VYstraight out o00 Byrd reiterated that after Moran showed him
·c he wide spot he told the bolter to bolt the area. Byrd then
proceeded elsewhere for about five minutes before learning of
t he rock fall . He admittedly had checked the same area on his
preshift exam but concluded the area "wasn't that noticeable."
While he believed the last row of bolts looked a little wide
he did not believe it was in excess of 20 feet. Byrd further
admitted that the continuous miner did not have to clean up
before the bolter came in but he nevertheless told Moran to
clean up the loose coal in front of the miner before backing out.
Byrd also admitted that he could have placed timbers in the wide
area even without removing the continuous miner.

2389

As noted, the continuous miner operator for the second
shift on May 5, 1992, was Mark Moran. Moran testified that
he proceeded underground on May 5 at about 3:00 p.m. and
began operating the miner at around 3:45 or 3:50 p.m. He
completed a cut about 10 foot wide and 20 feet deep before
the roof fall accident. He had been waiting for the shuttle
car to leave and started backing up the continuous miner. In
the process of backing up, the victim, Mr. Suttles, picked up
the trailing cable and at that time the roof fall occurred.
Eddie Suttles testified that on May 5, 1992, he was the
helper on the second shift assisting Moran with the continuous
miner. He recalled that, after cleaning up, the continuous miner
started backing up. Suttles first held the miner cable as the
shuttle car backed up. It was at that point that the rock
fell on Suttles dislocating his vertebrae and resulting in
paralysis.
Steve Phillips, miner operator and foreman on the first
shift on May 5, 1992, acknowledged that he made the cited cuts
sometime after the dinner break at 11:00 or 11:30 on May 5.
He had to make a left turn with the miner into the No. 7 entry
and had to make several cuts to get around the turn. According
to Phillips the area looked like the diagram in Exhibit R-3. He
stated that if he thought he had been cutting wide he would have
immediately stopped operating, but he did not see anything that
lead him to believe it was more than 20 feet wide. He stated
that he did not report any excess widths in the mine examination
book because he did not see any excess width. He noted, however,
that the usual cut varied from 16 feet to 18 feet wide and
further acknowledged that the entry in fact was 4-1/2 feet wider
t han the usual 18 foot cut o
Roof Bolter Sam Ward bolted the area in the No . 7 entry
a fter i t had been cut by Phillips on that shift. Ward testif ied he could see "nothing wrong with the entry," only "just a
little corner cut out when I saw it after the roof fall. "
Citation No . 3383512
The violation charged in this citation is not disputed,
but only the "unwarrantable failure," negligence and gravity
f indings. "Unwarrantable failure" has been defined as conduct
t hat is "not justifiable" or is "inexcusable." It is aggravated
conduct by a mine operator constituting more than ordinary
negligence. Yougheqheny and Ohio Coal Company, 9 FMSHRC 2007
(1987); Emery Mining Corp., 9 FMSHRC 1997 (1987). In this case
it is clear from the testimony alone of Second Shift Foreman
Willie Byrd that the violation was the result of an inexcusable
and aggravated omission constituting more than ordinary
negligence.

2 39 0

It is not disputed that Byrd was apprised by Continuous
Miner Operator Moran of the cited excess widths. Byrd himself admitted that "you could tell it was a little bit wide"
(Tr. 88). After being apprised of this fact Byrd nevertheless
directed Moran to continue to clean up loose coal in the face
area in front of the miner before backing out. Byrd explained
that he did not order the continuous miner operator to back
out immediately because "it was just a procedure ••• we always
clean it up" (Tr. 89). In the process of removing this coal
a shuttle car thereafter entered the No. 7 entry and, when
backing up, caused Miner Helper Eddie Suttles to step into
the wide, unsupported area where the roof material fell causing
severe injuries and paralysis. Under the circumstances the
violation was clearly the result of "unwarrantable failure"
and high negligence.
The violation was also "significant and substantial"
and of high gravity. A violation is properly designated as
"significant and substantial" .if, based on the particular
facts surrounding that violation, there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature. Cement
Division. National Gypsum co., 3 FMSHRC 822, 825 (1981). In
Mathies Coal co., 6 FMSHRC 1, 3-4 (1984), the Commission
explained:
In order to establish that a violation of a
mandatory standard is significant and substantial
under National Gypsum the Secretary must prove:
(1) the underlying violation of a mandatory safety
standard, (2) a discrete safety hazard -- that is,
a measure of danger to safety -- contributed to by
t he v iolation 0 ( 3 ) a reasonably likelihood that the
hazard contributed to will result in an injury 8 and
( 4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.
See also Austin Power Co. v . Secretary , 861 F.2d
9 9 0 103-04 ( 5th Cir . 1988) , aff'g 9 FMSHRC 2015 0 2021

( 1987 ) ( approving Mathies criteria ).
The third element of the Mathies formula "requires that
t he Secretary establish a reasonable likelihood that the
hazard contributed to will result in an event in which there
is an injury . " (U.S. Steel Mining Co., 6 FMSHRC 1834, 1836
( 1984) , and also that in the likelihood of injury be evaluated
in terms of continued normal mining operations {U.S. Steel
Mining co •• Inc., 6 FMSHRC 1473, 1574 (1984); see also
Halfway. Inc., 8 FMSHRC 8, 12 (1986) and Southern Oil Coal
Co., 13 FMSHRC 912, 916-17 (1991).

2391

Since the rock that fell upon continuous miner helper
Eddie Suttles in fact fell from the wide and unsupported area
cited as a violation in this case causing serious injuries and
paralysis, the violation was without question "significant and
substantial" and of high gravity.
Citation Nos. 3383514 and 3383515
Citation No. 3383514 alleges a violation of the standard at
30 C.F.R. § 75.303 and charges as follows:
The preshift examinations for the second shift
on the 5-5-92 was not adequate. The No. 7
entery [sic] had been driven 22 feet and 9 inches
wide on the 1st shift and this condition was not
recorded in book.
The cited standard provides in relevant part as follows:
(a) Within 3 hours 'immediately preceding the
beginning of any shift, and before any miner in
such shift enters the active workings of a coal
mine, certified persons designated by the operator
of the mine shall examine such workings and any
other underground area of the mine designated by
the Secretary or his authorized representative.
Each such examiner shall ••• examine and test the
roof, face, and rib conditions in such working
section; examine active roadways, travelways •••
and examine for such other hazards and violations
of the mandatory health or safety standards, as
an authorized representative of the Secretary
may from time to time require. o o o If such mine
examiner finds a condition which constitutes a
violation of a mandatory health or safety standard
or any condition which is hazardous to persons who
may enter or be in such area, _he shall indicate
such hazardous place by posting a 'danger' sign
conspicuously at all points which persons entering
such hazardous place would be required to pass,
and shall notify the operator of the mine. No
person, other than an authorized representative of
the Secretary or a State mine inspector or persons
authorized by the operator to enter such place for
the purpose of eliminating the hazardous condition
therein, shall enter such place while such sign is
so posted. Upon completing his examination, such
mine examiner shall report the results of his examination to a person, designated by the operator to
receive such reports at a designated station on the
surface of the mine, before other persons enter the
underground areas of such mine to work in such shift.

2392

Each such mine examiner shall also record the results
of his examination with ink or indelible pencil in a
book approved by the Secretary kept for such purpose
in an area on the surf ace of the mine chosen
by the operator to minimize the danger of destruction
by fire or other hazard, and the record shall be open
for inspection by interested persons.
·
Citation No. 3383515 alleges a "significant and substantial"
violation of the standard at 30 c.F.R. § 75.304 and reads as
follows:
The on-shift examinations for 5-5-92 were not adequate.
The No. 7 entry on the 001 working section was mined
22 feet and 9 inches wide and this condition was not
recorded in the approved book.
The cited standard reads, in part, as follows:
At least once during each coal-producing shift, or
more often if necessary for safety; each working
section shall be examined for hazardous conditions
by certified persons designated by the operator to
do so ••• •
According to Inspector McDaniel these citations were
based upon statements that Foreman .. Phillips had performed a
preshift examination in the cited area but failed to report
the excess widths in the preshift examination book. Based
upon information that Foreman Willie Byrd had also performed
a preshift examination for the second shift and failed to
~eport t h i s condition i n the preshift exami nati on books ,
~cDanie l also f ound a viol ati on of the reporting requi rements o
McD~nie l t estified t hat he also based citation No . 3383515
upon Phillips ' admi ssi on that he had performed a preshift
and onshift examination but failed to observe the excess
widths. McDaniel noted that Foreman Phillips was the same
person who in f act c ut the c ited wide areas .

s & H does not deny these violati ons of the preshift
and onshi ft examination requirements but maintains that its
negli gence was "non-existent or low due to the conditions then
existi ng which served to obscure the violation." However,
based on the evidence that First Shift Foreman Steve Phillips
h imself created the cited wide cuts around 11:00 or 11:30 on
May 5, i n an admittedly unusual maneuver with the mining
machine, I find that he was thereby placed on notice that an
excess width problem may thereby have been created and it was
therefore his duty to ensure himself that there was not an
excess width at that location. Under the circumstances I find

2393

that S & H was indeed negligent in tailing to have observed
and noted the excess widths in the preshift and onshif t
examination books.
The violations were also "significant and substantial"
since it may reasonably be inferred that the failure to have
reported the condition led to the injury and paralysis of the
miner helper. The citations are accordingly affirmed with
the "significant and substantial" findings.
Under the circumstances, and considering all the criteria
under section llO{i) of the Act, I · find that a civil penalty
of $220 each for the violations cited in Ci tation Nos. 3383514
and 3383515, and $2,000 for the violation charged in Citation
No. 3383512, are appropriate.
ORDER

..

Citation No. 3383512 is affirmed as a citation under
section 104{d){l) of the Act ands & H Mining, Inc. is
directed to pay a civil penalty of $2,000 for the violation
charged in that citation within 30 days of the date of this
decision. S & H Mining, Inc. is further directed to pay
within 30 days of the date of this decision civil penalties of
$220 each for the violations charged in Citation Nos. 3383514
and 3383515.

I'

'

\(tll,. \;lL l\_-!

1\

Gary Melick
Administrativ

Law Judge

Distri bution :
Thomas A. Grooms , Esq . 0 Of f ice of the Solicitor ,
U.S. Department of Labor , 2002 Richard Jones Road,
Sui te B-201 , Nashville , TN 37215 (Certified Mail )
I mogene A. King , Esq ., Frantz , McConnell and Seymour ,
P.O. Box 39 , Knoxville , TN 37901 (Certified Mail)
\ lh

2394

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

NOV 1 91993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOHN LACEK,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. WEST 93-106-D

Cordere Mine

F & E ERECTION COMPANY,
Respondent
ORDER OP DISMISSAL

The Secretary of Labor has moved to withdraw his complaint
i n this discrimination proceeding on the grounds that the parties
have resolved all issues relating to this matter and that
Respondent has made proper payment to Mr. Lacek. The parties
have also provided the undersigned with a copy of their
stipulation of settlement and consent.
On November 8 , 1993 , the undersigned conducted a conference
c a ll with counsel for both parties to discuss the meaning and
effect of paragraph 5 of the stipulation and settlement . That
paragraph r eads as fol lows :
In consideration of the payment provided for herein,
John Lacek expressly waives reinstatement and agrees
that F & E Erection Company shall not be obligated to
employ him on any f uture j ob .
I hereby grant the motion to withdraw and dismiss this case
on t he understand i ng that paragraph 5 of the sti pulation and
s ettlement does not mean that if Mr . Lacek should in the future
a pply f or employment with Respondent that Respondent is entitled
t o discriminate aga i nst him for the exerci se of his rights under
t he Federal Mine Safety and Health Act. I also do not read thi s
paragraph as waiving any rights Mr. Lacek or the Secretary of
Labor may have in filing a complaint pursuant to section 105(c)
of . the Act if Respondent were to discriminate against Mr. Lacek
in the future for exercising his rights under the Act at any
time; past, present, or future.

2395

ORDER

The Secretary of Labor's motion to withdraw his complaint is
granted and this case is dismissed.

~~'f:=:n
Administrative Law Judge
703-756-4572
Distribution:
Susan J. Eckert, Esq., Office of the Solicitor, u. s. Department
of Labor, 1585 Federal Bldg., 1961 stout st., Denver, co 80294
(Certified Mail)
James s. Cheslock, Esq., Jeffers, Brook, Kreager & Gragg, Inc.,
9th Floor, Trinity Plaza II, 745 E. Mulberry, San Antonio, TX
78212-3166 (Certified Mail)
/jf

2 396

FEDERAL MXNE SAFETY AND HEALTH REVXEW COMHXSSION
1244 SPEER BOULEVARD #280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

NOV 2 31993
SECRETARY OF LABOR,
MINE SAFETY ANO HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
ENERGY WEST MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDING

.
..

Docket No. WEST 91-251
A.C. No. 42-01944-03586
Cottonwood Mine

:

DECXSXON ON REMAND

Before:

Judge Lasher

The Federal Mine Safety and Health Review Commission, in its
Decision of September 27, 1993, rejected the "substantial possibility" formulation as the equivalent of "reasonable likelihood"
i n the third element of its "Significant and Substantial" (S&S)
f ormula set forth in Mathies Coal co. , 6 FMSHRC 1 , 3-4 (January
1 984 )0
In so doing , (1) t he conclusion reached in my decision in
this matter t hat t he violation committed by Respondent Energy
West as charged i n Citation 3413898 was S&S was vacated , ( 2) the
Commission requested application of its traditional Mathies formula for determination of the issue, and (3) clarification of my
fi nding that the mine was "gassy" and findings regarding past
i gnitable methane l evels were requested .
After reviewing the record in t his matter , I conclude that
the evidence that the mine is gassy i s too general (II-T . 133 ,
139- 140) and is not sufficiently supported. Likewise, the evi d ence of past high levels of methane in the mine was sufficiently
general and contradictory between Inspectors (see fn. ' 6 of
Remand ) to l ack the persuasiveness necessary for such finding.
Accordingly:
1.

The finding that the mine is gassy is VACATED and, as the
Commission specifically requested in its Remand, it is here
determined that there is not sufficient evidence on this
record to determine whether the mine is or is not, or has
been, subject to section 103(i) spot inspections.

2397

2.

The testimony of Inspector Donald Gibson at II-T. 139-140 is
rejected as too general and my finding that there had
existed prior ignitable levels of methane at the mine is
VACATED.
(See fn. 6 of Remand).

3.

a.

Applying the Mathies test, and determining whether
there existed a reasonable likelihood that the hazard
contributed would result in an injury, it is determined
that there is no such likelihood since the mine was not
determined to be gassy and since there was no evidence
of record that the mine had ever had ignitable levels
of methane.

b.

Citation No. 3413898 is MODIFIED to delete the "Significant and Substantial" designation thereon . 1

~.d;:.re' d

#~~~-~>fa--

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Robert Jo Murp h y 0 Esqo u Office of t he Sol i c i tor , U.S. Department of Labor 0 158 5 Federal Office Building , 1 96 1 Sto ut Street ,
Denver g co 8 029 4
( Certifi ed Mail )
Thomas C . Means , Esq., CROWELL & MORING, 1001 Pennsylvania
Avenue , N.Wo u Washington u D. C . 20004
( Certified Mail )

ek

It is understood that the Corrunission has, in its remand order, reserved to itself responsibility for recalculation of penalty for this Citation,
as modified.

2 39 8

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

NOV 2 4 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. KENT 93-487
A. C. No. 15-16708-03569

v.
Docket No. KENT 93-488
A. C. No. 15-16708-03570

NEW HOPE OF KENTUCKY, INC.,
Respondent

Docket No. KENT 93-489
A. C. No. 15-16708-03571
No. l

Mine

DECISION APPROVING SETTLEMENT
Appearances :

Before :

Thomas A. Grooms, Esq., Office of the Solicitor,
U. s. Department of Labor, Nashville, Tennessee,
for the secretary;
Mr. Reece Lemar, New Hope of Kentucky, Inc., for
Respondent.

Judge Maurer

These cases are before me upon a petition for assessment of
c ivil p enalties u nder section 1 05 (d) of the Federal Mine Safety
a n d Health Act of 1977 (the Act ). An evidentiary hearing in
t hese matters was held on October 21, 1993, in London, Kentucky.
At the conclusion of that hearing, the parties filed a motion to
approve a settlement agreement and to dismiss these cases.
Th e citations , i nitial assessments , and the proposed
settlement amounts are as follows :
CITATION /
ORDER NO.

PROPOSED
ASSESSMENT

PROPOSED
SETTLEMENT

$

$

KENT 93-487
9885241

500

100

KENT 93-488
3828487
3828488
3828490

136
147
220

2399

136
147
170

50
252
50
50
147

50
202
50
50
147

6(}0
1000
1000
1800

400
600
600
1040

$ 5952

$ 3692

3828494
3828995
3828996
382899 7
3828999
KENT 93-489
3828489
3828491
3828492
3828998
TOTAL

I have considered the representations and documentation
submitted in these cases, a s well as the tes timony contained in
the record of proceedings and I conclude that the proffered
settlement · is appropriate under the criteria set forth in
section llO(i) of the Act.

WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $3692 within
3 0 days o f this order .

Law Judge
Dis tribution :
Thomas A. Grooms , Es q ,. Office of the Solic i tor , U. s. Department
of Labor , 2002 Richard J ones Road , Suite B-201 , Nashville , TN
37 215 (Certi fied Mail )
Mr. Reece Lemar , President , New Hope of Kentucky , I nc .,
Dr a we r 1 590 , Har lan , KY 40831 ( Certifi e d Ma il )
dcp

2400

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

NOV 2 91993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of PERRY PODDEY,
Complainant,

DISCRIMINATION PROCEEDING
Docket No. WEVA 93-339 -D
MORG CD 93-01

v.
Coal Bank No. 12
TANGLEWOOD ENERGY, INC.,
Respondent
DECISION
Appearances:

Heather Bupp-Habuda, Esq., Office of the
Solicitor, u. s. Department of Labor, Arlington,
Virginia; for Complainant;
Paulo . Clay , Esq . , Conrad & Clay , Fayetteville ,
West Virginia , f or Respondent .

:Before :

J udge Amchan
FINDINGS OF FACT

Procedural History
o n J anuary 12 , 1993 , Perry Poddey , an underground coal
miner , fil ed a complaint with the Mine Safety and Health
Administration (MSHA) alleging that he had been discharged by
Respondent on January 6 , 1993 , in violation of section 105(c) of
~he Federal Mine Safety and Health Act.
Pursuant to an
application filed on Mr . Poddey's behalf, I ordered that he be
temporarily reinstated by Respondent, effective May 18, 1993. On
May 28, 1993, the Secretary of Labor filed his complaint in this

24 01

matter, which was later amended to propose a civil penalty. This
matter came to hearing in Elkins, West Virginia on September 1
and 2 , 19 9 3 . 1
Factual Background
Perry Poddey began working for Respondent, Tanglewood
Energy, at Coal Bank 12, an underground mine in Randolph County,
West Virginia, in approximately December, 1990 {Tr. I: 130). His
duties primarily involved the operation and servicing of a 480
S&S scoop, which is a vehicle used to clean coal off the floor of
sections which have just been mined by a continuous mining
machine (Tr . I: 79 - 83, 153 - 157, II: 83 - 84, Photographic
Exhibits A - G). The scoop is operated lying down with the
operator's head and knees raised so that the vehicle can maneuver
in the 30 - 36 inch high coal seam of Coal Bank 12 (Tr. I: 26,
157, II: 84) •
Mr. Poddey was also responsible for supplying the roof
bolt operator with bolts, spreading rock dust, and moving the
conveyor belts {Tr. I: 79 - 83, 153 - 157, II: 83 - 84). It is
undisputed that Mr. Poddey performed his job well {Tr. I: 168,
235, 269, 288 - 290, 309, II: 15 - 16, 56, 115). On one occasion
in 1991, he was almost fired due to a disagreement with his
supervisors, but management concluded that discharge was not
warranted {Tr. I: 145 - 147, 288 - 290, II: 147 - 157, 161 163) .
There were no further difficulties between Mr. Poddey and
Tanglewood management until the late summer of 1992 when Jeff
Simmons became his section foreman {Tr. I: 122 - 123, II: 6 9). 2 Mr . Simmons had been employed by Tanglewood at another mine
since April 199 1 (Tr . II: 6 - 7 ). After he was transferred to
Coal Banl< 12, the mine shut down for a couple of months . When
production resumed, a number of the miners working for
Mr. Simmons immediately took exception to the way he ran the
section (Tr . I : 308 , 311 - 313 , II : 8, 88 - 91, 109 - 110) . In
October 1992 , the continuous miner operator , "Butch" Davis , asked
General Mine Foreman Randy Key , one of the two principals of
Tanglewood Energy , to convene a meeting in order to discuss the
miners • differences with Mr . Simmons (Tr . I : 103 - 104, 281 282 , II : 86 - 90 1 160) .
1

"Tr . I" citations are to the transcript of September 1,
1993; "Tr. II" citations are to the transcript of September 2,
1993.
2Through January, 1993, Coal Bank 12 was a one-section mine
(Tr. I: 280, II: 83). When Mr. Simmons became section foreman he
thus became responsible for all production operations at this
mine.

2402

This meeting lasted 3 hours and a number of employees voiced
their displeasure with Mr. Simmons to Key (Tr. II: 86 - 90).
Mr. Davis raised a specific work practice problem that Mr. Key
changed (Tr. II: 87 - 88). Mr. Poddey and his friend,
Lynn Moore, were particularly vocal regarding their unhappiness
with Mr. Simmons. At the conclusion of the meeting, most of the
issues were resolved and Mr. Key told the miners that they had to
work for Mr. Simmons. He invited the men to inform him of any
problems they had with Mr. Simmons in the future (Tr. II: 86 91}.
According to Mr. Poddey, he and Mr. Simmons got along for
about 2 months after the October meeting and then Mr. Simmons
started to harass him in order to retaliate for his complaints to
Mr. Key at the October meeting (Tr. II: 158 - 160}. According to
Mr. Simmons, Mr. Poddey and Mr. Moore continued to treat him
"hatefully" after the October meeting (Tr. II: 8 - 9}.
Perry Poddey's Protected Activity Regarding his Scoop's Parking
Brake
On November 3, 1992, MSHA Inspector Kenneth Tenney conducted
an inspection of Coal Bank 12, accompanied by Jeff Simmons as
management's representative (Tr. I: 23 - 24). During this
inspection, he encountered Mr. Poddey operating his 480 S&S
scoop. He spoke to Mr. Poddey about the scoop and determined
that it was not equipped with an automatic emergency-parking
brake (Tr. I: 25, 98). 3 Tenney issued a citation to Respondent
alleging a violation of 30 C.F.R. § 75.523(a) for the absence of
the emergency brake (Secretary's Exh. 1). 4
Mr . Tenney believed that the absence of the brake
c onst i tuted a h az a r d t o mi ners worki ng in the " low" coal seam .
Employ ees h ad to r egularly load suppl i es i n the bucket of the
scoop , which Mr . Tenney believed exposed them to injury if the
scoop rolled accidently (Tr. I: 25 - 26). The company had to
order the parts to install the parking brake and was completing
i nstal l at ion of the brake when Tenney returned to the mine on
Nov ember 19 , 1992 (Tr . I : 29 , 171 - 176).

3

The brake or braking system is ref erred to throughout the
t ranscript as the C.L.A. brake. C.L.A. is apparently the
manufacturer of the braking system; S&S is the manufacturer of
the scoop.
4

The requirement for an automatic emergency parking brake
became effective on May 23, 1991. The regulation was predicated
on an MSHA study indicating that 126 out of 540 fatal haulage and
machinery accidents between 1966 and 1977 may have been prevented
by such a brake. 54 Fed. Reg. 12406, 12407 (March 24, 1989}.

2 4 03

Between November 19, 1992 and January 4, 1993, the bolt, by
which the emergency brake system was affixed to Mr. Poddey's
scoop, worked itself loose on a number of occasions, rendering
the emergency brake ineffective {Tr. I: 153). Mr. Poddey
reported this problem to Doug McCoy, Respondent's principal
mechanic on the day shift, who tightened the bolt with an Allen
wrench on several occasions {Tr. I: 187). On January 4, 1993,
the bolt was loose again and the C.L.A. brake did not work at all
{Tr. I: 145). Mr. Poddey reported this to Jeff Simmons and to
Mr. McCoy. Poddey told Simmons and McCoy that he thought that a
second bolt needed to be installed in the brake assembly
{Tr. I: 177 - 178, II: 12 - 13, 144 - 146). This was reported to
the night shift, which did not fix the brake before the morning
of January 5 {Tr. I: 189 - 190, II: 13, 144 - 146). 5
On the morning of January 5, 1993, MSHA's Kenneth Tenney
conducted another inspection of Coal Bank 12 {Tr. I: 31). 6 When
Tenney encountered Mr. Poddey and his scoop, the inspector, in
the presence of Mr. Simmons, asked Poddey to test the emergency
brake {Tr. I: 32 - 33, 92 - 94, II: 13 - 14). When Poddey did
so, the scoop drifted {Tr. I: 33). Poddey informed Tenney that
the bolt holding the brake assembly was loose, that he'd reported
it several days previously, and that it had not been fixed
(Tr . I : 33, 92 - 97) . 7 Mr. Poddey showed the inspector where a
second bolt was needed to maintain the brake's effectiveness
{Tr. I: 97). Inspector Tenney then issued another citation to
Respondent for the automatic emergency-parking brake on
Mr. Poddey's scoop (Secretary's Exhibit 2).
After the conclusion of the day shift on January 5,
Mr . Simmons i nsta l led the second bolt in the maintenance shop at
~ne mine es surface (Tr. II : 14 - 15 ) .
I n order to install the
bo ltu Mr . S immons burned a ho l e in the metal of the brake
a ssembly wit h a cutting t orch . Mr . Simmons testified that this
j ob took him 15 minutes to complete {Tr. II: 14 - 15) .
Mr . McCoy , however , believes this task would have taken

5

The night or 81 Hoot Owl'' shift only consisted of maintenance
p ersonnel . Coal was mi ned only by the day shift .
6This inspection apparently was not made pursuant to a
miner ' s complaint and thus was not expected by either Mr. Poddey
or Tanglewood management.
7Mr.

Poddey may have discussed the need for a second bolt
with Mr. McCoy a day or two prior to January 4 {Tr. I: 189, II:
144 - 146). I find it necessary only to find that he mentioned
it both to Mr. McCoy and to Mr. Simmons before he left work on
January 4.

2 404

45 minutes to an hour to accomplish (Tr. II: 140 - 141) • 8
On the evening of January 5, 1993, Mr. Simmons called
Randy Key, his immediate supervisor (Tr. II: 16 - 17). They
discussed the MSHA inspection, as well as other matters. When
informed of the citation issued for the emergency brake, Mr. Key
was upset and wanted to know why it hadn't been fixed (Tr. II:
(17 - 18, 29 - 33).
Mr. Simmons said that Mr. Poddey told him about the brake
problem the day before the citation for the first time, although
he had apparently reported it to others. Simmons explained to
Key that he had left written instructions for the night ("hoot
owl") shift to install the bolt. He then told Mr. Key that the
bolt had not been installed and that Poddey had not told Simmons
on the morning of January 5, that the emergency brake had not
been repaired (Tr. II: 17 - 18, 96).
Simmons also told Key that Mr. Poddey had a month in which
he had the opportunity to fix the problem himself and had not
(Tr. II: 30 - 32). Mr. Key asked Mr. Simmons to have Mr. Poddey
call him at the beginning of the next workday.
The Telephone Calls and Confrontation of January 6
Almost immediately upon arriving at work on January 6, 1993,
Perry Poddey talked to Mine Superintendent Randy Key on the
telephone. According to Key, he told Poddey that he was upset
about getting a citation for the emergency brake and asked him
why he didn't install the second bolt himself (Tr. II: 97 - 99,
102) . Key then told Poddey that it was his responsibility to
i nstall the bolt (Tr . I I : 97 - 99 , 102) . According to Poddey ,
~ o Ke y a l so t old him he was tired of receiving MSHA fines and
~hat if Poddey d idn 9 t stop complaining to MSHA , Key would find
h imself another scoop operator (Tr. I : 113 - 115).

gl decl i ne t o make any specific finding as to how l ong i t
t ook t o perform this work other than it took between 15 minutes
t o an hour . Obviously Mr . McCoy could not have known how long
t he repair actually took since he was not present when
Mr . Simmons did the work, although he assessed the time it would
t ake him to do the work when Mr. Poddey raised the need for the
additional bolt .
It is important to note that Mr. McCoy did not take issue
with Mr. Si~ons, as he was unaware o~ Mr. Simmons' testimony.
However, I don't know how Mr. Simmons can be so sure that the
repair took 15 minutes as opposed to 30 minutes or 45 minutes.
There was no reason for him to keep track of the time that it
took to install the second bolt. I regard this testimony to be
in the nature of an educated guess.

2405

Mr. Key denies thre atening or criticizing Poddey for talking
to the MSHA inspector (Tr. II: 99). For reasons explained below,
I find that Key did chastise Mr. Poddey for complaining to MSHA.
Although it is not certain what was said, it is likely that
Mr. Key said something to indicate his displeasure about Mr.
Poddey complaining to MSHA about something Key believed Poddey
should have fixed himself.
After Mr. Poddey hung up the phone, he was visibly upset and
started yelling at Mr. Simmons, who at times was 6 inches to
2 feet from him (Tr. I: 116 - 117, 263 - 264, Tr. II: 18 - 21). 9
The testimony of Mr. Poddey , Mr. Simmons, and other miners who
witnessed this exchange are fairly consistent. Poddey said he
told Simmons that he d i dn't appreciate him telling lies about him
(Tr. I: 116 - 117). Simmons recalled Poddey accusing him of
telling Key that Poddey had "deliberately" told MSHA about the
emergency brake (Tr. II: 19); Simmons responded to Poddey by
saying he had not done so (Tr . II: 19 - 20) • 10 "Butch" Davis
recalled Poddey telling Simmons that he didn't appreciate him
telling Key that he had talked to MSHA (Tr. I: 263 - 264).
Doug McCoy rec alled Poddey blaming Simmons for accusing him
of reporting the problems with the scoop emergency brake to an
inspector (Tr. I: 184 - 185). Lynn Moore testified that
Mr. Poddey denied volunteering information to MSHA, when talking
to Randy Key and to Mr. Simmons (Tr . I: 202, 219). In light of
these accounts of what clearly seems to have been a spontaneous
and impulsive outburst, I think it very unlikely that Mr. Key did
not take Mr. · Poddey to task for bringing the automatic-emergency
parking brake to MSHA's attention--although Key may have
sincerely bel i eved that there would have been no violation if
Poddey had c arried out h i s responsibilities .
Mr . Poddey stood very close to Mr. Simmons, yelling at him
and apparently shook his finger close to Mr. Simmons' face
(Tr . I: 2 7 3 - 2 74 ) . Towards the end of the confrontation, Poddey
told Simmons t hat if he (Si mmons) had a problem with him (P9ddey)
t hey should settle it " outside the gate" (Tr. I : 116 , Tr . II :
19). Simmons testified that he interpreted the last remark as an

9

The mi ne off i c e in which this confrontation took place was
r ather small and filled with furniture and people. Thus, when
Mr . Poddey began yelling at Mr . Simmons, he was, by necessity
fairly close to him (Tr. I: 328 - 329, II : 35 - 37).
1

°By "deliberately" telling MSHA about the brake, I assume
that Poddey was accusing Simmons of telling Key that Poddey had,
in bad faith, gone out of his way to point out an MSHA violation
which was Poddey's fault.

2406

invitation to fight and thought a fight might start right there
in the office (Tr. II: 20 - 21). 11
Mr. Simmons immediately called Mr. Key and told Key that
Mr. Poddey "wanted to take him to the gate", or that Poddey
"wanted to whip him" (Tr. II: 21, 99 - 100) • 12 "Butch" Davis got
on the phone and asked Mr. Key to come to the mine to resolve the
dispute (Tr. I: 118). The incident, including the phone calls,
lasted 10 to 15 minutes, after which the day shift crew went to
work (Tr. I: 181 - 182, 202, 322 - 323, II: 21 - 23).
Shortly thereafter Mr. Key called his partner, Randy Burke,
and the two decided to discharge Mr. Poddey for threatening
Mr . Simmons (Tr. II: 101) • 13 Mr. Key drove to Coal Bank 12 and,
at the conclusion of the day shift on January 6, called Poddey,
Lynn Moore, and Jeff Simmons into the mine office and fired
Poddey and Moore (Tr. II: 23, 103 - 104). After being
discharged, Mr. Poddey expressed a desire to "whip" Simmons and
even to kill him, which was heard by some of his co-workers, but
not by Simmons (Tr. I: 274, 305) • 14
By the time of the hearing in this matter, Mr. Poddey had
been working for over 3 months for Respondent pursuant to my
11

Mr. Poddey denies that his statement conveyed an invitation
to fight off the premises. Doug McCoy testified that the
statement does not necessarily constitute such a challenge.
Witness Doy Carpenter interpreted the remark as an invitation to
fight.
I find that the remark was an invitation to fight at an
u nspecified time--unless Mr. Simmons stopped trying to get him in
~rouble .
As Mr . Key observed , i f all Mr . Poddey wanted was a
d iscussion or argument , h e and Mr . Simmons were having one in the
mine o ff i c e (Tr . I I : 1 00 - 1 01 )
Both Mr . Poddey and Mr. Simmons appeared to be in their
early thirties. Mr. Simmons is 5 1 6 11 tall and weighs 175 lbs.
Mr . Poddey is 6 ' tall and weighs 175 lbs .
12Mr .

Ke y may h ave regarded "taking him to the gate'' as
essentially the same thing as a threat to beat up Mr. Simmons off
t he company premises.
13

They a l so decided to fire Mr . Poddey's friend and coworker , Lynn Moore, for threatening to strike. on the morning of
January 6 , at the conclusion of the confrontation between Poddey
and Simmons, the latter told the day shift to go to work. Moore
said something like, "maybe there isn't going to be any work
today."
14

Simmons made no mention of such threats in his testimony at
hearing and I, therefore, conclude that they were not made in his
presence (Tr. II: 23).

2407

May 25, 1993 Order of Temporary Reinstatement. During this
period, he has been working for foreman Roger Sharp without
incident (Tr . I: 113, 123).
ISSUES OF LAW

Did Responde nt Violate Section 105Ccl of the Act?
Section 105(c} (1) of the Federal Mine Safety and Health Act
provides that:
No person shall discharge or in any manner
discrimi nate against or cause to be discharged
or cause discr i mi nation against or otherwise
interfere with the exercise of the statutory
rights of any . • . miner because such miner
. • • has filed or made a complaint under or
related to this Act, including a complaint
notifying the operator Qr the operator's agent
• • • of an alleged danger or safety or health
violation . • . or because such miner • • • has
instituted or caused to be instituted
any proceeding under or related to
this Act • • • or because of the exercise by such
miner . • . of any statutory right afforded by
this Act.
The Federal Mine Safety and Health Review Commission has
enunciated the general principles for analyzing discrimination
cases under the Mine Act in Sec . ex rel. Pasula v. Consolidation
Coal Co. , 2 FMSHRC 2786 (October 1980}, rev'd on other grounds
s ub nom . Consolidati on Coa l Co . v. Marshall , 663 F . 2d 1211 (3d
Cir . 198 1 ) , a nd Sec . e x rel . Robi nette v . United Castle Coa l Co . ,
3 FMSHRC 803 (April 1981 ). I n these cases , the Commi ssion held
t hat a complai nant establishes a prima facie case of
discrimination by showing 1) that he engaged in protected
activity and 2 ) that an adverse action was motivated in part by
t he protected acti v i t y .
The operator may rebut the pri ma facie case by showing
e ither that no protected a c tivity occurred , or that the adverse
a ction was i n no part motivated by the protected activity . If
t he operator cannot thus rebut the prima facie case , it may still
d efend itself by provi ng that it was motivated in part by the
miner's unprotected activiti es, and that it would have taken the
adverse action for the unprotected activities alone.
In the instant case, there is no controversy regarding the
fact that Perry Poddey engaged in protected activity. He engaged
in such activity when he reported the malfunction of the
automatic emergency-parking (C.L.A . ) brake to Respondent's
mechanic McCoy, when he reported it to Simmons prior to the

24 0 8

inspection, and when he discussed the problem with the brake and
the need for a second bolt with MSHA inspector Tenney on
January 5, 1993. Similarly, there is no question that the timing
of Mr. Poddey's discharge, a day after his discussions with
inspector Tenney, creates an inference that his discharge was
motivated in part by his protected activity. Donovan v. Stafford
Construction Co., 732 F.2d 954 (D.C. Cir. 1984). Thus,
Complainant has clearly made out a prima facie case that
Respondent violated section 105(c) in discharging Mr. Poddey on
January 6, 1993.
The first of the difficult issues in this case is whether
Respondent has rebutted the prima facie case by showing that it
was in no part motivated by Poddey's protected activity. I find
that Respondent fired Perry Poddey for what it perceived to . be a
threat to Foreman Simmons, or at least insubordinate behavior
towards Mr. Simmons. A simplistic resolution of this case would
be to hold that Respondent has, therefore, rebutted the
Secretary's prima facie case and, thus, did not violate
section 105(c) in discharging Mr. Poddey.
However, I think this case is more complicated and that a
fair resolution, and one that comports with the purposes of
section lOS(c), requires an inquiry as to whether Poddey•s
insubordination and protected activity are so intertwined that
his discharge violates the Act. See Pogue v. u. s. Department
of Labor, 940 F.2d 1287 (9th cir. 1991). It also requires an
inquiry as to whether Mr. Poddey•s conduct during the January 6,
1993 confrontation with Simmons, and/or afterwards, was such that
he forfeited whatever rights he had under the Act Precision
Window Manufacturing co. v . N.L.R.B., 963 F.2d 1105 (8th cir •
.1992 ).
In analyzing the i nstant case , I f ind most helpful the
f o l lowing discussion by Judge Levin Campbell of the United States
Court of Appeals for the First Circuit of a case under the
National Labor Relations Act:
A case of t his nature requires balancing the
employer 9 s right to run its office as it pleases
against the employees' right to act in concert
without fear of retaliation. • • on the one hand,
section 7 rights are "not a sword with which one
may threaten or curse supervisors" . • • On the other
hand , if an employee's conduct is not egregious
there is "some leeway for impulsive behavior" • • •
And the leeway is greater when the employee's
behavior takes place in response to the employer's
wrongful provocation • . • Trustees of Boston University v.
N.L.R.B., 548 F.2d 391, 393 (1st Cir. 1977).

2409

Perry Poddey was clearly acting in good faith when he
reported the condition of his brakes to Mr. McCoy and to
Mr. Simmons . While one can understand why Mr . Simmons and
Mr. Key were upset at getting a second MSHA citation on account
of the C.L . A. brake on Mr. Poddey's scoop, I find that they were
not justified in blaming him for not repairing the brake himself
and that, in so doing, they did "wrongfully provoke" the outburst
on January 6, 1993. While Mr. Poddey's behavior would certainly
justify discharge in the absence of his protected activity, I
find that it was not of such a nature that it forfeited his
rights under the Mine Act.
Possibly the most critical issue in this case is whether
Mr. Poddey was at fault for not repairing the C.L.A. brake. If
Respondent was correct that he was, Mr. Simmons and Mr. Key were
perfectly justified in blaming him for the January 5, 1993
citation and Mr. Poddey was totally unjustified in exploding at
Mr . Simmons on January 6.
If, on the other hand, Mr. Poddey was
not at fault for not repairing the brake, it is at least
understandable why he turned on Mr. Simmons and greater leeway
should be given to his impulsive behavior.
I find that, although Mr . Poddey ma y have been capable of
i nstalling a second bolt in the emergency brake assembly, it was
not his responsibility to do so. Probably the most important
evidence in this regard is the testimony of Mr. Simmons. When
Mr. Poddey complained to him about the brake on January 4, 1993,
Mr. Simmons did not tell Mr. Poddey to fix it himself, he
reported it to the night shift (Tr . I: 189 - 190, II: 13, 96,
Also see Tr. I: 111 - 112, 183). I regard this as establishing
t hat Mr o Simmons did not consider installation of the bolt to be
p art of Mr o Poddey 8 s responsibilities . I t i s also noteworthy
that Mr o Simmons d i d n ot order Mr o Poddey t o i nstall the bolt
aft er the MSHA citation was i ssued ; he performed the installation
h imself {Tr . II : 1 4 - 15) .
Mr o Poddey' s contention that repairing the scoop was not his
~esponsi bil ity is a lso borne out by other witnesses . 1s
Terry Bennett , who replaced him as scoop operator , testified that
h e d i d no repa i rs on the vehicle; instead he filled out a report
for the maintenance crew on the night shift (Tr. I: 161 - 162) .
Doug McCoy 's testimony also supports Mr. Poddey's position that
r epairs , as opposed to maintenance and servicing (greasing and
oiling the scoop) , were performed either by Mr. Mccoy or the
1

5Mr. Poddey testified that he performed whatever repairs to
his scoop that his foreman allowed him (or allowed him time) to
do. He contends that after Mr. Simmons became his foreman, he
was given additional duties, particularly with regard to belt
moves, and was not allowed, or had insufficient time to do any
repairs on his vehicle (Tr. I: 101 - 102, 108 - 109, 132 - 135).

2410

night crew, not by the scoop operator (Tr. I: 176, 189 - 190).
The testimony of Sam Knotts, still an employee of Respondent,
also supports the conclusion that repairs such as installation of
the second bolt would be made on the night shift, not by the
production personnel on the day shift (Tr. I: 251, 256).
Respondent contends that Mr. Poddey was obligated to do a
pre-shift examination and that he failed to do so--as evidenced
by the fact that he did not tell Mr. Simmons, on January 5, that
the night shift had not installed the second bolt. However, the
record does not establish that Mr. Poddey failed to do a preshift examination because one cannot draw such a conclusion
simply from the fact that he didn't bring the absence of a second
bolt to Mr. Simmons' attention (Tr. I: 139, II: 26) . It may be
that he believed reporting the condition to his supervisor once
was sufficient or that he would wait for a few days before
raising the subject again.
Moreover, as mechanic Doug McCoy testified, it is not clear
that a preshift examination, as performed at Coal Bank 12 in
January, 1993, would have alerted Poddey to the fact that the
second bolt had not been installed (Tr. I: 190). McCoy testified
that he believes he tightened the single bolt on the brake
assembly when Poddey complained to him on January 4 (Tr. I: 189).
It is possible that the C.L.A. brake was operational at the start
of the shift on January 5, and worked itself loose by 12:35 p.m.,
when inspector Tenney cited it (Tr. I: 190, Secretary's exhibit
3). It is also important to note that Mr. Poddey's preshift
examination would normally be performed at the underground
c harging station with only the light from his cap lamp (Tr . I:
140 - 141, 14 9 ).
If Mr . Poddey was not to blame for failing to fix the brake
a nd the January 5 citation, his anger at having the blame placed
upon him by Mr. Simmons and Mr. Key is understandable. I draw no
conclusions as to who was responsible or most responsible for the
pre-existi ng animosity between Mr . Poddey and Mr . Simmons . I do
n ot i mpute v enality to Mr . Simmons in blaming Mr . Poddey for the
citation . Given the friction between Simmons and Poddey,
Simmons ' understandable frustration at receiving a citation for a
c onditi on he could reasonably have thought was corrected, and
h aving to respond to his supervisor's inquiries, I can feel some
e mpathy for Mr . Simmons ' placing responsibility for the citation
on Mr . Poddey .
Nevertheless, I conclude that, since installation of the
bolt was not Mr. Poddey's responsibility, it was a violation of
section 105(c) for Mr. Key, after talking to Mr. Simmons, to
reprimand Mr. Poddey for causing the citation on January 6.
Having found that Mr. Key did to some extent castigate Mr. Poddey
for his discussions with Inspector Tenney, I conclude that
Respondent violated the Act in so doing. Unjustifiably placing

2411

the blame for a citation on an employee, whose discussions with
MSHA contribute to the issuance of the citation, constitutes
interference with a miner's rights under the Mine Safety and
Health Act.
Indeed, it would be completely contrary to the purposes of
the Act to allow an employer to place the blame for a citation on
the miner who brings it to MSHA's attention, and reprimand him
for it--unless the employer is clearly correct . 16 To hold
otherwise, would greatly inhibit MSHA's ability to gather
information from miners. No miner, even one acting in good
faith, would bring health and safety conditions to MSHA's
attention if they thought it likely that they would be deemed at
fault and subjected to disciplinary action. When an employer
lays responsibility for an unsafe condition on an employee who
exercises statutory rights in bringing it to MSHA's attention,
the employer should be absolved of a section lOS(c) violation
onl~ if, from an objective standpoint, it is justified in doing
so.
.
Did Mr. Poddey's Conduct Forfeit his Protection by the Act?
Having found that Mr . Poddey was justifiably angry at being
accused of causing the January 5, 1993 citation and being too
forthcoming with MSHA under the circumstances, did he forfeit his
protection by yelling in Mr. Simmons• face and suggesting that
they take their mutual dislike for each other "outside the gate?"
If the answer to this question is negative, there is still an
issue of whether Mr. Poddey forfeited his rights under the Act by
telling other miners that he was going to "whip" Mr. Simmons or
t hat he would kill or like to kill him.
There i s c onsi derable case l aw f or the proposi tion that an
emp l oyee whose i nstantaneous insubordination is provoked by his
empl oyer ' s retaliatory conduct does not automatically forfeit his
r ights to "whistleblower" protection. NLRB v. Mueller Brass Co.,
Msenate Report 95-181 i ndicates that assuring miner
i nvolvement in reporting safety and health violations was one of
t he primary reasons for including section lOS{c) in the 1977 Act .
The Senate Committee stated that it, "intends S [lOS{c)) to be
c onstrued expansively to assure that miners will not be inhibited
i n any way in exercising any rights afforded by the legislation."
Legislative History, p. 624 .
17

If the violation was clearly the fault of the employee who
brought it to MSHA's attention, there might be an issue of
whether the employee's protected activity was pursued in good
faith. In such a situation, although a reprimand might be a
provocation, it would not be a "wrongful provocation" in Judge
Campbell's parlance.

241 2

501 F.2d. 680 (5th Cir. 1974); ~ v. M & B Headware, 349 F. 2d
170 (4th cir. 1965); Crown Central Petroleum v. NLRB, 430 F.2d
724, 729-31 (5th cir. 1970); Trustees of Boston University v. !L.
L. R. B., 548 F.2d 391 (1st Cir. 1977); .H.LBJi v. Steinerfilm .
.In£.s.., 669 F.2d (1st Cir. 1982); Poque v. Department of Labor, 940
F.2d 1287 (9th Cir. 1991); NLRB v. Florida Medical Center, 576
F.2d 666 (5th Cir. 1978)Lewis Grocer Co., v. Holloway, 874 F.2d
1008 (5th Cir. 1989); NLRB v. Vought Corp.- MLRS Systems
Division, 788 F.2d 1378, 1384 (8th Cir. 1986).
On the other hand, there is case law supporting the
proposition that, at some point, the employee's insubordinate
reaction will cost him his statutory protection. Dunham v.
Brock, 794 F.2d 1037 (5th Cir. 1986)# Precision Window
Manufacturing v. NLRB, 963 F.2d 1105 (8th Cir. 1992); General
Teamsters Local No. 162 v. NLRB, 782 F.2d 839 (9th Cir. 1989);
NLRB v. Soft Water Laundry. Inc., 346 F.2d 930 (5th Cir. 1965).
It is important, in this case, to look very carefully at
what Mr. Poddey said and did. Mr. Poddey's behavior was
spontaneous and impulsive and I conclude from the case law cited
above that his conduct in angrily yelling at Mr. Simmons after
talking to Mr. Key would not forfeit his rights under
section 105 (c) of the Act. 18 The next issue is whether he
forfeited these rights by telling Mr. Simmons that if he had a
problem with him, they should take it outside the gate.
I find that this statement, in the context in which it
occurred, did not forfeit Mr. Poddey's statutory rights to
protection from retaliation under section 105(c).
Mr. Poddey
d id not hit Mr . Simmons and did not even threaten to hit him. He
d id not threaten Simmons that he would beat him up later . I find
t hat Mr . Poddey was clearly inviting Mr . Simmons to fight him off
~he premises at some unspecified time in the future, unless, as
Poddey believed, Mr. Simmons stopped trying to get him in trouble
with Mr. Key. What is critical is that Mr. Poddey never followed
up on this invitation . 19
11Mr .

Key test_ified that Mr . Simmons did not place
r esponsibility for the missing bolt on Poddey , he (Key) did so.
However , Simmons ' testimony , which I credit, is that he (Simmons)
d id , in talking to Key, blame Poddey for not repairing the brake
(Tr . II , 30 - 33) .
19

The fact that Mr. Poddey never acted upon his invitation to
Simmons to settle their differences outside the gate
distinguishes this case from the situation described in Precision
Window Manufacturing v. NLRB, 963 F.2d 1105 (8th Cir. 1992). In
that case, the discharged employee threatened to kill his
supervisor and then returned to the plant. He left the
employer's premises pursuant to police orders.

2413

Similarly, I find that the remarks made by Mr. Poddey after
he was fired, expressing a desire to kill Mr. Simmons, did not
forfeit his rights under the Act. These were also made
impulsively and not to Mr. Simmons. As with his invitation to
take their problems outside the gate, Mr. Poddey never acted upon
these statements and, indeed, there is no indication that he ever
repeated them after the initial shock of his discharge.w
The instant case bears a striking similarity to that
described in NLRB v. Steinerfilm. Inc., 669 F.2d 845 (1st Cir.
1982). In that case, an employee named Gazaille, who had engaged
in activity protected by the National Labor Relations Act,
received a written reprimand, which the Board found unjustified
and motivated by his protected activity. Gazaille responded to
the reprimand by getting into a heated argument with his plant
manager during which he used some offensive and abusive language.
During this argument Gazaille offered to "settle things with [the
plant manager) out in the cornfield."
Gazaille was fired for his conduct during this argument and
his "threat" to the plant manager.
The NLRB found that
Gazaille's insubordination was an excusable reaction to the
unjustified warning he had just received and that no physical
threat was made. The Court of Appeals for the First Circuit, in
enforcing the Board's order of reinstatement and back pay, found
that the Board's conclusions were reasonable.
While fully understanding how Mr. Simmons and Mr. Key,
without any venal motive, could react as they did to the
January 5 citation, I conclude, as did the NLRB in Steinerfilm,
t hat Mr . Poddey•s reaction to the reprimands he received and to
h is discharge were excusable , and that , therefore , Respondent has
f ailed to rebut t he Secretary 9 s prima facie case. Similarly ,
given the i nextricable relationship between the events leading to
Mr . Poddey ' s discharge and his protected activity, I find that
Respondent has failed to meet its burden of establishing that
Mr . Poddey would have been fired even in the absence of his
p rotected activity . Thus , X conclude that Respondent violated
$ 105 (c) of t he Act in discharging Perry Poddey on January 6 ,
!.993 .
The civil Penalty
The Secretary has proposed a Civil Penalty of between $2,500
t o $3,000 for Respondent's violation of section 105(c). I assess
a civil penalty of $100. Applying the criteria set forth in

2<lirhe record indicates that Mr. Poddey was surprised when
Mr. Key fired him and may have expected Key to fire Simmons
(Tr. I: 187, 282, II: 23, 104 ).

2414

section 110(i) of the Act, I note that Respondent is a small
employer with a relatively large number of previous violations of
the Act. However, I find that a $100 penalty is appropriate
using the criteria of gravity and negligence (which I view as a
determination of fault in the discrimination context). Although
I find that Mr. Simmons and Mr. Key unjustifiably placed blame on
Mr. Poddey for the January 6, 1993 citation and that they
provoked the outburst that led to Mr. Poddey's discharge, I find
no evidence that they did so with the intention of generally
discouraging safety complaints or cooperation with MSHA.
There is no evidence in the record that Respondent had, on
any previous occasions, retaliated against employees for
exercising their rights under the Act, or tried to inhibit them
from so doing. Moreover, there is no indication that Respondent
would have so retaliated but for the unusual circumstances of
this case. Mr. Simmons' conduct appears to be motivated by the
natural desire to avoid being saddled with responsibility for the
citation, which he thought was -not his fault, and the longstanding animosity between himself and Mr. Poddey.
Mr. Key's conduct was also an understandable reaction to
being cited for a condition he thought had been corrected, his
understanding of the reason for the violation gained from
Mr. Simmons, and his reaction to the behavior of Mr. Poddey
towards Mr. Simmons. While I do not find sufficient evidence to
conclude that either Mr. Simmons or Mr. Key sought to inhibit
employees in exercising their rights under the Act, I believe
Mr. Poddey•s discharge does tend to do just that (See Tr. 39 40 , 51 - 52). For that reason, I believe a $100 penalty is
warranted .
ORDER

1 . My order of May 18, 1993, requiring Respondent to
r einstate Perry Poddey to the position from which he was
discharged on January 6 , 1993 , or to an equivalent position , at
t he same r ate of pay u and with the same or equivalent duties ,
r emains i n eff ect .
: note that good faith compliance with this order may
r equire some effort on the part of Respondent and its agents , as
wel l as Mr . Poddey . Respondent and it agents must not try to
subtly settle any scores with Mr. Poddey, or in any way
discourage, inhibit or interfere with Mr. Poddey's right to raise
good faith safety and health complaints with management, with
MSHA, or with state or local safety and health officials. on the
other hand, Mr. Poddey is reinstated with the admonition that he
will be expected to conduct himself with due respect to
Respondent's supervisory personnel, particularly Mr. Simmons. He
must recognize that Respondent has a right to choose its
supervisory personnel and that these supex-Visors have, with

2415

narrow exceptions provided by law, wide latitude as to what they
may demand of an employee.
2. Respondent IS ORDERED to pay Mr. Poddey full backpay and
benefits with interest, less the payments he received in
unemployment compensation.
Clifford Me ek v. Essroc Corporation,
15 FMSHRC 606 (April 1993). Interest should be computed in
accordance with the short-term Federal rate applicable to the
underpayment of taxes.
Clinchfield Coal co., 10 FMSHRC 1493
(November 1988).
3. Respondent IS ORDERED to expunge from Mr. Poddey's
personnel file and/or company records all references to the
circumstances surrounding his employment termination of January
6, 1993.
4. Respondent IS ORDERED to pay a civil penalty assessment
of $100 for its v i olation of section 105 (c) of the Act.
5. Respondent IS ORDERED to inform all its employees
verbally and by posting a legible notice in a prominent place at
all its properties that miners have a right under the Federal
Mine Safety and Health Act to bring to the attention of
management, the Mine Safety and Health Administration, and state
and local safety officials, any concerns they have with regard to
safety and health conditions in their employment. In so
informing its employees, Respondent is also ORDERED to inform
them that such activities are protected by section 105(c) of the
Federal Mine Safety and Health Act.
6 . Counsel are directed to confer and file a stipulation or
a greement with me within 15 days regarding the amount due
Mr . Poddey . In t he event that counsel cannot agree on the
s pecific do llar amounts due , they are to notify me within 15 days
of this decision and shall submit their separate proposals, with
supporting arguments, within 30 days of this decision. I retain
j urisdiction in this matter until the remedial aspects of this
c ase are r esol ved .

Qa~cl~

Administrative Law Judge

2416

Distribution:
Heather Bupp-HaBuda, Esq., Office of the Solicitor, u. s.
Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)
Paulo. Clay, Jr., Esq., Conrad and Clay, P. o.
Drawer 958, Fayetteville, WV 25840 (Certified Mail)
/jf

2417

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

NOV 3 0 1993
:

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 93-109
A. C. No. 36-07903-03517

v.

Heather Mine

BUCKET COAL COMPANY,
Respondent
DECISION
Appearances:

Maureen A. Russo, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, PA for the
Petitioner;
Andrew Drebitko, President, Bucket Coal Company,
Minersville, PA for the Respondent.

Before :

Judge Weisberger

This case i s before me based upon a petition for
Assessment of Civil Penalty fil ed the Secretary (Petitioner)
al l eging ~ v iolation by the Operator (Respondent ) of 30 C.F.R .
§ 70.207(a) .
Also at issue is the validity of a subsequently
issued order under Section l04(b) of the Federal Mine Safety and
Health Act of 1977 ( "the Act") . Subsequent to notice, the case
was heard in Harrisburg , PA on October 13 u 1993 . Leonard W.
Rogers ! Jr .r and Thomas J. Garcia , testified for Petitioner .
Andrew Drebitko , testified for Respondent . The parties waived
the right to file a written brief , and instead presented oral
a rguments at the conclusion of the hearing .
Findings of Fact and Discussion
Leonard w. Rogers, Jr., an MSHA inspector, testified, in
essence, that a computer generates a non-compliance notice when
dust samples required by 30 C.F.R. § 70.207(a) are not received
by MSHA. On May 11, 1992, Rogers issued to Respondent a citation
which alleges a violation of Section 70.207(a) supra in that "The
mine operator did not collect and submit five valid respirable

2 418

dust samples for the bimonthly period of March/April, 1992 on
mechanized mining unit 0001-1 for the designated occupation 039
(hand loader) as shown in the attached advisory, dated 5/8/92."
Section 70.207{a) supra, as pertinent, requires the taking of
five respirable dust samples in each mechanized mining unit
during each bi-monthly period. It is further provided that the
samples shall be collected on "consecutive normal production
shifts or normal production shifts each of which is worked on
consecutive days." 30 C.F.R. § 70.2(1) states that "production
shifts" means "(l) with regard to a mechanized mining unit, a
shift during which material is produced, or (2) with regard to a
designated area of a mine, a shift during which material is
produced and routine day-to-day activities are occurring in the
designated area."
Tom J. Garcia, a supervisor at the MSHA Shamokin Field
Offic e, test i fied that, for the period at issue, the subject mine
was classified by MSHA as being in an A-A status. He said this
means that it was in a production status. Garcia said that a
mine remains classified in an A-A status until the operator
notifies MSHA that it is no longer producing coal. There is no
evidence that the operator had notified MSHA that it was no
longer producing coal during the period when it was in an A-A
status between July 9, 1991 and November 1, 1992.
Andrew Drebitko testified that the mine was flooded on
February 24, 1992, and that the mine was not producing coal until
it went back to a partially active status on July 28, 1992. He
said that from February, 1992, until June or July, aside from
s omebody helping him to move pumps , he was the only one at the
mi ne moving machinery and equipment . There is no evidence that
he or a nyone else representing the operator notified MSHA that
~he mi ne was not producing coal in April and May, 1992.
The clear language of the Section 70.207{a) mandates
dust s amples i n mechanized mining units are to be collected
on ov normal producti on shifts oco As defined by Section 7 0 . 2 (1 )
a upra" a. production shift i s a shift "during which material is
produced . 00 I g i ve more weight to the testimony of Drebitko based
on his personal knowledge , as opposed to the testimony of Garcia
based on an MSHA record , that was not offered in evidence ,
r egardi ng Respondent's status during the period in question .
Hence based upon Drebitko's uncontradicted testimony, I find that
i t has not been established that in April and May, 1992
Respondent was in production and bad "production shifts."
~hat

Further, I note that pursuant to Section 70.207{a) the
obligation to collect dust samples is limited to "normal"
production shifts. A "normal production shift", according to
30 C.F.R. § 70.2(k) means "(l) a production shift during which

2 4 19

the amount of material produced in a mechanized mining unit
is at least sot of the average production reported for the last
set of five valid samples; • • • • " There is no evidence that
there was production in the period in question of "at least 50%
of the average production reported for last set of five valid
samples."
For these reasons, I conclude that it has not been
established that Respondent violated Section 70.207(a) as
alleged. I further find that the Section 104(b) Order issued by
Garcia on August 27, 1992 for failure to abate the initial
citation is to be vacated.
ORDER
IT IS ORDERED that Citation No. 98500040, and Order No.
3080318 are to be dismissed. It is further ordered that this
case be Dismissed.

Judge
Distribution:
Maureen A. Russo , Esq. , Office of the Solicitor, U.S. Department
of Labor q Room 14 480 , Gateway Building, 3535 Market Street ,
Philadelphia , PA 19104 (Certified Mail )
Andrew J. Drebitko, President, Bucket Coal Company, 14 North
Third Street, Minersville, PA 17954 (Certified Mail)
/ efw

2420

ADMIN1STRATIVE LAW JUDGE ORDERS

PBDBRAL KDIB SAFETY ARD BRAT.TB RBVIBW cc•.-rss:rOH
OFFICE Of ADMINISTRATIVE LAW JUOGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

NOV 1 9 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

SOUTHMOUNTAIN COAL COMPANY,
INCORPORATED,
Respondent

. CIVIL PENALTY PROCEEDINGS
.
No. VA 93-165
. Docket
A.C. No. 44-06594-03522
.

.: Docket No. VA 93-166
:

A.c. No. 44-06594-03523

:

No. 3 Mine

DECISION DENIIHG MQTION TO DISMISS
Respondent Southmountain Coal Company, Incorporated
(Southmountain) has moved for dismissal of the captioned
cases on the grounds that the petitions for assessment of
penalties were filed four days late. It is undisputed that
Respondent hand delivered its notices of contest ("blue card")
of the Secretary's notification of proposed assessments of
penalty to the Secretary on September 10, 1993. It is further
undisputed that the "blue card" was stamped "received" by an
agent of the Secretary on September 10, 1993.
Commission Rule 28(a) provides, in relevant part, as
follows:
~ ime ~o

File o Within 45 days of receipt of a
\:imel y contest of a proposed penalty assessment 6
~he Secretary shall file with the Commission
a petition for assessment of penalty.
Within the f ramework of this rule the petitions for penalties
herein were due to be filed with this Commission by October 25 t
: 99 3 0 :t i s not disputed that the Secretary filed such
petitions on October 29 , 1993 , four days beyond the 45-day
deadline in Commission Rule 28(a ) . Southmountain argues that,
a ccordingly , under applicable Commission decisions , these cases
must be dismissed.
More particularly, Southmountain cites the Commission's
test for determining whether a late filing requires
dismissal -- the initial test requiring the Secretary to show
adequate cause to support his late filing and the second test,
applicable despite an adequate showing of cause by the Secretary,
when an operator demonstrates prejudice caused by the filing
delay. Salt Lake county Road Department, 3 FMSHRC 1714 (1981);
~wo-tier

2421

Medicine Bow Coal Company, 4 FMSHRC 882 (1982); Bbone-Poulenc
of Wyoming Company, 15 FMSHRC
, WEST 92-519-M (October 13,
1993).
In his Response in Opposition to the Motion to Dismiss the
Secretary states, as reasons for the late filing, the following:
1.
On September 10, 1993, Southmountain filed
its 'blue card' with MSHA's Civil Penalty Assessment
Off ice contesting penalties proposed by the Secretary
in docket numbers VA 93-165 and VA 93-166.
2.
All 20 violations being assessed by the
Secretary in this case are the subject of earlier
filed notices of contest filed by Southmountain ~d
William Ridley Elkins. The contest proceeding is
presently pending before Administrative Law Judge
Gary Melick. Southmountain Coal. Inc. and William
Ridley Elkins v . secretary, VA 93-108-R through
VA 93-140-R .
The civil pe.n alties proposed by the
3.
Secretary in these two docket numbers total $436,372.
(Attachment A.) Eight of the involved citations
were assessed by the Secretary at $50,000 each. The
Secretary intends to prove at trial that each of these
eight violations contributed to a fatal explosion at
Southmountain's No. 3 Mine on December 7, 1992, in
which 8 miners were killed and 1 miner was injured
seriously.
4o
A.f ter Southmountain filed its blue card
wi t h MSHA, the undersigned counsel received separ ate civil penalty packets from MSHA's civil Penalty
Off i ce f or VA 93-165 and VA 93-166 . These penalty
packets are used by the Solicitor's Office to prepare
the Petitions for civil Penalty Assessment that are
f iled with the Commission. Each of the penalty
packets received from MSHA in this case was bound
t ogether so that the civil Penalty Office date stamp
of ' September 17 , 1993 ' appeared at the bottom of
e ach of the two blue cards . (Attachments B & c. The
undersigned counsel has circled this date with blue
marker on each of the blue cards .) The undersigned
counsel calculated the 45-day civil penalty filing
period provided for in Commission Rule 28 from the
September 17, 1993, date stamp. As a result, the
undersigned counsel was under the good faith belief
that the deadline for filing a civil penalty in docket
numbers VA 93-165 and VA 93-166 was November 1. 1993.

2422

5.
Unknown to the undersigned counsel was
the fact that there was a second MSHA Civil Penalty
Off ice date stamp on each of the two blue cards and
that this second stamp bore the date 'September 10,
1993.' The undersigned counsel certifies that given
the position of this second date stamp, at the
opposite end of each of the September 17 date stamp,
and at the uppermost portion of the blue cards, it
was nQt. observed by him during his review of MSHA's
penalty packets for both VA 93-165 and VA 93-166.
(In addition, this second date stamp of September 17
was concealed from the undersigned counsel's view as
the documents were reviewed in their bound condition.)
The undersigned counsel also certifies that he expected
to find only one date stamp from MSHA's Civil Penalty
Office on the blue cards. As a result, the 45-day
filing period was calculated frq:m September 17, 1993,
and not from September 10, 1993. The undersigned
subsequently has learned that the September 17, 1993,
date mistakenly relied upon by him was actually the
date that MSHA's Civil Penalty Office received the
blue card from the Commission.
6.
The Secretary submits that the undersigned
counsel's good faith reliance upon the wrong MSHA
Civil Penalty Office stamp date, and counsel's explanation as to how this mistake occurred, constitute
adequate cause under Rhone-Poulenc, supra., for his
filing a civil penalty petition 4-days out of time.
The above representations are not disputed by Southmountain
and ! find that they do in fact set forth legally sufficient
a dequate cause f or excusing the brief four-day delay in the
~il i ng of t he Secretary's civil penalty petitions in these
cases o However , while I have found the excuses acceptable in
the instant cases there is indeed concern with the increasing
number of late filings. For the Commission judges to maintain
their dockets i n manageable order , it is essential that the
~arties adhere stri ctly to fil ing deadlines o
While Southmountain also alleges in these cases that
i t has been prejudiced by the four-day filing delay, i bas
f ailed to cite a particularized factual basis to suppo
the
allegation o Under the circumstances , the motion to dis iss
f iled by Southmountain is DENIED.

Gary Melick
Administrativ

2423

Law Judge

Distributi on:
Carl c. Charneski, Esq., Office of the Solicitor,
U.S. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlinqton, VA 22203 (Certified Mail)
Henry Chajet, Esq . , James Zissler, Esq., Jackson and Kelly,
2401 Pennsylvania Ave . , N. W., Suite 400, Washinqton, D.C.
20037 (Certifi ed Mail)
lh

24 2 4