JUNE 1990
COMMISSION DECISIONS
06-05-90
06-06-90
06-12-90
06-14-90
06-14-90
06-18-90
06-28-90

Odell Maggard v. Chaney Creek Coal Co.
Dennis Wagner v. Pittston Coal Group, etc.
J.R. Thompson, Inc.
Bentley Coal Company
Bentley Coal Company
Hickory Coal Company
John Gilbert v. Sandy Fork Mining Co.

KENT 86-1-D
VA
88-21-D
CENT 89-161-M
WEVA 90-36
WEVA 90-52
PENN 90-49
KENT 86-49-D

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

1175
1178
1194
1197
1199
1201
1203

LAKE 89-92-M
PENN 89-226-D
KENT 89-187
KENT 89-204
WEST 89-11-DM
PENN 89-205
VA
90-8
WEST 89-425-M
CENT 89-161-M
LAKE 90-26-D
PENN 90-106-D

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

1207
1209
1237
1238
1239
1267
1276
1277
1279
1280
1281

WEVA 90-6
CENT 89-129-M
LAKE 89-56-DM

Pg. 1282
Pg. 1290
Pg. 1291

KENT 89-261
WEVA 89-176
WEST 88-276
WEST 89-395-DM
WEST 90-67-DM
VA
90-13-C
KENT 90-98-D
SE
89-16-R
KENT 90-185-R

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

ADMINISTRATIVE LAW JUDGE DECISIONS
06-05-90
06-05-90
06-07-90
06-07-90
06-07-90
06-08-90
06-08-90
06-11-90
06-13-90
06-13-90
06-13-90
06-13-90
06-14-90
06-15-90
06-19-90
06-19-90
06-21-90
06-21-90
06-21-90
06-25-90
06-27-90
06-27-90
06-29-90

France Stone Company
Joseph Pelehac, Jr. v. Consolidation Coal Co.
Manalapan Mining Company
Caldron Coal Corporation
Donald H. Gibson v. Cyprus Bagdad Copper Co.
Kent Coal Mining Company
Flippy Coal Company
Blue Range Mining Co., L.P.
J.R. Thompson Incorporated
Donald F. Denu v. Amax Coal Company
Sec. Labor for Donald F, Rados v. Beth
Energy Mines, Inc.
Noone Associates, Inc.
Walker Stone Company
Kathleen I. Tarmann v. International
Salt Company (Partial Decision)
Shamrock Coal Company, Inc.
Pretzel Excavating
Mid-Continent Resources, Inc.
Armando M. Rivas v. Phelps Dodge Morenci, Inc.
Wayne L. Iveyv. Blue Ridge Mining Co.
Bobby Strouth et al. v. Cavalier Mining Corp.
Charles Scott Howard v. Harlan-Cumberland Coal
Jim Walter Resources, Inc.
Golden Oak Mining Co., L.P.

1301
1308
1331
1350
1351
1352
1353
1354
1360

JUNE 1990
Review was granted in the following cases during the month of June:
Secretary of Labor, MSHA v. Beth Energy Mines, Inc., Docket No. PENN 89-222.
(Judge Weisberger, May 2, 1990)
Secretary of Labor, MSHA v. J.R. Thompson, Inc., Docket No. CENT 89-161-M.
(Default Decision of Chief ALJ Merlin on February 6, 1990)
Secretary of Labor, MSHA v. Ten-A-Coal Company, Docket No. WEVA 89-274.
(Judge :Maurer, May 3, 1990)
Secretary of Labor, MSHA v. Lanham Coal Company, Docket No. KENT 89-186)
(Judge Broderick, April 30, 1990 - previously directed for review sua sponte
by the Commission on May 30, 1990)
Secretary of Labor, MSHA v. Bentley Coal Company, Docket Nos. WEVA 90-36 and
WEVA 90-52. (Default Decisions of Chief ALJ Merlin on May 31, 1990)
Secretary of Labor, MSHA v. Hickory Coal Company, Docket No. PENN 90-49.
(Default Decision of Chief ALJ Merlin on May 24, 1990)
Secretary of Labor, MSHA v. Sanger Rock and Sand, Docket No. WEST 88-275-H
and WEST 89-71-M. (Judge Morris, May 17, 1990)
Review was denied in the following cases during the month of June:
Secretary of Labor, MSHA v. Brown Brothers Sand Company, Docket No. SE 90-12-M.
(Judge Melick, April 27, 1990)
Arnold Sharp v. Big Elk Creek Coal Company, Docket No. KENT 89-147-D.
(Interlocutory Review of Judge Melick's Order dated May 31, 1990)

COMMISSION DECISIONS

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

June 5, 1990
ODELL MAGGARD
v.

Docket No. KENT 86-l-D

CHANEY CREEK COAL COMPANY
and
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA), on behalf
of ODELL MAGGARD
v.

Docket No. KENT 86-51-D

DOLLAR BRANCH COAL CORPORATION
and CHANEY CREEK COAL
CORPORATION

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

ORDER

BY:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

In our most recent decision in this discrimination case, on remand
from an opinion of the United States Court ·of Appeals for the District
of Columbia Circuit (Chaney Creek Coal Corp. v. FMSHRC, etc., 866 F.2d
1424 (1989), aff'g in part, rev'g in part, Odell Maggard v. Chaney Creek
Coal Co., etc., 9 FMSHRC 1314 (August 1987)), we reinstated Commission
Administrative Law Judge Gary Melick's initial award of attorney's fees
and remanded this matter to the judge for further proceedings with
respect to interest on back pay. 12 FMSHRC 380, 383-86 (March 1990).
Following our decision, private counsel for complainant Odell Maggard
filed with the Commission a Motion for Instructions Concerning
Supplemental Fees on Remand to Administrative Law Judge. No response to
this motion has been received from the other parties. Upon consideration of the motion, it is granted as explained below.

1175

In this r",tion, Maggard requests the Commission to instruct the
judge to determine the additional amount of attorney's fees owed Maggard
in connection.with his private legal representation in review
proceedings before the Commission and the D.C. Circuit subsequent to the
judge's initial decisions in this matter in 1986. · Maggard points to the
language in section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et seg. (1982)("Mine Act"), providing that a
successful complainant in Mine Act discrimination proceedings may be
awarded attorney's fees "reasonably incurred ... for, or in connection
with, the institution and prosecution" of such proceedings. 30 U.S.C.
§ 815(c)(3).
A similar motion for attorney's fees incurred in administrative
and court appellate proceedings was acted upon by the Commission in
Robert Simpson v. Kenta Energy, Inc., 11 FMSHRC 1638 (September 1989).
There, we remanded the case to Commission Administrative Law Judge James
A. Broderick for "resolution of whether the attorney's fees being sought
for administrative and court appeal proceedings are properly awardable
under the Mine Act and, if so, for all appropriate findings of fact
relevant to determination of the amount to be awarded." 11 FMSHRC at
1639. On remand, Judge Broderick issued a Partial Decision on Remand
concluding that such post-trial fees were recoverable and that a
Commission administrative law judge may properly make findings and
determinations with respect to the appropriate amount of any such fee
award. Robert Simpson v. Kenta Energy Inc., 11 FMSHRC 2543, 2544-46
(December 1989)(ALJ).

1176

We follow here the course that we took in Simpson, supra. In the
course of the remand proceedings previously ordered, the judge is also
instructed to rule o~ the question of whether attorney's fees incurred
in connection with appellate proceedings are awardable under the Mine
Act and, if so, to enter all appropriate factual findings relevant to
determination of the amount to be awarded.

~~
...=--·--/)

r /_..-- ,,.

,I. -

c

(_

(~

/, ,..,.-.--·
:... ,_

(

Richard V. Backley, Commissioner

Joyce A. Doyle,

~~~Cl=

L. Clair Nelson, Commissioner

Distribution
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky
P.O. Box 360
Hazard, Kentucky 41701
Mr. John Chaney
Chaney Creek Coal Corporation
Route 1, Box 286
East Bernstadt, Kentucky 40729
Colleen A. Geraghty, 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, Virginia 22041

1177

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

June 6, 1990
DENNIS WAGNER
v.

Docket No. VA 88-21-D

PITTSTON COAL GROUP
CLINCHFIELD COAL COMPANY
JACK CRAWFORD
MONROE WEST
WAYNE FIELDS
and
ANN McLAUGHLIN
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
GERALD SLOCE AND KENNETH HOWARD

Before:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

DECISION

By:

Ford, Chairman; Doyle and Nelson, Commissioners

In this discrimination proceeding, arising under the Federal Mine
Safety and Health Act of 19 77, 30 U.S. C. § 801 et seq. (1988 )("Mine Act"
or "Act"), the Secretary of Labor seeks interlocutory review of that
portion of an order by Commission Administrative Law Judge James A.
Broderick, holding that the Department of Labor's Mine Safety and Health
Administration ("MSHA") and its employees are "persons" subject to the
discrimination prohibitions of section 105(c)(l) of the Mine Act,
30 U.S.C. § 815(c)(l). ll The judge certified his ruling to the

lf

Section 105(c)(l) of the Mine Act provides:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any

1178

Conunission, and the Secretary's petition tor interlocutory review was
granted. For the reasons that follow, we reverse the judge insofar as
he held that MSHA and its employees are "persons" subject to section
105.(c) of the Mine Act, and we dismiss those portions of Wagner's
complaint pertaining to the individual governmental respondents.
I.

At all times relevant to this case, Dennis Lee Wagner was employed
as a miner at the McClure No. 1 Mine, an underground coal mine, located
near McClure, Virginia, and operated by Clinchf ield Coal Company
("Clinchfield"), a subsidiary of the Pittston Coal Group ("Pittston").
Wagner was also ~ United Mine Workers of Anierica ("UMWA") safety
conunitteeman at the mine.
On June 26, 1987, Wagner was suspended with intent to discharge by
Clinchfield, but shortly thereafter was reinstated with back pay, as the
result of an arbitration proceeding conducted pursuant to the wage
agreement between Clinchf ield and the UMWA.
On July 17, 1987, Wagner filed a discrimination complaint with
MSHA, alleging that Clinchfield, Pittston and their employees, Monroe
West, Jack Crawford, and Wayne Fields, as well as the Secretary of Labor
and MSHA and its agents, Inspector Gerald Sloce and District Manager
Kenneth Howard, had all unlawfully discriminated against him in
violation of section lOS(c) of the Mine Act.
Wagner alleged that the respondents had collectively conspired to
obstruct effective operation and enforcement of the Mine Act and had
discriminated against him because he had engaged in protected activities
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act] because such miner, representative of miners
or applicant for employment has filed or made a
complaint under or related to this [Act], including
a complaint notifying the operator or the operator's
agent, or the representative of the miners at the
coal or other mine of an alleged danger or safety or
health violation in a coal or other mine, or because
such miner, representative of miners or applicant
for employment is the subject of ·medical evaluations
and potential transfer under a standard published
pursuant to section [101] ..• or because such miner,
representative of miners or applicant for employment
has instituted or caused to be instituted any
proceeding under or related to this [Act] or has
testified or is about to testify in any such
proceeding, or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this [Act].
30 U.S.C. § 815(c)(l).

1179

as a representative of miners. Alternatively, Wagner alleged that the
respondents had individually discriminated against him because he had
reported unsafe conditions and safety violations to MSHA officials and
because of _other actions associated with his status as a representative
of miners.
Upon completion of MSHA's investigation of Wagner's complaint, the
Secretary filed an action on Wagner's behalf against Clinchfield
pursuant to section 105(c)(2) of the Act (Docket No. VA 88-i9-D). ~/
The complaint named only Clinchf ield as a respondent and alleged that
~/

Section 105(c)(2) of the Mine Act provides in part:
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 discrimination. Upon
receipt of such complaint, the Secretary shall
forward a copy of the complaint to the respondent
and shall cause such investigation to be made as he
deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt
of the complaint, and if the Secretary finds that
such complaint was not frivolously brought, the
Commission, on an expedited basis upon application
of the Secretary, shall order the immediate
reinstatement of the miner pending final order on
the complaint. If upon such investigation, the
Secretary determines that the provisions of this
subsection have been violated, he shall immediately
file a complaint with the Commission, with service
upon the alleged violator and the miner, applicant
for employment, or representative of miners 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. The Commission shall
have authority in such proceedings to require a
person committing a violation of this subsection to
take such affirmative action to abate the violation
as the Commission deems appropriate, including, but
not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and
interest ....

30 U.S.C. § 815(c)(2).

1180

Clinchfield illegally discriminated against Wagner when it suspended him
with intent to discharge because he had reported a safety violation to
Inspector Sloce during an inspection of the mine. Because Wagner had
been reinstated prior to the filing of the complaint and paid back wages
as the result of the arbitration award, the Secretary sought only
interest on his back pay, reimbursement to Wagner of attorney's fees
incurred as a result of the discrimination, an order directing
Clinchfield to comply with section lOS(c) in the future, and the
assessment of a civil penalty for the operator's violation of section
lOS(c). Subsequently, Judge Broderick approved a settlement of the
Secretary's section 105(c)(2) complaint on Wagner's behalf. Pursuant to
the parties' settlement agreement, the judge awarded interest on lost
wages, noted Clipchfield's promise of future compliance with section
lOS(c), and assessed a civil penalty of $700 against Clinchfield.
10 FMSHRC 1542 (November 1988)(ALJ).
Approximately one month after the Secretary's complaint was filed,
Wagner, as an individual and member of a class, filed the subject
discrimination complaint pursuant to section 10S(c)(3) of the Act. }/
}/

Section 105(c)(3) of the Mine Act provides in part:
Within 90 days of the receipt of a complaint filed
under [section 105(c)(2)], the Secretary shall
notify, in writing, the miner, applicant for
employment, or representative of miners of his
determination whether a violation has occurred. If
the Secretary, upon investigation, determines that
the provisions of this subsection have not been
violated, the complainant shall have the right,
within 30 days of notice of the Secretary's
determination, to file an action in his own behalf
before the Commission, charging discrimination or
interference in violation of [section lOS(c)(l)].
The Commission shall afford an opportunity for a
hearing ... and thereafter shall issue an order,
based upon findings of fact, dismissing or
sustaining the complainant's charges and, if the
charges are sustained, granting such relief as it
deems appropriate, including but not limited to, an
order requiring the rehiring or reinstatement of the
miner to his former position with back pay and
interest or such remedy as may be appropriate. Such
order shall become final 30 days after its issuance.
Whenever an order is issued sustaining the
complainant 1 s charges under this subsection, a sum
equal to the aggregate amount of all costs and
expenses (including attorney's fees) as determined
by the Commission to have been reasonably incurred
by the miner, applicant for employment or
representative of miners for, or in connection with,
the institution and prosecution of such proceedings
shall be assessed against the person committing such

1181

The multi-count complaint reiterates many of the allegations in Wagner's
complaint to MSHA and alleges that MSHA and its agents illegally
disclosed to operators the identities of miners making safety complaints
and, in particular, disclosed Wagner's identity to Clinchfield and
Pittston; that Clinchfield and Pittston illegally required miners to
report to management all safety violations prior to reporting them to
MSHA and suspended Wagner for failing to conform to that policy; that
MSHA and its agents, in collusion with the operators, obstructed the
enforcement of mine safety laws; and that MSHA and its agents conspired
with Clinchfield and/or Pittston and their agents to interfere with
miners' rights to file safety complaints.
Wagner's complaint seeks to have the Commission order MSHA and its
agents to cease and desist from violating miners' rights to anonymity,
from harassing and retaliating against miners, including Wagner, and
from refusing to re-establish a special unit investigating
discrimination complaints. Wagner further seeks to have the Commission
order Clinchfield and/or Pittston and their agents to cease and desist
from retaliation and harassment against Wagner and others for reporting
safety violations and from the policy of requiring miners to first
report safety violations to management. Finally, Wagner's complaint
seeks an order requiring all of the respondents to cease their alleged
conspiracy to render mine safety laws ineffectual and to impede the
independence of investigators and inspectors. Wagner also seeks
interest, punitive damages, costs, attorney's fees, and the assessment
of a civil penalty against the respondents.
Clinchfield, Pittston and their named employees moved for
dismissal of Wagner's complaint on the grounds that it was barred by the
Secretary's complaint on Wagner's behalf, which was settled in Docket
No. VA 88-19-D. The Secretary also moved to dismiss Wagner's complaint,
arguing that section lOS(c)'s prohibition against "persons" committing
acts of discrimination does not encompass federal agencies or officials
and that MSHA and its officers and agents are immune from suit under
section lOS(c); that section lOS(c) does not contemplate class action
suits, or that if it does, the purported class has not been properly
alleged; that parts of the complaint are untimely; and that Wagner has
no right to challenge in a section lOS(c) proceeding the manner in which
the Secretary chooses to investigate discrimination complaints.
In an unpublished interlocutory order, the administrative law
judge concluded that the complaint did not ·state a cause of action
against the Secretary of Labor individually; that it must be dismissed
with regard to those acts of discrimination that had also been charged
in the Secretary's complaint; that it did not meet the prerequisites for
a class action; that those portions of the complaint charging all of the
respondents with conspiring to undermine enforcement of the Act and to
discriminate against Wagner were too vague to support a claim; and that
portions of the complaint were untimely. ALJ Order 2-4 (May 24,
1988)("0rder").
violation •.•.
30 U.S.C. § 815(c)(3).

1182

The judge also stated:
The Secretary argues that neither MSHA nor any of
its officers or agents can be considered a "person"
under section lOS(c) of the Act because of the
doctrine of sovereign immunity. I have previously
ruled that MSHA is a person under lOS(c) in the case
of Local 9800 v. Secretary of Labor or Thomas
Dupree, 2 FMSHRC 2680 (September 1980)[(ALJ)]. I
adhere to that ruling in this case •.•. I conclude
that Congress intended that the prohibition against
discrimination applies to all persons, including
government officials.
Order 3.
Accordingly, all of the allegations in the complaint were
dismissed except for the allegation that the federal respondents had
adopted a policy, which they enforced against Wagner, of disclosing to
coal companies the names of miners who had reported safety violations
and the allegation that the operators had adopted a policy requiring
miners to report safety violations to management before communicating
them to MSHA. Order 4.
II.

The Secretary asserts that "the judge erred in ruling that MSHA
may be sued and that employees of MSHA may be sued individually and/or
in their official capacity as 'persons' under section lOS(c) of the Mine
Act. 11 PIR 1. For the reasons set forth below·, we agree.
In Local 9800, on which the judge relied, the complainant union
alleged that an employee of MSHA had unlawfully discriminated against it
when he threatened the union local and its president with legal action
as a result of their complaints about alleged irregularities in certain
mine inspections. MSHA moved to dismiss the union's complaint
asserting, among other things, that MSHA was not a "person" subject to
the provisions of section lOS(c). The judge found nothing in the Mine
Act or in its legislative history to indicate that Congress directly
considered whether MSHA or any other public agency could be a "person"
involved in discriminatory conduct under section lOS(c) of the Act.
Therefore, the judge stated that he was required "to guess" what
Congress would have intended if it had considered the question.
2 FMSHRC at 2683. The judge noted the statement in the Senate Committee
Report that "the prohibition against discrimination applies not only to
the operator but to any other person directly or indirectly involved"
and also noted the same committee's admonition that section lOS(c) is
"to be construed expansively" in order "to assure that miners will not
be inhibited in any way in exercising any rights afforded by
legislation." S. Rep. No. 95-181, 95th Cong., 1st Sess. 36 (1977),
reprinted in Senate Subcommittee on Labor, Committee on Human Resources,
95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety
and Health Act of 1977 at 624 ("Legis. Hist."); 2 FMSHRC at 2683. The
judge reasoned that the "general rule" that the United States is not

1183

bound by legislation when it is not expressly named in or made subject
of the legislation may be curtailed when the statute is "intended to
prevent injury and wrong." 2 FMSHRC at 2683 (quoting Nardone v. United
States, 302 U.S. 379, 384 (1937). The judge further reasoned that, in
such cases, the entire scheme of regulation must be examined to
determine if an effective alternate remedy is available. 2 FMSHRC at
2683. The judge concluded that the alleged act of discrimination was
"by its inchoate nature, uniquely within the domain of this Commission"
and held that "MSHA is a person under section 105(c)" and, as such, is
"prohibited from discriminating against any miner." 2 FMSHRC at 2684.
On review, the Secretary takes issue with this rationale and its
application to the present case, arguing that a waiver of the doctrine
of sovereign immunity must be unequivocally expressed, and that when, as
in the Mine Act, the definition of "person" does not expressly extend to
a governmental agency and its employees, Congress did not mean for the
agency and its officers and agents to be liable under the Act. See Sec.
Br. at 8-11. Further, the Secretary notes that holding MSHA liable
under section 105(c) would result in the anomalous situation of MSHA
investigating and prosecuting cases in which it and its agents are also
defendants. Id. at 12.
Wagner responds that granting sovereign immunity to MSHA
inspectors and other agency employees is inconsistent with the spirit
and intent of the Mine Act and general legal principles of sovereign
immunity. Wagner urges the adoption of a case-by-case approach in
analyzing the conduct of MSHA employees and determining whether immunity
-is justified. Wagner contends that where, as here, the conduct of an
MSHA employee does not further a clearly expressed governmental policy,
immunity does not apply. Wagner Br. 6, 9-11.
Our analysis of these issues begins, as it must, with the words of
the Mine Act. Section 105(c)(l) states, "[n]o person shall discharge or
in any manner discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise of the
statutory rights of any miner ..•. " Although the term "person" is not
defined in section 105(c), section 3(f) of the Act defines "person" as
"any individual, partnership, association, corporation, firm, subsidiary
of a corporation, or other organization." Absent from the definition of
"person" is any reference to the government or any governmental entity.
30 U.S. C. § 802 ( f) . " [I] n common usage, tl~e term 1 person' does not
include the sovereign, [and] statutes employing the phrase are
ordinarily construed to exclude it." Wilson v. Omaha Indian Tribe, 442
U.S. 653, 667 (1974) (quoting United States v. Cooper Corp., 312 U.S.
600, 604 (1941)). See also United States v. United Mine Workers of
America, 330 U.S. 258, 275 (1947). As the Commission has previously
observed, it is well settled that the United States, as the sovereign,
is immune from suit except as it consents to be sued and that waivers of
its immunity must be unequivocally expressed. See Rushton Mining Co.,
11 FMSHRC 759, 766 (May 1989). The Mine Act contains no such waiver of
MSHA's immunity from suit under section 105(c).
Further, other terms in the Mine Act specifically denote
governmental entities. Section 3(a) defines "Secretary" as "the

1184

Secretary of Labor or his delegate. 11 30 U.S.C. § 802(a). Section 3(n)
defines 11 Administration 11 as 11 the Mine Safety and Health Administration
in the Department of Labor. 11 30 U.S.C. § 802(n). Where Congress has
specifically.defined the term 11 person 11 so as to avoid including the
government and its agencies within that definition, and has expressly
included them in other definitions, it is clear that Congress has
purposefully legislated into the Act a distinction between a 11 person 11
and the government, here specifically MSHA, and that neither may be
subsumed into the other. ~/ Had Congress intended to include MSHA as a
potential defendant under section 105(c), it would have done so
explicitly.
For the for.egoing reasons, we hold that MSHA is not a 11 person 11
subject to the provisions of section 105(c).
III.

We also conclude that MSHA's employees and agents are not
persons 11 subject to the provisions of section 105(c), and thus that
MSHA Inspector Sloce and MSHA District Manager Howard cannot be sued
individually under section 105(c).
11

We have noted that the definitions set forth in the Act and the
enforcement scheme of section 105(c) indicate that Congress regarded the
Secretary and MSHA as separate and distinct from the population covered
by the term 11 person. 11 While MSHA possesses its own legal identity, it
is composed of individuals who hold and staff MSHA's offices and
positions. In view of MSHA's role in effectuating section 105(c), we
are convinced that, had Congress intended that MSHA's employees be
susceptible to section 105(c) suits, it would have expressly stated as
much.
The Mine Act, unlike some other acts, does not specifically
include employees of the government as 11 persons 11 for purpose of
liability under the Act. Compare Omnibus Crime Control Act of 1968, 30
U.S.C. §§ 2510, 2520 (1982); Marine Protection Research and Sanctuaries
Act of 1972, 30 U.S.C. §§ 1415(g), 1402(e) (1982); Federal Pollution
Control Act, 30 U.S.C. § 1365(a) (1982). Further, as we have noted, the
structure of section 105(c) requires the Secretary (actually MSHA in
practice) to investigate all initial discrimination complaints. Under
the judge's interpretation of section 105(c), MSHA would be required to
investigate its own employee if a discrimination complaint were filed
against him and, upon finding evidence of discrimination, prosecute him
on behalf of the complainant. In effect, the Secretary would be
required to prosecute herself, a result not contemplated in the
enforcement scheme of section lOS(c).

4/

For example, in providing for the judicial reviewof Commission

~rders, section 106(a)(l) of the Act states "[a]ny person adversely

affected or aggrieved by an order of the Commission ... may obtain
review, 11 30 U.S.C. § 816(a)(l), and section 106(b) states, 11 [t]he
Secretary may also obtain review .... 11 30 U.S.C. § 816(b).

1185

Furthe~, the type of relief that Congress envisioned
discriminatees be awarded is not of the type MSHA employees may readily
provide. Section 105(c)(2) gives the Commission the authority to
require a person violating section 105(c) "to take such affirmative
action to abate the violation as the Commission deems appropriate,
including, but not limited to, the rehiring or reinstatement of the
miner to his former position with back pay and interest." 30 U.S.C.
§ 815(c)(2).
Rehiring and reinstatement with back pay and interest are
typically within the control of the operator. While Congress envisioned
that the Commission might also issue cease and desist orders where
appropriate, it emphasized that those orders "include requirements for
the posting of .notices by the operator." Legis. Hist. at 625.

In addition, section 105(c)(3) states that "[v]iolations by any
person of ... [section 105(c)(l)] shall be subject to the provisions of
sections 108 and llO(a)." 30 U.S.C. §§ 818 and 820(a). Since the
injunctive provisions of section 108 and the civil penalty provisions of
section llO(a) apply specifically to the "operator" or "his agent," it
does not appear that Congress intended employees of MSHA to be subject
to the sanctions applicable to "persons" who violate section 105(c).
Thus, we agree with the Secretary that section 105(c) was not
structured by Congress to accord complainants the right to proceed
against MSHA's employees.
Although we find no cause of action for abuse of power by an
employee of MSHA under section 105(c), it must be noted that an employee
whose action is in violation of his or her duties is not immune from
civil suit and possible punitive action. It is well settled that
individuals wronged by federal agents through abuse of their power may
have a cause of action for damages under state law. See Wheeldin v.
Wheeler, 373 U.S. 647, 652 (1963). lf Moreover, the Secretary clearly
has the authority through her Office of Inspector General to
investigate, punish and to remove from office any of her employees found
to have engaged in conduct violative of the Mine Act or in other
misconduct.

v.
Accordingly, we reverse the judge's holding that MSHA and its
employees are subject to suit under the provisions of section 105(c),
and we dismiss those portions of Wagner's complaint pertaining to the

21

We note that Wagner brought a civil action in Virginia against
MSHA Inspector Sloce, among others, alleging common law claims under
state law. Wagner v. Pittston Coal Group, et al., Law No. 6499,
Dickinson County, Virginia Circuit Court (filed June 21, 1988), removed
by order of July 13, 1988, to U.S. District Court for the Western
District of Virginia, Civil Action No. 88-0195-A. Sec. Br. 6 n. 5.
While Wagner did not expressly allege violations of his constitutional
rights, we note that damages are available when Fourth and Fifth
Amendment rights have been violated. See Bivens v. Six Narcotics
Agents, 403 U.S. 388 (1971); Davis v. F;rsman, 442 U.S. 228 (1979).

1186

federal respondents. We remand this matter to the judge for further
proceedings consistent with this opinion.

Commissioner

1187

Commissioners Backley and Lastowka, concurring in part and dissenting
in part:
agree with the majority that complainant Dennis Wagner is harred
by the principle of sovereign immunity from bringing a discrimination
action against the Hine Safety and Health Administration ("MSHA") pursuant to section 105(c) of the Federal Mine Safety and Health Act of
1977 ("Mine Act"). We base our agreement on the Mine Act's failure to
include any reference to the government or any governmental entity in
its :lefinition of "person" and the principle of sovereign immunity.
~·le

\le dissent, however, from that part of the majority decision that

holds that Wagner is similarly barred in all circumstances from bringing
a discrimination action against individuals employed by MSHA. As discussed below, a different analysis is required, and a different conclusion
results, in determining the potential liability under section 105(c) of
individuals employed by MSHA as opposed to the governmental agency itself.

At the outset, we acknowledge that "determining the extent to which
a federal officer may be protected by sovereign immunity for acts done
in his or her official capacity is an extraordinarily difficult problem"
requiring careful analysis and a delicate balancing of conflicting
interests. 14 C. Wright, A. Miller & E. Cooper, Federal Practice and
Procedure § 3655 at 218 (2nd ed., 1985) ("Wright & Miller"). Wagner
alleges in Count 25 of his complaint that two MSHA officials, Inspector
Gerald Sloce and District Manager Kenneth Howard, adopted a policy of
informing coal companies, including Wagner's employer, the Pittston Coal
Group, of the names of miners who report safety violations to MSHA, that
pursuant to this policy Pittston was informed that Wagner had made a
safety complaint to MSHA, and that as a direct consequence of the actions
by the MSHA officials Wagner was harrassed and discharged by Pittston.
Because the complaint alleges official misconduct on the part of Sloce
and Howard, an inquiry into the principle of sovereign immunity is
required.
When federal officials are sued in their official capacity, the
facts of the case and the relief sought by the plaintiff must be
analyzed to determine if the suit in reality is against the individual
or against the United States. Wright & Miller § 3655 at 217. If the
suit is not against the federal government, then sovereign immunity does
not apply. Id. "The general rule is that a suit is against the sovereign
if 'the judgment sought would expend itself on the public treasury or
domain, or interfere with the public administration,' or if the effect of
the judgment would be 'to restrain the Government from acting, or to compel
it to act.'" Pennhurst State School v. Halderman, 465 U.S. 89, 101 n.11
(1984)(quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)(citations omitted));
U.S. v. Yakima Tribal Co~ 806 F.2d 853, 858 (9th Cir. 1986).

1188

A suit brought against a federal official for specific relief is not
a suit against the United Stat•.·s i f the official acted outside the scope
of his authority and his actions are therefore ultra vires. "If an
employee of the United States acts completely outside his governmental
authority, he has no immunity." Yakima Tribal Ct., 806 F.2d at 859;
Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689 (1949).
For example, suits charging federal officials with unconstitutional
conduct are not barred by sovereign immunity because in such suits, "the
conduct against which specific relief is sought is beyond the officer's
powers and is, therefore, not the conduct of the sovereign." Larson,
337 U.S. at 690, 696-97, 702.
Where a claim against a federal official is based on an official's
violation of federal statutes or regulations, as opposed to an unconstitutional act, a somewhat different analysis applies. Yakima, 806 F.2d
at 859. In such instances, if the official has simply committed a mistake of fact or law in the discharge of his duties, his actions do not
necessarily exceed the scope of his authority. The Supreme Court has
expressly rejected the argument that a government official "given the
power to make decisions is only given the power to make correct decisions."
Larson, 337 U.S. at 695. In Larson, the Court held that official action
is not invalid because it was based on an incorrect decision as to law
or fact, "if the officer making the decision was empowered to do so."
Id. "Official action is still action of the sovereign, even if wrong,
if it 'do[esJ not conflict with the terms of [the officer's] valid statutory authority ••• "' Yakima, 806 F.2d at 860 (quoting Larson at 695).
Thus, when a federal official is charged with violating a federal
statute or regulation, the applicability of sovereign immunity "turns
on whether the [official] was empowered to do what he did, i.e., whether
even if he acted erroneously, it was action within the scope of his
authority." Pennhurst, 465 U.S. at 112 n.22. Stated similarly, an
ultra vires claim "rests on the official's lack of delegated power."
Yakima, 806 F.2d at 860. An important consideration in making this
determination is whether the official's power is limited by statute and
whether he has exceeded such limitation. Larson, 337 U.S. at 689-90;
Martinez v. Marshall, 573 F.2d 555, 560 (9th Cir. 1977). At some point,
a violation of a statute or regulation becomes so inconsistent with the
agent's authority that his actions are divested of the cloak of sovereign
immunity. Yakima, 806 F.2d at 860.
Thus, as specifically applied to persons employed by MSHA, the
principle of sovereign immunity can be summarized as follows. An MSHA
official is subject to individual suit, and cannot raise a sovereign
immunity bar, if his actions are unconstitutional, or conflict with
and exceed the scope of his statutory or regulatory authority and
amount to more than a mistake of law or fact in the exercise of
delegated duties, and if the relief sought against the individual is
not a claim against the United States Treasury, does not interfere with
a government program or does not restrain the Government from acting or
compel it to act.
Therefore, the Secretary's argument that the principle of sovereign
immunity in all circumstances requires that discrimination claims brought

1189

against persons employed by MSHA be dismissed must be rejected. A bald
claim of sovereign immunity cannot preclude Wagner from an opportunity to
establish that Inspector Sloce's and District Manager Howard's authority
is limited by the Mine Act, that one or both of them exceeded such
limitation and acted in a manner violative of section 105(c), and that
the relief sought is against Sloce and Howard as individuals rather
than against the government. If such a showing is made, the principle
of sovereign immunity does not apply.
Structure of Section 105(c)
The majority would also dismiss Wagner's complaint on the basis that
section 105(c) is. not structured to allow the Secretary to investigate
an alleged act of discrimination committed by one of her agents. Given
the express language of section 105(c), this protest is unpersuasive.
The Mine Act in no way precludes the Secretary from filing a section
105(c) discrimination complaint against an individual employed by MSHA
where such person acted in a manner exceeding the scope of his statutory
authority and in violation of section 105(c).
Section 105(c)(l) of the Mine Act expressly provides that "no person
shall ••• in any manner discriminate against •.. or cause discrimination
against or otherwise interfere with the exercise of the statutory rights
of any miner •••• " 30 U.S.C. 815(c)(l)(emphasis added). The term "person"
is defined in section 3(f) as "any individual, partnership, association,
corporation, firm, subsidiary of a corporation, or other organization."
30 U.S.C. 802(f)(emphasis added). Thus, by its express terms, the Mine
Act prohibits any individual from discriminating against miners in
violation of section 105(c), and this broad prohibition includes, rather
than exempts, individuals employed by the Secretary.
Unless exceptional circumstances dictate otherwise, judicial inquiry
into the meaning of a statute is complete once a court finds that the
terms of the statute are unambiguous. Burlington Northern R. Co., v.
Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987). As the Supreme Court has
stated:
[T]he starting point for interpreting a statute is the
language of the statute itself. Absent a clearly
expressed legislative intention to the contrary, that
language must ordinarily be regarded as conclusive.
Consumer Prod. Safety Cornrn'n v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980); ~also Chevron USA, Inc., v. Natural Resources Defense Counsel,
Inc., 467 U.S. 837, 842 (1984). Section 3(f) of the Mine Act defines
"person" to include "any individual." The Mine Act does not include a
second special definition of "person" applicable only to section 105(c)
or an express exclusion in section 105(c) limiting its reach. Thus, in
the absence of a clearly expressed legislative intention to the contrary,
section 105(c)'s use of the word "person" and section 3(f)'s definition
of "person" to include "individuals" must be interpreted in accordance
with the plain meaning of those words.

1190

Furthermore, the legislative history of the Mine Act clearly provides
that section 105(c) is to be broadly interpreted:
It is the Committee's intention to protect miners
against not only the common forms of discrimination,
such as discharge, suspension, demotion, reduction
in benefits, vacation, bonuses and rates of pay, or
changes in pay and hours of work, but also against
the more subtle forms of interference, such as
promises of benefit or threats of reprisal. It
should be emphasized that the prohibition agaiilst
discrimination applies not only to the operator
but to any other person directly or indirectly
involved.
S. Rep. No. 95-181, 95th Cong., 1st Sess., at 36 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong.,
2nd Sess., Legislative History of the Federal Mine Safety and Health
Act of 1977, at 624 (1978)(emphasis added). Thus, the legislative
history is consistent with the express language of the statute and
fortifies the conclusion that Congress intended to subject to the antidiscrimination provisions of section 105(c) of the Mine Act "any person"
who interferes with a miner's protected rights.
Contrary to the majority's conclusion, the overall structure of
section 105(c) does not otherwise preclude giving effect to the plain
wording of the statute. There is no restriction on the Secretary preventing her from investigating allegations that one of her employees
exceeded the scope of his or her authority and acted in violation of
the Mine Act by interfering with a miner's protected rights. To the
contrary, it is not unusual for a federal agency to investigate complaints of misconduct or illegal conduct by its own employees. Thus,
the fact that an MSHA investigator would be called.on to examine the
alleged illegal conduct of an MSHA employee is not a basis for defeating
a miner's right to engage in protected activity without suffering
harassment or retaliation. Even if the Secretary believed that in
a particular set of circumstances it would be better, for logistical
reasons, if MSHA did not conduct the investigation into the activities
of one of its own employees, she could assign another official of the
Department of Labor or another of her investigatory agencies, e.g., the
Inspector General, to assume this function. Certainly, a miner's
statutory right to engage in safety related activities free from the
threat of retribution cannot be sacrificed simply because the Department
of Labor finds itself in an awkward position.
In sum, nothing in the Mine Act precludes the Secretary from filing
a complaint against an individual employed by MSHA who, after investigation,
is determined to have committed an act of discrimination prohibited under
section 105(c). Further, because no absurd or unworkable result flows
from interpreting section 105(c) in accordance with its express terms,
no ambiguity should be created where none exists so as to preclude giving
effect to the statute's express provisions.

1191

We also disagree with the majority's suggestion that the fact that
the remedies that a discriminatee might seek ag~inst a government
employee who.has acted illegally would not be the "typical" remedies
sought in discrimination cases i.e., backpay and reinstatement, has
some bearing on the outcome of the liability issue presented. First,
the fact that the relief that could be awarded is not "typical" should
not be surprising in view of the fact that the issue raised in this case
is one of first impression. Second, section 105(c)(2) authorizes the
Commission to direct the discriminator "to take such affirmative action
to abate the violation as the Commission deems appropriate, including but
not limited to, the rehiring or reinstatement of the miner to his former
position with back pay and interest." 30 U.S.C. § 815(c)(2)(emphasis
added). Thus, the Mine Act expressly contemplates that the relief
granted to any discriminatee will be tailored to fit the particular
circumstances of the case. In a case such as the present, if illegal
discrimination were ultimately established, appropriate forms of relief
could include an award of damages, the issuance of cease and desist
orders and the imposition of civil penalties.
Conclusion
For the above reasons, we agree with the majority that the administrative law judge must be reversed insofar as he held that MSHA
itself is subject to the provisions of section 105(c). We dissent,
however, from their conclusion that in no circumstances can a section
105(c) complaint be brought against an individual employed by MSHA who
is alleged to have acted in a manner exceeding the scope of his statutory
authority and in violation of section 105(c). We express no opinion as
to whether the allegations in the complaint before us satisfy the criteria
applicable to the determination of whether Wagner's suit is barred by
sovereign immunity. We would remand to the judge for further analysis of
this issue.
Accordingly, we concur in part and dissent in part.

1192

Distribution
W. Challen Walling, Esq.
Penn, Stuart, Eskridge & Jones
306 Piedmont Avenue
P.O. Box 2009
Bristol, Virginia 24203
Jerry Talton, Esq.
222 East Main Street
Front Royal, Virginia

22630

Jerald S. Feingold, Esq
U.S. Department of Labor
Office of the Solicitor
4015 Wilson Blvd., Suite 400
Arlington, Virginia 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1193

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

June 12, 1990

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

Docket No. CENT 89-161-M

J.R. THOMPSON, INC.

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners
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 seg. (1988)("Mine Act"). On
February 6, 1990, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding respondent J.R. Thompson, Inc. ("J.R.
Thompson") in default for its failure to answer the Secretary of Labor's
civil penalty proposal and the judge's order to show cause. The judge
assessed J.R. Thompson civil penalties of $2,485 as proposed by the
Secretary. By letter dated April 27, 1990, addressed to Judge Merlin,
the Secretary requests that this matter be reopened on the grounds that
the parties have settled the case. For the reasons explained below, we
deem the Secretary's submission to be one seeking relief from a final
Commission decision, vacate the judge's default order, and remand for
further proceedings.
On October 18, 1989, the Secretary filed with the Commission a
Complaint Proposing Penalty, in which the Secretary proposed civil
penalties for seven citations issued by the Department of Labor's Mine
Safety and Health Administration ("MSHA") to J.R. Thompson at its
Nunneley Quarry. When no answer to the penalty proposal was filed with
the Commission, the chief judge, on December 19, 1989, issued an order
directing J.R. Thompson to file an answer within 30 days or show cause
why it failed to do so. Judge Merlin entered an Order of Default on
February 6, 1990, after J.R. Thompson failed to file an answer.
On May 1, 1990, the Commission received a letter addressed to
Judge Merlin from the Secretary's counsel, requesting the judge's

1194

approval of a settlement of this case. Attached to the letter was a
copy of a signed settlement agreement stating that the parties have
agreed to the assessment of specified reduced penalties for the alleged
violations, payable in monthly installments, and stating that
J.R. Thompson answered the Secretary's civil penalty petition, but sent
the answer to the Solicitor's Dallas, Texas, office rather than to the
Commission.
Under the Commission's rules of procedure, the party against whom
a penalty is sought must file an answer with the Commission within 30
days after service of the proposal for penalty. 29 C.F.R. § 2700.S(b) &
28. The official record of this case does not contain an answer.
However, the official record of Docket No. CENT 90-8-M contains a copy
of a letter dated November 10, 1989, from Johnny R. Thompson, president
of J.R. Thompson, to the Office of the Solicitor, U.S. Department of
Labor, Dallas, Texas, in which Thompson challenges the penalties
proposed for the violations alleged in this case. The letter was
forwarded to the Commission by counsel for the Secretary, but was
referenced to Docket No. CENT 90-8-M rather than to the present case.
The letter was therefore lodged in the official file of Docket No. CENT
90-8-M and Judge Merlin was unaware of its existence when he issued the
show cause and default orders.
The judge's jurisdiction over the case terminated when his default
order was issued on February 6, 1990. 29 C.F.R. § 2700.65(c). Under
the Mine Act and the Commission's procedural rules, once a decision has
issued, relief from the decision may be sought by filing with the
Commission a petition for discretionary review within 30 days of the
decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a). Because the
judge's decision has become final by operation of law, 30 U.S.C.
§ 823(d)(l), we can consider the merits of the Secretary's submission
only if we construe it as a request for relief from a final Commission
decision incorporating a petition for discretionary review. See
29 C.F.R. 2700.l(b) (applicability of Federal Rules of Civil Procedure
to Commission proceedings); Fed. R. Civ. Pro. 60(b) (relief fromjudgment or order).
J.R. Thompson appears to be a small company proceeding without
benefit of counsel. In compliance with the standards set forth in Fed.
R. Civ. P. 60(b)(l), the Commission has previously afforded such a party
relief from final orders of the Commission where it appears the party's
failure to respond to a judge's order and the party's subsequent default
are due to inadvertence or mistake. See Kelley Trucking Co., 8 FMSHRC
1867, 1868 (December 1986); M.M. Sundt Construction Co., 8 FMSHRC 1269,
1270-71 (September 1986). Here, J.R. Thompson appears to have confused
the roles of the Commission and the Department of Labor in this
adjudicatory proceeding. J.R. Thompson's letter answering the
Secretary's civil penalty petition was apparently mailed to the
Department of Labor's solicitor within the time provided for a timely
answer. Further, counsel forwarded the letter to the Commission on
January 8, 1990, within the time provided for a response to the judge's
show cause order, but, because of counsel's reference to an erroneous
docket number, the letter did not come to the attention of the judge.
Accordingly, we accept the Secretary's submission as a request for

1195

relief from a final order incorporatii.1g by implication a petition for
discretionary review.
We have observed repeatedly that default is a harsh remedy and
that if the defaulting party can make a showing of adequate or good
cause for the failure to respond, the failure may be excused and
appropriate proceedings on the merits permitted. Sundt, 8 FMSHRC at
1271. Here, where J.R. Thompson has proceeded without benefit of
counsel, where the parties agree that J.R. Thompson filed an answer, but
mistakenly filed it with the Solicitor's Office, where counsel for the
Secretary inadvertently submitted a copy of the answer for inclusion in
the official record of CENT 90-8-M, and where the parties may have
subsequently settled the matter, we conclude that, in the interest of
justice, the Secretary and J.R. Thompson should have the opportunity to
present their positions to the judge, who shall determine whether final
relief from the default order is warranted.
For the foregoing reasons, the judge's default order is vacated
and the matter is remanded for proceedings consistent with this order.
J.R. Thompson is reminded to file further documents connected with this
proceeding with the judge and to serve counsel for the Secretary with
copies of its filings. 29 C.F.R. §§ 2700.S(b), 2700.7.

1196

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

June 14, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. WEVA 90-36

v.
BENTLEY COAL COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

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 seg. (1988)("Mine Act"). On
May 31, 1990, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding Bentley Coal Company ("Bentley") in
default for its failure to answer the Secretary of Labor's civil penalty
proposal and the judge's order to show cause. The judge assessed the
civil penalty of $894 proposed by the Secretary. For the reasons that
follow, we vacate the default order and remand this case for further
proceedings.
The judge's jurisdiction over this case terminated when his
default order was issued on May 31, 1990. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a).
Bentley mailed to. the Commission a letter, dated June 4, 1990, that
appears to be its answer to the Secretary of Labor's civil penalty
proposal. Bentley's June 4 letter was received by the Commission on
June 7, 1990. We will treat Bentley's letter as a timely filed petition
for discretionary review. See~· Middle States Resources, Inc.,
10 FMSHRC 1130 (September 1988).
Although Bentley filed a "Blue Card" request for a hearing in this -'
matter, neither its June 4 letter nor any other part of the record

1197

reveals the reasons for its failure .v file its answer within 30 days
after receipt of the Secretary's penalty proposal petition, as required
by 29 C.F.R. § 2700.28, or its failure to respond to the judge's show
cause order. We grant the petition and vacate the judge's default
decision in order to allow Bentley, which is apparently proceeding pro
se, an opportunity to present the reasons for these failures, and for
the Secretary to interpose any objections to relief from the default
decision.

Richard V. Backley,

Co~

~1f:t=

L. Clair Nelson, Commissioner

1198

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

June 14, 1990

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

v.

Docket No. WEVA 90-52

BENTLEY COAL COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

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 seg. (1988)( 11 Mine Act"). On
May 31, 1990, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding Bentley Coal Company ("Bentley") in
default for its failure to answer the Secretary of Labor's civil penalty
proposal and the judge's order to show cause. The judge assessed the
civil penalty of $786 proposed by the Secretary. For the reasons that
follow, we vacate the default order and remand this case for further
proceedings.
The judge's jurisdiction over this case terminated when his
default order was issued on May 31, 1990. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision has issued, relief from the decision may be sought by filing
with the Commission a petition for discretionary review within 30 days
of the decision. 30 U.S.C. § 823(d)(2); 29 C.F.R. § 2700.70(a).
Bentley mailed to the Commission a letter, dated June 4, 1990, that
appears to be its answer to the Secretary of Labor's civil penalty
proposal. Bentley's June 4 letter was received by the Commission on
June 7, 1990. We will treat Bentley's letter as a timely filed petition
for discretionary review. See~· Middle States Resources, Inc.,
10 FMSHRC 1130 (September 1988).
Although Bentley filed a "Blue Card" request for a hearing in this
matter, neither its June 4 letter nor any other part of the record

il99

reveals the reasons for its failure ~v file its answer within 30 days
after receipt of the Secretary's penalty proposal petition, as required
by 29 C.F.R. § 2700.28, or its failure to respond to the judge's show
cause order. We grant the petition arid vacate the judge's default
decision in order to allow Bentley, which is apparently proceeding pro
se, an opportunity to present the reasons for these failures, and for
the Secretary to interpose any objections to relief from the default
decision.

L. Clair Nelson, Conunissioner

Distribution
Ernest R. Mikles, Vice President
Bentley Coal Company
Star Rt., Box 44-C
Coalton, West Virginia 26257
Page H. Jackson, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul :Merlin
Federal Hine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

1200

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

June 18, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. PENN 90-49

HICKORY COAL COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka and Nelson,
Commissioners

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 seg. (1988) ("Mine Act"). On
May 24, 1990, Commission Chief Administrative Law Judge Paul Merlin
issued an Order of Default finding respondent Hickory Coal Company
("Hickory") in default for failure to answer the Secretary of Labor's
civil penalty proposal and the judge's order to show cause. The judge
assessed the civil penalty of $850 proposed by the Secretary. By letter
to the Commission dated May 31, 1990, Hickory requests that this matter
be reopened on the grounds that it mistakenly thought that it had filed
its answer in this proceeding but, in fact, the answer applied to
another Commission proceeding. We deem Hickory's May 31 letter a timely
petition for discretionary review of the judge's default order, grant
the petition, and remand this matter to the judge for further
proceedings.
The judge's jurisdiction in this proceeding terminated when his
default order was issued on May 24, 1990. 29 C.F.R. § 2700.65(c).
Under the Mine Act and the Commission's procedural rules, once a judge's
decision '.has issued, relief from the decision may be sought by filing
with thej.Gommission a petition for discretionary review within 30 days
of the deCiision. 30 U.S.C. § 823(d)(2); 29 C.F .R. § 2700. 70(a). Here,
Hickory 1 s'May 31 letter to the Commission seeks relief from the judge's
default:order and we will treat it as constituting a timely filed
petitio.nJ,for discretionary review. See, ~. Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988).

1201

Hickory appears to be a small co:·. company proceeding without
benefit of counsel. It also appears from the record that Hickory may
have raised a colorable explanation for its failure to respond to the
judge's show cause order. In conformance with the standards set forth
in Fed. R. Civ. P. 60(b)(l), the Commission will afford relief from
default upon a showing of inadvertence, mistake, or excusable neglect.
~.Amber Coal Co., 11 FMSHRC 131, 132 (February 1989).
We are unable on the basis of the present record to evaluate the
merits of Hickory's position but, in the interest of justice, we will
permit Hickory the opportunity to present its position to the judge, who
shall determine whether final relief from the default order is
warranted. See;~· Kelley Trucking Co., 8 FMSHRC 1867 (December
1986).
Accordingly, we vacate the judge's default order and remand this
matter for further proceedings. Hickory is reminded to serve the
opposing party with copies of all its correspondence and other filings
in the matter. 29 C.F.R. § 2700.7.

~~

a~t?r~

Joyce A. Doyle, CommiSSiOJlr

t

Commissioner
Distribution
William Kutsey
Hickory Coal Company
RD Ill , Box 4 7 9
Pine Grove, PA 17963
Susan M. Jordan, Esq.
Office of the Solicitor
U.S. Department of Labor
14480 Gateway Bldg.
3535 Market St.
Philadelphia, PA 19104
Chief Administrative Law Judge Paul Merlin
Federal ML1~ Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006
1202

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

June 28, 1990
JOHN A. GILBERT
v.

Docket No. KENT 86-49-D

SANDY FORK MINING COMPANY, INC.
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of JOHN A. GILBERT
Docket No. KENT 86-76-D

v.

SANDY FORK MINING COMPANY, INC.

BEFORE:

Ford, Chairman; Backley, Doyle, Lastowka, and Nelson,
Commissioners

ORDER
BY THE COMMISSION:
This discrimination proceeding ar1s1ng under the Federal Mine
Safety and Health Act of 1977, 30 U.S. C. § 801 et seg. ( 1988 )("Mine
Act"), is on remand to the Commission pursuant to an opinion of the
United States Court of Appeals for the District of Columbia Circuit
reversing and remanding our prior decision in this matter. John A.
Gilbert v. FMSHRC, 866 F.2d 1433 (1989), rev'g, John A. Gilbert v. Sandv
Fork Mining Co., 9 FMSHRC 1327 (August 1987). In response to the
Court's decision, the Commission resolved at the Commission level all
factual issues remanded by the Court in favor of Gilbert. We ordered a
remand, however, so that Commission Administrative Law Judge Gary Melick
could address remaining remedial issues. 12 FMSHRC 177 (February 1990).
Sandy Fork Mining Company, Inc. ("Sandy Fork") filed a Petition for
Reconsideration requesting that we reconsider our decision entering
factual findings at the review level and that we remand to the
administrative law judge the issues remanded by the Court concerning the
merits of this case. l/ Mr. Gilbert opposes this motion. For the

l/

Sandy Fork's Petition for Reconsideration does not question that
part of the Commission's decision reinstating Gilbert's individual

1203

reasons set forth below, the Petition for Reconsideration is granted.

~/

The facts and procedural history of this proceeding are set forth
in detail in the Conunission's prior decisions and will not be repeated
here. See 9 FMSHRC 1327 (August 1987) and 12 FMSHRC 117 (February
1990). Following an evidentiary hearing, the administrative law judge
determined that Sandy Fork had not violated section 105(c)(l). 8 FMSHRC
1084 (July 1986). The Conunission affirmed his decision on substantial
evidence grounds. The Court reversed the Conunission's decision and
remanded the case back to the Conunission for further consideration.
The Court raised a number of specific questions to be resolved by
the Conunission. The Court explained:
On the record as we understand it, it is plain
that Gilbert made a good faith attempt to
conununicate his reasonable fears to management.
What is not clear, however, is whether management
addressed Gilbert's concerns in a way that his fears
reasonably should have been quelled. In other
words, did management explain to Gilbert that the
problems in his work area had been corrected? Or
did management indicate to Gilbert that he would be
assigned to another area in the mine that was free
of safety problems? Or did management indicate to
Gilbert that the situation was unsettled, and that
he should wait five hours (until the start of his
assigned shift) before inquiring further about
safety conditions in his area? These questions must
be answered by the Conunission in order for it to
determine whether the management at Sandy Fork
reasonably addressed Gilbert's fears on the morning
of August 7. If management effectively
"stonewalled" Gilbert in responding to his inquiries
on the 7th, then his continued fears regarding work
hazards were reasonable, and his refusal to return
to work cannot be viewed as either unreasonable or
in bad faith. On remand, the Conunission will be
required to make the necessary factual findings to
address these issues.
complaint brought under section 105(c)(3) of the Mine Act, 30 U.S.C.
§ 815(c)(3).
12 FMSHRC at 182-83. In its original decision, a majority
of the Conunission had granted the Secretary of Labor's motion to dismiss
the complaint brought by Gilbert on his own behalf. The Court reversed
this conclusion. In light of the Court's decision, in our February 16,
1990 decision we reinstated Gilbert's private complaint. That aspect
of the Conunission's decision is not affected by this order.
~/

Sandy Fork petitioned for review of the Conunission's February 16,
1990 decision with the U.S. Court of Appeals. Sandy Fork Mining
Company, Inc. v. John A. Gilbert, No. 90-1145 (D.C. Cir. filed March 19,
1990). This proceeding has been stayed pending the Conunission's
consideration of the Petition for Reconsideration.

1204

866 F.2d 1441 (footnote omitted).
On remand, the Commission discussed the evidence and concluded
that Gilbert's safety concerns were not addressed by Sandy Fork in a
manner sufficient to reasonably quell his fears. 12 FMSHRC at 180-81.
The Commission determined that given the Court's belief that Gilbert did
not act precipitately and its finding that he entertained a good faith,
reasonable belief in a hazard, Gilbert's departure from the mine
constituted a discriminatory constructive discharge in violation of
section 105(c)(l) of the Mine Act. Id.
In its Petition for Reconsideration, Sandy Fork argues that, given
the nature of the record in this case and the questions posed by the
Court, the Commission should have remanded the case to the trier of fact
for the "necessary factual findings" ordered by the Court. It suggests
that the findings may turn on the demeanor or credibility of the
witnesses and that the administrative law judge is in the appropriate
position to make such determinations. In addition, it argues that the
Commission exceeded the scope of its authority under the Mine Act by
engaging in independent fact finding at the review level. In reply,
Gilbert argues that the Commission's decision on remand was mandated by
the undisputed testimony of record, that it was unnecessary to remand
the case to the administrative law judge, and that the Commission was
within its authority in making the narrow determinations ordered by the
Court.
Further proceedings before the administrative law judge are
already necessary pursuant to our remand order of February 16, 1990.
Sandy Fork has explained with some force its concern that the
administrative law judge, who is familiar with the witnesses and the
testimony, was not given an opportunity to "make the necessary factual
findings" ordered by the Court's remand. Although we do not agree with
Sandy Fork's contention that the Commission was required under the
circumstances to remand this issue to the judge, upon reconsideration
and in the exercise of our discretion, we believe it is more appropriate
to do so in order to assure that all parties are given a full and fair
opportunity to respond to the Court's order. Therefore, we grant Sandy
Fork's Motion for Reconsideration and remand this proceeding to the
judge to respond to the Court's remand on the merits of Gilbert's
complaint. To the extent, however, that Sandy Fork is requesting that
the record be reopened for the introduction of further evidence in this
case, the motion is denied. The record was fully developed in the
hearing before the administrative law judge. All that is necessary at
this juncture is the entry of further findings.

1205

For the foregoing reasons, we vacate that portion of our decision
of February 16, 1990, resolving the merits of Gilbert's discrimination
complaint.. We remand this matter to the judge for determination, on the
existing record, of the issues raised by the Court on the merits of
Gilbert's discrimination complaint, as set forth above, and for
determination of any outstanding remedial issues •

.~/~

Richard V. Backley, Commissione¥

&e;~er
L. Clair Nelson, Commissioner
Distribution
Tony Oppegard, Esq.
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, Kentucky 41701
Ronald E. Meisburg, Esq.
Smith, Heenan & Althen
1110 Vermont Ave., N.W.
Washington, D.C. 20005
Colleen A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22204
Administrative Law Judge Gary Melick
Federal Mine Safety and Health Review Commission
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, Virginia 22041

1206

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

JUN 5 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 89-92-M
A.C. No. 20-00024-05514
Monroe stone Quarry

FRANCE STONE COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Broderick

Following remand of this case to me by the Review
Commission, the parties on May 29, 1990, filed a Joint Motion to
Amend Settlement, Approve Amended Settlement and Dismiss.
The two violations charged in this proceeding were
originally assessed at $2000 and $10,000. The motion states that
the parties agree to settle for the amounts originally assessed.
Citation 3265648, charging a violation of 30 C.F.R. §
56.14131 because of the failure of the operator of a haul truck
to wear seat belts, was assessed at $2000. The parties agree
that Respondent demonstrated a low degree of negligence in that
it would have been extremely difficult for Respondent to know
that the operator was not wearing seat belts. The violation was
significant and substantial.
Citation 3265649, charging a violation of 30 C.F.R.
56.9301 because a berm or bumper block to prevent overtravel
was not provided at the top edge of a dumping location, was
assessed at $10,000. The parties agree to amend the § 104(d) (1)
citation to a § 104(a) citation and to reduce the negligence from
high to moderate because, while Respondent had established a rule
and practice of not permitting haul trucks to dump in areas above
loading operations, it was not followed in this case. A fatality
occurred when a haul truck backed over the edge of a stock pile
ramp. The parties agree that the violation is significant and
substantial in that dumping above a loading area creates a
reasonable probability of a reasonably serious injury or death.
The parties agree that Respondent asserts and the evidence shows
that employees unsuccessfully tried to warn the truck driver
§

1207

prior to the accident that he was about to dump at a hazardous
place on the stockpile.
The parties further agree that except for these proceedings,
and any other subsequent MSHA proceedings between the parties,
none of the foregoing agreements; ~tatements, findings, and
actions taken by Respondent shall be deemed an admission by the
Respondent of allegations contained within the citations. The
agreement, statements, for the purpose of compromising and
settling this matter economically and amicably, and they shall
not be used for any other purpose whatsoever, except as herein
stated.
I have considered the motion in the light of the criteria in
section llO(i) of the Act and conclude that it should be
approved.
Accordingly, the Motion to Amend Settlement and Approve
Amended Settlement is GRANTED. The Amended Settlement is
APPROVED and Respondent is ORDERED to pay the sum of $12,000
within 30 days of the date of this order.

t

1

fl!U!s

~{'?,,d:rr-c~-K_·

James A. Broderick
Administrative Law Judge

Distribution:
Rafael Alvarez, Esq., U.S. Department of Labor, Office of the
Solicitor, 230 South Dearborn Street, 8th Floor, Chicago, IL
60604 (Certified Mail)
Henry Chajet, Esq., Jackson & Kelly, 1701 Pennsylvania Avenue,
N.W., Suite 650, Washington, D.C. 20006 (Certified Mail)
slk

1208

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

JUN 5 1990
JOSEPH PELEHAC, JR.,
Complainant
v.

DISCRIMINATION PROCEEDING
Docket No. PENN 89-226-D
MSHA Case No. PITT CD 89-15

CONSOLIDATION COAL COMPANY,
Respondent

Dilworth Mine
DECISION

Appearances:

Edward D. Yankovich, Jr., President, UMWA District
No. 4, Masontown, Pennsylvania; Michael J. Healey
and Paul Girdany, Esqs., HEALEY WHITEHILL,
Pittsburgh, Pennsylvania, for the Complainant;
Walter J. Scheller, III, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint filed by
the complainant Joseph Pelehac against the respondent pursuant to
section 105{c) of the Federal Mine Safety and Health Act of 1977,
(the Act). Mr. Pelehac filed his initial complaint with the
Secretary of Labor, Mine Safety and Health Administration (MSHA),
and he was advised by MSHA that after review of the information
gathered during its investigation of his complaint, MSHA determined that a violation of section 105(c) had not occurred. A
hearing was held in Washington, Pennsylvania, and the complainant
filed a posthearing brief.
The respondent did not file a brief,
but I have considered all of the oral arguments made by the
parties during the course of the hearing.
The complainant contends that the respondent discriminated
against him when it refused to pay him wages or overtime pay
after he was required to remain at work after his normal work
shift on 3 days in order to be interviewed by company safety
officials in connection with a company accident investigation, ·
and to give testimony in the course of an MSHA accident investigation.
The complainant asserts that two of his fellow miners

1209

who participated in the accident investigation were paid overtime
for the extra time they were required to stay over beyond their
normal shifts, and that the respondent's refusal to pay him was
based on th_e fact that his testimony was not favorable to the
respondent and did not absolve the respondent of all responsibility for the accident.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seg.
2. Sections 105(c) (1), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815(c) (1), (2) and
( 3) •

3.

Commission Rules, 29 C.F.R.

§

2700.l, et seg.

Issue
The issue presented in this case is whether or not the
respondent's refusal to pay the complainant for his time beyond
his normal work shifts during the accident investigations constituted illegal discrimination under the Act. Additional issues
raised by the parties are disposed of in the course of my adjudication of this matter.
Complainant's Testimony and Evidence
Complainant Joseph Pelehac confirmed that on Tuesday,
January 24, 1989, an accident occurred on one of the barges where
he was working. His normal quitting time was 2:15 p.m., but mine
superintendent Louis Barletta informed him that he could not
leave the mine because safety inspectors were on their way to
investigate the accident. Mr. Pelehac stated that he did not
leave work until 5:45 p.m., and was not paid for the extra hours
he was required to stay at work that day.
Mr. Pelehac stated that he was scheduled to work the
12:01 a.m. night shift on Tuesday, January 24, 1989, but since he
got home so late, he asked Mr. Barletta if he could work the day
shift on Wednesday, January 25, 1989, and Mr. Barletta agreed.
Mr. Pelehac stated that he reported to work at 8:00 a.m., that
morning, but was called out of the mine to be interviewed by the
inspectors. After speaking with an inspector for an hour, he
returned to work and finished his work shift at 4:00 p.m., and
was paid for the entire shift, including the hour he spent with
the inspector. After finishing his work, he was again required.
to stay over to speak with the inspectors, and remained at the
mine for approximately 2 hours beyond his normal 4:00 p.m.,
quitting time, and was not paid for these extra hours. He was

1210

also required to stay two extra hours on Thursday, January 26,
1989, and was not paid.
Mr. Pel·ehac stated that he has worked at the mine for
12 years, and has worked for the respondent for six years. He
confirmed that he has worked overtime "off and on" during these
years, was always paid when asked to stay over, and has always
assumed that he would be paid when told by management to stay.
The instant case was the first time he was told to stay and was
not paid. He conceded that this was the first time he was asked
to stay to participate in an accident investigation (Tr. 8-14).
The parties stipulated that during the 3 days in question
when Mr. Pelehac was requested to stay over to be interviewed by
the accident investigators or mine management, he performed no
work in his regular job classification (Tr. 16-17).
Mr. Pelehac confirmed that he made no safety complaint
concerning the accident (Tr. 18). Respondent's counsel pointed
out that the first day Mr. Pelehac was required to stay over,
January 24, 1989, was in connection with the accident investigation conducted by mine management to ascertain the facts, and
that the following 2 days, January 25, and 27, 1989, were in
connection with the accident investigation conducted by the state
and Federal mine inspectors (Tr. 20; 68). Mr. Pelehac confirmed
that this was the case (Tr. 22-24).
Mr. Pelehac conceded that when he filed his initial complaint with MSHA on March 10, 1989, he did not allege that he was
not paid because he gave unfavorable testimony against the
respondent, and simply stated that he was discriminated against
because he was not paid for the extra time he stayed at work (Tr.
25). When asked why he not mentioned his "unfavorable testimony"
allegation, he responded "I didn't think it was necessary'' (Tr.
26) .
Mr. Pelehac stated that the respondent was attempting to
establish that the accident victim, Paul Bandish, had violated a
safety procedure when he was injured and that his injuries were
the result of his violation. Mr. Pelehac believed that the
respondent refused to pay him for the extra hours in question
because "because I couldn't give testimony to the fact to say
that he was doing something wrong" (Tr. 27). Mr. Pelehac confirmed that no one from management ever suggested or inferred
that he should testify "one way or the other" (Tr. 28).
Mr. Pelehac did not believe that Mr. Bandish violated any
safety rules, and he stated that he (Pelehac) was only a trainee
and that Mr. Bandish was training him to take his job.
Mr. Pelehac stated that he had no idea why the respondent may
have taken the position that Mr. Bandish may have violated a

1211

safety rule and caused the accident (Tr. 28).
explained as follows at (Tr. 28-29):

He further

A. In the investigation they kept saying like, you're
sure he didn't do this, you're sure he didn't do that,
you're sure he didn't hit this thing with a hammer
instead of doing it the proper way. And I said, no.
They kept inferring, did he hit this with a hammer, did
he hit this with a hammer.
JUDGE KOUTRAS:
A.

And I said no.

JUDGE KOUTRAS:
A.

Okay.

Who?

Lou in particular said that several times.

JUDGE KOUTRAS: How about during the investigation on
the 25th and the 26th by the MSHA and State people?
Did those inspectors or investigators ask you the same
questions?
A.

No.

I don't believe they ever asked me.

JUDGE KOUTRAS:

Okay.

A.
But on each day he asked me or someone from management asked me.
Mr. Pelehac confirmed that he filed a grievance with his
foreman over the pay issue, and that after he was informed that
the respondent had no contractual obligation to pay him, this
"ended" his grievance (Tr. 30).
Mr. Pelehac confirmed that the respondent was not served
with any violations as a result of the testimony which he gave
during the accident investigation. He believed that it would be
in the respondent's best interest to try and establish that
Mr. Bandish was negligent and "that they would want me to say
that he did, in fact, do something wrong which I wasn't on the
job long enough to know if he did something wrong or not" (Tr.
33). He confirmed that no one from management ever suggested
that he not tell the truth (Tr. 34).
Mr. Pelehac believed that the repeated questioning by
management was for the purpose of determining whether or not
Mr. Bandish may have been negligent or violated any safety rule.
that resulted in his injuries in order to mitigate the respondent's liability, and that he did not find this unusual (Tr. 35).
When asked to specify any testimony on his part that he believed
would have been damaging to the respondent, Mr. Pelehac responded

1212

as follows (Tr. 35): "Because if Mr. Bandish tries to assume at
a later date, which I don't believe he has yet, they would have
evidence that I, in fact, said that Mr. Bandish did violate a
safety rule."
Mr. Pelehac stated that he gave no testimony which would
indicate that Mr. Bandish violated any safety rule, and he
believed that the respondent suspended Mr. Bandish for 5 days,
effective when he returned to work, but that to his knowledge,
Mr. Bandish has not returned to work since he is still recovering
from his injuries (Tr. 36). Mr. Pelehac confirmed that
Mr. Bandish contested his 5-day disciplinary suspension through
arbitration, and that he (Pelehac) testified at the arbitration
hearing held on November 13, 1989, and that the decision of the
arbitrator is still pending (Tr. 38). Mr. Pelehac further confirmed that he was again questioned by the respondent during the
arbitration hearing (Tr. 38).
Mr. Pelehac stated that he filed a "verbal grievance"
because he was not paid for the time he spent during his accident
investigation questioning, and it was verbally denied when his
foreman who considered the grievance made a determination that
the labor-management contract did not provide for such payments.
Mr. Pelehac confirmed that he did not further pursue the grievance (Tr. 40; exhibit R-1).
Respondent's Testimony and Evidence
Louis Barletta, Jr., respondent's mine superintendent,
testified that Mr. Pelehac has never filed any safety grievances
or made any safety complaints, and that he considers him to be a
good employee. Mr. Barletta stated that after being informed of
the accident he went to the scene and observed Mr. Bandish
receiving medical attention, and he spoke with Mr. Pelehac and
two other employees, and requested Mr. Pelehac to remain after
his normal work shift on January 24, 1989. Mr. Barletta
explained that Mr. Bandish's injuries did not initially appear to
be serious, but when it was later determined from the hospital
report that they were, MSHA and the appropriate state agency were
informed of the accident.
Mr. Barletta stated that he conducted the respondent's
accident investigation and that it began at 1:15 or 1:30 p.m.,
shortly after Mr. Bandish was taken to the hospital, and he spent
the rest of the day on his investigation. After Mr. Pelehac left
the mine, MSHA and the state inspectors arrived at the mine, and
Mr. Barletta was involved in the investigation until 9:30 p.m.
that day, and it continued on January 25-27, 1989, and a few days
in February (Tr. 50). He confirmed that Mr. Pelehac was not
interviewed by the inspectors on January 24, and that he had
requested to go home before the inspectors arrived, and he permitted him to leave (Tr. 50). Mr. Barletta stated that at the

1213

time he conducted his interviews up to 5:00 p.m., on January 24,
he did not believe that the accident would be investigated by
MSHA (Tr. 51).
Mr. Barletta stated that he investigated the accident
because it was the second serious accident in 15 years, and that
since he was the superintendent, it was his responsibility to
investigate accidents, and it was important for him to know how
Mr. Bandish was injured. He confirmed that in addition to
Mr. Pelehac, he also interviewed dockman Dan Bailey and barge
loader operator Ronnie Seliga. He was not sure whether or not
Mr. Bailey and Mr. Seliga remained over their normal work shift
hours and stated that "I'm not positive but I know they are not
paid for the investigation unless it was on their normal shift"
(Tr. 52). He confirmed that Mr. Pelehac made no complaints about
the accident in question (Tr. 52).
Mr. Barletta confirmed that in prior instances when he has
requested to speak to miners before or after their work shifts,
they were never compensated for their time because company policy
only requires that employees be paid for work performed, and that
investigations, counselling, matters dealing with employee problems, including discipline, are not considered to be "work performed," and that no one has been compensated for the time spent
on such matters (Tr. 53).
In response to certain bench questions
concerning an employee's refusal to stay over and beyond his
normal work shift unless he were paid, Mr. Barletta responded as
follows (Tr. 53-54):
JUDGE KOUTRAS:
Can I just ask one question? What
happens if an employee declines to stay? He says, I'm
not getting paid, I'm not staying.
A. Well, I don't believe that case ever occurred to
me.
I could answer that if it would.
JUDGE KOUTRAS:

Answer it in a hypothetical.

A.
If it would, I would give them a direct work order
to make them stay.
JUDGE KOUTRAS: How can you give them a work order if
he's not going to do any work?
A.

*

Okay.

*

*

*

*

*

A.
It depends on the situation.
It would depend on
the situation.
I have had people saying they couldn't
stay because they had other engagements. Then I would
talk to them at the start of the next shift.

1214

*

Mr. Barletta stated that an employee must report any accident on his shift to his supervisor prior to the end of the
shift, and no later than the end of the shift. An employee must
also fill out an accident report, and if this occurs after his
normal shift, the report is reviewed with the employee, and he
may be "tagged" to stop by the office at the end of his shift.
The employee would not be compensated for his time because there
are no contractual requirements for payment for time spent
investigating accidents before or after a shift (Tr. 55).
Mr. Barletta testified that in September, 1988, he conducted
an investigation of an incident involving an employee who was
observed walking under an unguarded belt conveyor, which resulted
in an imminent danger order issued by an MSHA inspector (exhibit
R-3). He confirmed that the employee was suspended for 3 days
without pay, and that during his investigation of the incident,
the employee was asked to stay after her normal work shift for
2 days.
The employee stayed over for 45 minutes after her shift
on September 1, and for approximately 30 minutes on September 2,
and she was not compensated for this time (Tr. 60-61).
Mr. Barletta stated that on Wednesday, January 25, 1989, an
MSHA investigator began his formal accident investigation, and
through a prior agreement with Mr. Pelehac, he was working the
daylight shift that day. He was called out of the mine at
9:00 a.rn., because the MSHA inspector wanted to hear his accident
testimony. Mr. Pelehac was questioned by the inspector, management, and the mine safety committee, and then returned to his
underground job assignment (Tr. 63).
That evening, Mr. Pelehac
was requested to stay over because another MSHA special investigator was corning to the mine and wanted to speak with witnesses.
Mr. Barletta stated that he informed the inspector by telephone
before he arrived that Mr. Pelehac was the only eye witness, and
the inspector requested an opportunity to speak with him.
Mr. Barletta then advised Mr. Pelehac that he was requested to
stay at the end of his shift to testify about the accident (Tr.
64, exhibit R-2, MSHA accident report of investigation).
Mr. Barletta stated that the MSHA, state, and company investigation continued on Thursday, January 26, and Mr. Pelehac was
not interviewed that day (Tr. 65). Mr. Barletta confirmed that
Mr. Pelehac's claim for pay for 2 hours on January 26, is in
error, and that he confused the days, and that the correct day
for this claim should be Friday, January 27 (Tr. 67).
Mr. Pelehac's representative confirmed that this was the case,
and that the correct day was January 27 (Tr. 68).
Mr. Barletta stated that Mr. Pelehac requested to return to
his normal midnight work shift, and that he worked that shift on
January 27, from 12:01 a.rn. to 8:00 a.rn. Mr. Barletta requested
Mr. Pelehac to stay over because the MSHA inspector requested

1215

that he be available for testimony that morning during the continuing investigation. The investigation meeting was conducted
by the MSHA inspector and special investigator, and other than
their normal onshift work time, no one was compensated for the
time spent during the investigation because of the company practice and policy pursuant to the contract that does not allow
compensation for people involved in accident investigations (Tr.
69) •

Mr. Barletta identified exhibit R-4, as the list of people
who participated in the MSHA accident investigation, and the time
sheets of the employees who were interviewed and questioned. He
confirmed that none of these employees were paid for any time
other than their regularly scheduled work times (Tr. 70-71).
Mr. Barletta confirmed that there have been other instances
when MSHA has conducted investigations and miners were questioned
after their work shift and were not compensated, and that this
was a common occurrences in instances where miners have filed
safety complaints pursuant to section 103(g) of the Act, and
requested an MSHA investigation (Tr. 73). He stated that this
occurred on April 13, 1989, when seven hourly and salaried
employees working on the midnight shift were requested to stay
over by MSHA and state inspectors who were conducting a section
103(g) investigation, and that none of these employees were
compensated for the time spent during that investigation (Tr. 74,
exhibit R-5). Although some of the time sheets for these
employees reflects overtime pay, he explained that "there is some
overtime but that was for production purposes because we do not
change in the face on two or three hourly employees in question."
He reiterated that management did not pay any of these employees
for the time spent on the investigation, nor has it paid any
overtime for such time (Tr. 74). He also confirmed that compensation has never been paid for extra time spent on state or
company investigations (Tr. 75).
When asked about Mr. Pelehac's belief that he was discriminated against because his testimony did not absolve the respondent of liability for the accident, and whether he would have
been paid if his testimony was "favorable," Mr. Barletta
responded as follows (Tr. 75-77):
A.
I can't say his testimony was unfavorable.
Favorable or unfavorable, no, I wouldn't have paid him
either way. There was no reason to based on my policy
and the policy Consolidation Coal has.
But his testimony --- I can't do --- whoever determined it was
unfavorable, I don't know. He basically said that he
saw nothing of the accident. He turned his back and it
happened. He turned around, the man was injured.

1216

Q. Mr. Pelehac stated during his testimony that you
- repeatedly asked him about hammering and, in essence,
that you were harassing him. Could you tell us why you
were asking him about the accident?
A.
I repeatedly asked him about a hammer. The reason
I asked him about a hammer, that I observed a hammer
laying on the landing on the empty side of the dock and
Mr. Pelehac observed it too after I pointed it out to
him. Our employees were trained not to use a hammer to
knock down and bring them loose while it was under
tension. Mr. Pelehac stated to me on the 24th he was
informed by the victim, Mr. Bandish, and another person
training him, you don't ever hit it while under
tension.
When we looked --- when I say we looked,
Consolidation Coal Company, and their employees looked
at the accident scene, there was no hammer on the
barges which came out in the testimony and the MSHA
report.
But the concern was that when the accident
scene was recreated, the rope, the chain and the rachet
assembly all functioned properly.
And later on that evening it was found out by Rich
Werth, W-E-R-T-H, he is a safety inspector for management at Dilworth Mine, there were statements made at
the hospital by the victim. And that's why the question was asked so many times. The statements made at
the hospital by the victim was that he's never screwed
up, and he used other four letter words, so bad that he
beat high, he beat low, he beat high and everything
just blew apart. And the victim said

*

*

*

*

*

*

*

A.
I had a reason to question it and I continue to
question it.
JUDGE KOUTRAS: You suspected that the accident victim
may have beat on this thing with a hammer?
A.

Yes, sir.

On cross-examination, Mr. Barletta stated that he requested
Mr. Pelehac to stay over his normal work shift hours on one day
for his own investigation, and for 2 days for MSHA's investigation. When asked whether he makes it clear to an employee that.
such requests are a "direct work order," Mr. Barletta responded
that this is not needed because "our employees should be responsible enough that they will do what they are told" (Tr. 78).

1217

Mr. Barletta reviewed the time sheets of Tuesday,
January 24, 1989, for Mr. Pelehac, Mr. Bailey, and Mr. Seliga,
and he explained the entries made (Tr. 78-80, exhibit R-4). He
confirmed that he shut the dock loading facility down when the
accident occurred in order to investigate it and to prevent
further accidents (Tr. 81). He also confirmed that he probably
ordered a foreman to tell Mr. Pelehac that he was requested by
MSHA to stay over on January 25 and 27, for the investigation
(Tr. 82).
Mr. Barletta confirmed that the accident occurred at approximately 1:00 p.m., on January 24, and he, rather than MSHA,
requested Mr. Pelehac to stay over beyond his normal quitting
time at 2:15 p.m. (Tr. 85). In response to further questions on
direct, Mr. Barletta confirmed that Mr. Pelehac performed no work
in his job classification after his normal work shift ended on
January 24, but that Mr. Bailey, who was asked to work a double
shift for an employee who was absent, worked in his own job
classification for nine and three-quarter hours during the entire
shift. Mr. Barletta stated that in the course of the investigation, some of the witnesses were interviewed during their work
shifts and were paid, including Mr. Pelehac who was called out of
the mine on the morning of January 25, and that this was analogous to Mr. Bailey being paid when he was interviewed while
working a double shift. With regard to Mr. Seliga, who was
scheduled to work overtime every day of the week of January 23,
although he was required to perform his work, he did not do so
because the facility was shutdown, and he was not present to be
interviewed (Tr. 86-88).
In response to questions concerning the time sheets and
hours recorded for Mr. Pelehac, Mr. Bailey, and Mr. Seliga,
Mr. Barletta further explained the time entries. He stated that
Mr. Bailey's participation in the accident investigation consumed
approximately 30 minutes, and Mr. Seliga consumed approximately 5
to 10 minutes because he observed nothing at the time of the
accident. He further stated that Mr. Bailey and Mr. Seliga were
both performing work during his investigation, but that
Mr. Pelehac stayed with him (Barletta) for 3-1/2 hours while
trying to resolve how the accident occurred. Mr. Barletta could
not explain why Mr. Pelehac's time sheet for January 24, showed
an entry for 3 hours overtime, and was then scratched out and
initialed by the individual who signed the sheet (Tr. 89-102).
Mr. Pelehac was recalled in rebuttal, and he testified that
on the afternoon of the accident on January 24, 1989, from
2:15 p.m. until 5:00 p.m., no coal was loaded on the barges. He
stated that Mr. Bailey and Mr. Seliga were present with him,
.
Mr. Barletta, and other management personnel during the questioning of the barge specialist which took place until he went home
at 5:45 p.m. Mr. Pelehac stated that he assisted in carrying out
the accident victim on a stretcher, and Mr. Bailey and Mr. Seliga

1218

were assigned no other work duties, and he did not observe them
doing any work.
He further confirmed that no one did any work,
and that "everything was left alone just the way it was, I guess,
to preserve the evidence so the barge specialist from Clariton
could come up and look at it." Mr. Bailey and Mr. Seliga were
with him the entire time "in a group" (Tr. 112-113).
Complainant's Arguments
In his closing arguments at the hearing, the complainant's
representative argued that Mr. Barletta's testimony reflects that
Mr. Bailey and Mr. Seliga, two employees who were involved in the
accident investigation, were compensated for their time, but that
the complainant was not.
The complainant concluded that he was
discriminated against because he did not supply the testimony the
respondent was seeking with respect to the employee who was
injured.
Complainant asserted that he was repeatedly questioned
by the respondent's management in an effort to have him say that
the injured employee caused the accident by beating on the pelican hook with a hammer.
The complainant further argued that the respondent failed to
provide a satisfactory explanation as to why the other two
employees (Bailey and Seliga) were paid, or why the complainant's
time sheet on the day of the accident initially reflected 3 hours
of overtime, and then subsequently marked out.
He also pointed
out that the complainant testified that Mr. Bailey and Mr. Seliga
were with him the entire time on the day of the accident (Tr.
114-118) .
In a posthearing brief filed on his behalf by counsel who
entered a simultaneous appearance when they filed the brief,
complainant asserts that he had been ordered in the past to
remain past the end of his workshift by supervisors, but that the
3 days in question were the only times that he had ever been
ordered to remain past the end of his workshift and received no
overtime pay compensation.
The complainant points out that Mr. Bailey and Mr. Seliga
also remained past the end of their shifts to assist in the
accident investigation of January 24, 1989, and were compensated
in overtime wages for their time.
Complainant asserts that the
respondent never offered a plausible explanation for this disparate treatment, and the fact that the respondent repeatedly and
unsuccessfully tried to elicit testimony and information from him
that the accident victim, through his own negligence, had caused
the accident becomes extremely relevant.
The complainant argues that section 105(c) of the Act protects miners against retaliation by mine operators for their
exercise of safety rights protected under the Act, and that
section 105(c) (1) specifically protects a miner who "has

1219

testified or is about to testify" in any proceeding "under or
related to this chapter" or one who has exercised "any statutory
right afforded by this chapter." Complainant asserts that it is
undisputed· that he was interviewed by MSHA inspectors, and that
he assisted in the investigation and provided information to MSHA
during its investigation of the January 24, 1989, accident.
Complainant takes the position that such participation on his
part is akin to delivering testimony in an MSHA proceeding and is
clearly one of the statutory rights afforded by the Act.
Citing several NLRB decisions under the Labor Management
Relations Act, the complainant asserts that the NLRB has consistently held that participation and assistance in NLRB investigations by an employee, even when such employee has not actually
filed charges or testified in any formal proceedings, is protected activity which an employer may not retaliate against in
any way, whether through disciplinary action or failure to pay
proper wages.
Complainant concludes that it is clear that he
engaged in protected activities under the Act when he stayed past
the end of his shift on the 3 days in question to assist in the
investigation of the January 24, 1989, accident.
The complainant maintains that he exercised his protected
rights by submitting to the interviews during the course of the
accident investigation, and that the respondent was aware of the
exercise of those rights but refused to pay him for the hours he
remained at the mine despite the fact that it had ordered him to
remain at work to assist in the investigation. Complainant
concludes that the respondent's refusal to pay him overtime wages
was an act of discrimination because there was no legitimate
business reason not to do so.
Complainant argues that the cooperation of witnesses in
accident investigations is essential for proper administration
and enforcement of the Act, and he concludes that the refusal of
the respondent to pay him for his time discourages witness
cooperation and constitutes discrimination and impairs enforcement of the Act.
Complainant cites a West Virginia Supreme Court of Appeals
decision in carpenter v. Miller, 325 S.E. 2d 123 (1984), involving a state law similar to section 105(c) (1) of the Act.
Complainant asserts that the court held that the withholding of
compensation by employers from a miner who testifies at a mine
safety proceeding is a form of discrimination prohibited by the
statute, and that coal companies were required to fully compensate each miner whose pay was docked on days they testified in a
mine safety proceeding.
Complainant also cites a decision by Commission Judge
William Fauver in Joseph G. DeLisio v. Mathies Coal Company,
11 FMSHRC 2353 (November 1989), holding that the failure by a

1220

mine operator to pay a miner the difference between his regular
daily wage and the $30 statutory witness fee he received for
appearing as.a subpoenaed witness on behalf of MSHA in a
Commission proceeding constituted a violation of section 105(c)
of the Act.
In that case, Judge Fauver held that the operator's
refusal to pay the wages of the miner who testified against it at
the hearing, while at the same time paying the wages of other
miner witnesses who testified on its behalf, constituted discriminatory treatment of witnesses in violation of the Act.
The complainant concludes that the public policy in the Act
favors far ranging enforcement of its provisions, and that one
manner of enhancing enforcement is the ability to interview
employees/witnesses who will provide first hand information about
the cause and circumstances surrounding mine accidents. The
complainant believes it is clear that if a witness/employee must
remain on the mine site after he has completed a full work shift
in order to be accessible to MSHA investigators, that there will
be less incentive for him to remain at the mine site if he must
give up several hours of his free time without receiving any
compensation after having completed a full work shift, and that
this obviously undercuts the public policy embodied in the Act.
Respondent's Arguments
In his closing oral arguments, the respondent's counsel
asserted that the complainant has not establish that he engaged
in any protective activity under the Act, made no safety complaint, and that the respondent took no adverse action against
him because of any protected activity on his part on January 24,
1989. With regard to the other 2 days, counsel asserted that the
accident investigation was an official MSHA investigation, that
the respondent was not in charge, and that the MSHA inspectors
requested that the complainant be present for testimony.
Counsel
concluded that the complainant has failed to establish any
qdverse motive by the respondent, and has not established that he
was treated any differently than any other employee.
Counsel further asserted that the work time sheets show that
the union has paid its safety committeemen for union business
during the accident investigation, while the respondent did not.
Counsel suggested that the union could have paid the complainant
for his time, and that in the event the respondent paid him, his
testimony would have been suspect because someone could point out
that he was paid to give favorable testimony for the respondent.
Counsel pointed out that the respondent does not even compensate
foremen or management personnel for staying over during an accident investigation.

1221

Counsel asserted that any protected activity pursuant to the
Act must be in connection with complaints to MSHA, mine management, or to the union, and that the complainant has not shown
that he engaged in this kind of activity (Tr. 120-124).
Findings and Conclusions
In order to establish a prima facie case of discrimination
under section 105(c) of the Mine Act, a complaining miner bears
the burden of production and proof to establish (1) that he
engaged in protected activity and (2) that the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Fasula v. Consolidation Coal Company,
2 FMSHRC 2768 (1980), rev'd on other grounds sub nom.
Consolidation Coal Company v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Company, 3 FMSHRC 803 (1981); Secretary on behalf of Jenkins v.
Hecla-Day Mines Corporation, 6 FMSHRC 1842 (1984); Secretary on
behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510-2511
(November 1981), rev'd on other grounds sub nom. Donovan v.
Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no way
motivated by protected activity. If an operator cannot rebut the
prima facie case in this manner it may nevertheless affirmatively
defend by proving that it was also motivated by the miner-' s
unprotected activities alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, 4 FMSHRC 1935 (1982). The ultimate burden of
persuasion does not shift from the complainant. Robinette,
supra. See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and Donovan v. Stafford Construction Company, No. 83-1566 D.C.
Cir. (April 20, 1984) (specifically-approving the Commission's
Fasula-Robinette test). See also NLRB v. Transportation
Management Corporation,~~ U.S.~-' 76 L.ed.2d 667 (1983),
where the Supreme Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act.
Direct evidence of actual discriminatory motive is rare.
Short of such evidence, illegal motive may be established if the
facts support a reasonable inference of discriminatory intent.
Secretary on behalf of Chacon v. Phelps Dodge corp., 3 FMSHRC
2508, 2510-11 (November 1981), rev'd on other grounds sub nom.
Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 (June 1984).
As the Eight Circuit analogously stated with regard to discrimination cases arising under the National Labor Relations Act in NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965):

1222

It would indeed be the unusual case in which the
link between the discharge and the [protected] activity
could be supplied exclusively by direct evidence.
Intent is subjective and in many cases the discrimination can be proven only by the use of circumstantial
evidence. Furthermore, in analyzing the evidence,
circumstantial or direct, the [NLRB] is free to draw
any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
The record in this case establishes that while in the course
of his regularly scheduled work duties on January 24, 1989, the
complainant was a witness to a serious, non-fatal injury accident
involving Mr. Paul Bandish, a fellow miner. Although the complainant's normal quitting time was 2:15 p.m., mine superintendent Barletta requested him to stay at the mine in order to be
interviewed by the respondent about the accident. At the conclusion of the interviews, the complainant was released from work
at 5:45 p.m. The following day, January 25, 1989, the complainant was again notified by the respondent that he had to remain at
the mine in order to be interviewed by the respondent and State
and Federal mine inspectors who were conducting an accident
investigation. He was again interviewed and was not released to
go home until after 6:00 p.m. His normal work shift on this day
ended at 4:00 p.m. On January 27, 1989, the complainant was
again required to stay after completing his work shift, to be
interviewed by the respondent and government mine inspectors, and
he was not released to go home until approximately 2 hours later.
The complainant spent approximately 7-1/2 hours past his
normal work times during a 3-day period while being interviewed
as part of the accident investigations conducted by the respondent and State and Federal mine inspectors. Superintendent
Barletta confirmed that if the complainant had declined to stay
and make himself available for the investigations he would have
given him a direct work order to stay. Under the circumstances,
I conclude and find that the complainant's staying over beyond
his normal work shifts on the days in question was involuntary.
Despite his involuntary presence at the mine, the respondent
refused to pay the complainant the overtime wages he would
normally be entitled to if he had remained and worked. These
wages would have been $171.64.
The parties agreed that although the applicable UMWA/management bargaining agreement allows for compensation for safety

1223

committeemen in connection with a fatality, mine explosion, or
disaster inquiry, it does not allow or provide for compensation
for miners who participate in accident investigations which take
place after their normal working shifts (Tr. 102-102).
Complainant's representative confirmed that in the event the
union initiates the investigation, i.g., pursuant to section
103(g) of the Act, a miner may be made an "employee" of the union
for purposes of the investigation, and he would be compensated by
the union for the time spent on the investigation (Tr. 103-104).
This was not done in this case because the union did not initiate
the accident investigation in question (Tr. 104).
The respondent contended that in this case, the union could
have placed the complainant on union business and paid him for
his time after his normal work shift, as it did in the case of
the safety committeemen who participated in the investigation,
but that it did not do so (Tr. 105). The respondent confirmed
that in the event of an MSHA investigation with respect to a
union initiated section 103(g) complaint, an employee who is "on
the clock" is made available to the inspectors (Tr. 106).
Mr. Barletta confirmed that if an inspector requests access to an
employee during his work shift, the employee is made available to
the inspector, and if the request is made by the inspector after
the employee's work shift, management will notify the employee
that the inspector wishes to see him and will request the
employee to stay over (Tr. 107-108).
The complainant asserts that he had been ordered in the past
to remain past the end of his workshift by supervisors, but that
the 3 days in question were the only times he had been ordered to
remain and received no overtime pay. While this may be true, the
complainant conceded that he had never previously been involved
in an accident investigation and had never been asked to stay
over to participate in such an investigation. He also conceded
that when he was asked to stay over in the past, he was paid
overtime for work which he performed, and that at no previous
time during his employment with the respondent was he ever asked
to stay and did not perform his normal work duties (Tr. 12, 16).
The complainant has stipulated that he performed no work in his
job classification on the 3 days that he stayed over to participate in the accident investigation.
The Protected Activity
Section 105(c) (1) of the Mine Act provides in pertinent part
as follows:
(c) (1)
No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner * * *
because such miner * * * has filed or made a complaint

1224

f

under or related to this Act * * * or because such
miner * * * has instituted or caused to be instituted
any proc~eding 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 * * * of
any statutory right afforded by this Act.
A threshold determination to be made in this case is whether
or not Mr. Pelehac was engaged in any protected activity at the
time of the alleged discriminatory act. The alleged discriminatory act is the failure by the respondent to compensate
Mr. Pelehac for the extra time he spent answering questions and
giving information in connection with the accident investigation.
Mr. Pelehac claims that the respondent refused to pay him because
he failed to give favorable testimony absolving the respondent of
responsibility for the accident.
In Donovan v. Stafford Construction Company, 732 F.2d 954
(D.C. Cir. 1984), the court held that an employee was protected
by the Mine Act against retaliation for providing testimony in
connection with an MSHA investigation concerning a discrimination
complaint filed by a miner. The court took a broad view of
section 105(c) of the Act, and stated as follows at 732 F.2d 959:
There can be little doubt that an employee's right
to testify freely in mine safety proceedings encompasses the giving of statements to MSHA personnel
conducting preliminary investigations. * * * Although a
literal reading of the statute might indicate that a
discharge is illegal only if the employee has testified
or is about to testify against the employer, we decline
to adopt such a hypertechnical and purpose-def eating
interpretation. Instead, we hold that an employee's
refusal to agree to provide MSHA investigators with
testimony that the employee in good faith believes to
be false is protected activity, regardless of whether
the employee eventually happens to be asked for a
statement.
In Elias Moses v. Whitley Development Corporation, 4 FMSHRC
1475 (August 1982), the Commission held that the coercive interrogation, harassment, and subsequent discharge of a miner suspected of reporting an accident to MSHA was discriminatory and
constituted a violation of section 105(c) (1) of the Act. The
Commission found that discrimination based upon a suspicion or
belief that a miner has engaged in protected activity, even
though, in fact, he has not, is proscribed by section 105(c) (1).
The Commission stated in relevant part as follows at 4 FMSHRC
1478-1479:
We find that among the "more subtle forms of
interference" are coercive interrogation and harassment

1225

over the exercise of protected rights. A natural
result of such practices may be to instill in the minds
of employees fear of reprisal or discrimination. such
actions may not only chill the exercise of protected
rights by the directly affected miners, but may also
cause other miners, who wish to avoid similar treatment, to refrain from asserting their rights. This
result is at odds with the goal of encouraging miner
participation in enforcement of the Mine Act. We
therefore conclude that coercive interrogation and
harassment over the exercise of protected rights is
prohibited by section 105(c) (1) of the Act. ~
In the footnote noted at 4 FMSHRC 1479, the Commission
stated as follows:
This is not to say that an operator may never
question or comment upon a miner's exercise of a protected right. Such question or comment may be innocuous or even necessary to address a safety or health
problem and, therefore, would not amount to coercive
interrogation or harassment. Whether an operator's
actions are proscribed by the Mine Act must be determined by what is said and done, and by the circumstances surrounding the words and actions.
(Emphasis
added) •
In upholding the judge's finding of discrimination, the
Commission concluded that the persistence with which the subject
of Moses' supposed accident reporting was raised by the operator,
and the accusatory manner in which it was done, could logically
result in a fear of reprisal and a reluctance by Moses to exercise his rights in the future, and therefore constituted prohibited interference under section 105(c) (1).
In Joseph G. DeLisio v. Mathies Coal Company, 11 FMSHRC 2353
(November 1989), Commission Judge William Fauver held that the
withholding of a miner's wages from a miner who is subpoenaed to
testify at a hearing before a Commission judge on behalf of MSHA
and against a mine operator was discriminatory. Judge Fauver
took a broad view of section 105(c) of the Act and held that it
prohibits "any manner'' of discrimination. With regard to the
mine operator's discriminatory motive in refusing to pay DeLisio
the difference between his regular daily wages and the witness
fee paid by MSHA, Judge Fauver found that the refusal by the mine
operator to pay wages to DeLisio, who was an opposition witness,
while at the same time paying the wages of the witnesses who
testified on behalf of the operator, was discriminatory on its.
face and required no further examination of the operator's discriminatory motive.

1226

In the instant case, the evidence establishes that
Mr. Pelehac made no safety complaints to mine management or to
MSHA, and the~e is no evidence that he refused to perform any job
tasks because of any safety concerns, or that he reported or
complained about the accident. He was simply required to remain
beyond his normal work shift in order to testify or give information about the accident which he purportedly witnessed.
The respondent's assertion that Mr. Pelehac's protected
rights under the Act are limited to safety complaints is
rejected. The applicable case law clearly established that the
protections afforded miners in the exercise of their rights
pursuant to the Act must be broadly construed. Section 105(c) (1)
of the Act prohibits a mine operator from discriminating against
a miner because he has testified in any proceeding related to the
Act.
Section 103(a) of the Act requires the Secretary of Labor
(MSHA) to investigate a mine accident to determine its cause, and
to determine whether a mine operator has violated any mandatory
safety or health standard. Section 103(d) of the Act requires a
mine operator to likewise investigate all mine accidents to
determine the cause and means of preventing a recurrence. The
operator is also required to retain all accident investigation
information and records and to make them available to MSHA, and
section 103(j) requires the operator to prevent the destruction
of any evidence which would assist in investigating the cause of
an accident.
Section 103(b) of the Act authorizes the Secretary to hold a
public hearing, after notice, and to subpoena witnesses to testify in connection with an accident investigation. In this case,
although the testimony of Mr. Pelehac was not presented at any
formal public hearing, and he was not subpoenaed, the information
sought to be elicited from him in connection with the accident
was part of the fact finding inquires being conducted by mine
management and the MSHA inspectors pursuant to their obligations
under sections 103(a), (d), and (j) of the Act.
In view of the foregoing, I conclude and find that the
accident investigations in question were proceedings related to
the Act and that Mr. Pelehac's participation in those investigations as a witness to the accident was a protected activity
within the meaning and intent of section 105(c) (1) of the Act,
Donovan v. Stafford Construction Company, supra.
I further
conclude and find that the respondent is prohibited from interfering with this activity on the part of Mr. Pelehac, and is
prohibited from harassing, intimidating, or otherwise impeding
Mr. Pelehac's participation in these kinds of accident investigations or inquiries.

1227

The Respondent's Alleged Discriminatory Actions
Mr. Pelehac confirmed that he had worked overtime on an
intermittent basis while employed with the respondent and that he
was always paid for this work. He apparently assumed that he
would be paid when he was asked to stay beyond his normal work
shift on the 3 days in question, even though he conceded that he
performed no work in his regulation job classification during
this time.
I take note of the fact that at the time Mr. Pelehac
filed his complaint with MSHA he did not allege that the respondent refused to pay him because he gave unfavorable testimony.
He explained that he did not do so because he did not believe it
was necessary, and during the hearing he asserted that the
respondent refused to pay him because he could not testify that
the accident victim (Bandish} had done anything wrong, or that
the accident was the result of his own negligence.
I also take
note of the fact that Mr. Pelehac filed a grievance for overtime
pay, but it was apparently not pursued further because he had no
contractual right to be paid for time spent away from his regular
work duties (exhibit R-1).
In order to prevail in this case, there must be some credible showing by the complainant that the refusal by the respondent
to compensate him for the extra time spent in the accident
inquiries was motivated by its desire to punish him or retaliate
against him because of his alleged failure to give favorable
testimony on behalf of the respondent.
Such a showing may be
established by direct evidence, or by circumstantial evidence
establishing a strong and unrebutted inference of discriminatory
motive.
In the Elias Moses case, the Commission held that a mine
operator's coercive and harassing interrogation of a miner to
support its suspicion that he had reported an accident to MSHA
was discriminatory.
In the Joseph G. DeLisio case, supra, Judge
Fauver found that the refusal by the mine operator to pay him for
his,time as an opposition witness, while at the same time paying
witnesses who appeared on behalf of the operator, was discriminatory on its face.
Although it is clear that Mr. Pelehac filed no safety complaints or reported the accident, he is protected against any
harassing and coercive interrogations of the kind found by the
Commission to be discriminatory in Elias Moses. With regard to
the application of the DeLisio decision to the facts of this
case, I take note of the fact that DeLisio was subpoenaed as an
adverse witness by MSHA to testify against the operator in a
hearing before a Commission judge involving an alleged violation
of a mandatory safety standard.
In the instant case, Mr. Pelehac
was but one of several employees who were interviewed and gave, ,
information or "testimony" regarding the accident, an:d I find no
support for any conclusion that any of these employeeS: were
"adverse" witnesses. The record reflects that the accident

1228

investigation revealed no violations on the part of the respondent which would have contributed to the cause of the accident,
and Mr. Barletta testified credibly that he could not conclude
that the information given by Mr. Pelehac during the accident
inquiries was "unfavorable" to the respondent because he basically testified that he did not actually see the accident because
he had his back turned at the time that it occurred and that when
he turned around he saw that Mr. Bandish was injured (Tr. 75).
Mr. Pelehac believed that his failure to exonerate the
respondent of any fault or liability for the accident was "the
damaging testimony" which served as the basis for the respondent's refusal to pay him for the extra time in question. However, as noted earlier, the MSHA accident investigation revealed
no violations on the part of the respondent which may have contributed to the cause of the accident, and Mr. Pelehac conceded
that his questioning by mine management with respect to the
accident victim's purported negligence and possible violation of
company safety rules was not unusual.
Further, as previously
noted, Mr. Pelehac agreed that mine management at no time ever
suggested that he not tell the truth about what he knew about the
accident. Although Mr. Pelehac believed that it would be in the
best interest of the respondent to establish that Mr. Bandish was
negligent, he nonetheless agreed that it was not unusual for the
respondent to attempt to mitigate its liability in the event it
were sued by Mr. Bandish, and that he would probably do the same
thing if he were sued.
Mr. Pelehac asserted that the respondent "repeatedly" questioned him during the course of the accident inquiries, as well
as in the course of the grievance hearing involving the respondent's disciplinary action against Mr. Bandish. Mr. Pelehac
suggested that he was "hounded" by the respondent in its attempts
to elicit testimony from him to support the respondent's belief
that Mr. Bandish was negligent and caused the accident by striking the piece of equipment which injured him with a hammer.
Superintendent Barletta confirmed that he repeatedly asked
Mr. Pelehac about Mr. Bandish's possible use of a hammer because
he had reason to believe that Mr. Bandish may have used a hammer
to beat on the piece of equipment which blew apart and struck him
in the head. Although MSHA's accident report contains information that Mr. Bandish did not have a hammer in his possession
when he was last observed by Mr. Pelehac, the report also
reflects a statement by a company safety inspector that during a
conversation with Mr. Bandish at the hospital on the day of the
accident, Mr. Bandish informed the inspector that he used a
hammer to beat on the piece of equipment in question "when all.of
a sudden everything let loose" (exhibit R-2, pg. 7).
In these
circumstances, and given the fact that the respondent had an
obligation to ascertain the cause of the accident, and to prevent

1229

a recurrence in the future, I find nothing unusual or unreasonable in Mr. Barletta's pursuing the question of the possible use
of the hammer by Mr. Bandish.
I also find nothing unusual or
unreasonable in the respondent's attempts to mitigate its liability by pursuing this question with Mr. Pe.lehac, the only other
person at the immediate scene of the accident at the time
Mr. Bandish was injured.
During the course of the hearing, Mr. Pelehac•s representative confirmed that there was no transcript of the testimony
given during the arbitration hearing in connection with
Mr. Bandish's grievance. The transcript of Mr. Pelehac's testimony in connection with MSHA's accident investigation, if it
exists, was not produced or offered by any of the parties in this
proceeding, and it is not a matter of record in this case. Under
the circumstances, I have no basis for concluding that
Mr. Pelehac was "hounded" because the respondent "repeatedly"
questioned him about Mr. Bandish's use of a hammer. Although
Mr. Pelehac testified that Mr. Barletta or someone from management questioned him each day as to whether or not Mr. Bandish may
have struck the equipment with a hammer, and that Mr. Barletta in
particular asked him about this "several times," I find no credible or probative evidence to support any conclusion that the
respondent's questioning of Mr. Pelehac was coercive, or that it
constituted harassment of Mr. Pelehac, or an attempt by the
respondent to intimidate him. To the contrary, based on the
record in this case, I cannot conclude that the respondent's
questioning of Mr. Pelehac, and its request that he remain beyond
his normal work shift to make himself available to mine management and the inspectors investigating the accident was anything
other than a bona-fide good faith effort on the part of the
respondent to ascertain all of the facts in connection with the
accident in question.
The Alleged Disparate Treatment of Mr. Pelehac
There is no evidence in this case that mine management
harbored any ill towards Mr. Pelehac, and he agreed that no one
ever suggested that he not tell the truth during the course of
the accident investigations. Superintendent Barletta considered
Mr. Pelehac to be a good employee, and the record reflects that
he granted Mr. Pelehac's request to leave the mine on January 24,
after the accident was reported, and before the arrival of an
MSHA accident investigator. Mr. Barletta also accommodated
Mr. Pelehac by agreeing to certain changes in his work shifts
during the accident inquiries (Tr. 62). Although Mr. Barletta
indicated that he would have issued a direct order to Mr. Pelehac
to remain at the mine if he had refused to do so, he also indi~
cated that if an employee advised him that he could not stay
because he had other engagements, he would talk to him at the
beginning of his next shift. Mr. Barletta confirmed that during
a prior MSHA investigation on April 17, 1989, one of his

1230

employees, Bobby Clark, went home because he did not want to get
involved in the investigation, and he was interviewed a week
later by the inspector at the beginning of his shift (Tr. 109,
exhibit R-5).· In this case, there is no evidence that
Mr. Pelehac requested to go home at the end of his work shifts,
and was refused.
The parties are in agreement that the applicable bargaining
agreement does not provide for compensation for the extra time
spent by miners on matters dealing with accident investigations.
The record also establishes that in the absence of any contractual obligation to compensate miners for time spent on matters
other than work, the respondent has a policy of not compensating
miners for any time spent beyond their normal work shift on such
matters as counselling, disciplinary problems, and accident
investigations.
If an employee is required to remain at the mine
after his normal work shift to give information, or to otherwise
participate in the fact-finding process with respect to these
matters, he is not paid for his time. However, if an employee is
called out of the mine during his normal work shift to give
information during an accident investigation, or is interviewed
during his shift at his work location, he continues to receive
his regular pay even though he is not performing any work.
Mr. Barletta's credible testimony establishes that those
employees interviewed during their normal work shifts, including
Mr. Pelehac, were paid for their regular shift. With regard to
the respondent's failure to pay Mr. Pelehac for the time spent on
an investigation beyond his normally scheduled work shift,
Mr. Barletta's credible testimony further establishes that in the
absence of any contractual obligation to do so, the respondent
has not compensated other employees who were required to stay
beyond their normal work shifts in order to participate in an
accident investigation or similar inquiries dealing with employee
safety and disciplinary matter.
Mr. Barletta testified that in April, 1989, seven employees
were asked to stay beyond their normal work shifts by MSHA and
state mine inspectors who were investigating a safety complaint,
and that none of these employees were compensated from their
time.
He also testified to an investigation which he conducted
in September, 1988, in connection with an imminent danger order
issued by MSHA involving an employee who was observed walking
under an unguarded belt conveyor. Mr. Barletta stated that the
employee was required to stay over her normal work shift on
2 days and that she was not compensated for the extra time (Tr.
61, exhibits R-3 and R-5).
Mr. Pelehac's allegation of disparate treatment lies in his
assertion that hourly employees Daniel Bailey and-Ronald Seliga,
both of whom stayed beyond their normal work shift.during the
accident inquiry on Tuesday, January 24, were paid overtime, and

1231

he was not. Mr. Pelehac does not suggest, nor has he established, that these individuals were paid overtime by the respondent because they may have given "favorable" testimony or
information. He simply concludes and suggests that since
Mr. Bailey and Mr. Seliga were paid, and he was not, he was
discriminated against. In support of this argument, Mr. Pelehac
relies on the payroll time records which reflects that Mr. Bailey
was paid for 9-3/4 hours of overtime for January 24, and that
Mr. Seliga was paid for 3 hours of overtime that day (exhibit
R-4). Mr. Pelehac points out that his time record for that day
reflects that he was initially credited for 3 hours of overtime,
but that the timekeeper scratched it out, and that the respondent
has not satisfactorily explained why this was done.
Superintendent Barletta testified that the initials of the
individual who scratched out the 3 hours of overtime on
Mr. Pelehac's time record appears to be those of Mr. Pelehac's
underground section foreman Mel Robinson, who was located 2 miles
from the office where the records are kept. Mr. Barletta confirmed that Mr. Pelehac was working on temporary assignment at
the river barge location on Monday and Tuesday, January 23 and
24, and that the outside foreman would have probably reported
Mr. Pelehac's work time. However, Mr. Barletta stated that he
had no actual knowledge as to how Mr. Pelehac's time may have
been reported, who reported it, and he did not know why
Mr. Robinson may have scratched out and initialed the overtime
entry made on Mr. Pelehac's time record (Tr. 90-93).
Mr. Barletta confirmed that he interviewed Mr. Bailey and
Mr. Seliga on Tuesday, January 24, and he stated that "I know
they were not paid for the investigation unless it was on their
normal shift" (Tr. 52). He further confirmed that in keeping
with company policy, employees are paid their wages if they are
interviewed during a scheduled shift while "on the clock," but
that no employee would be paid for an extra time beyond his
normal shift (Tr. 69, 71). He explained that Mr. Seliga was paid
for 3 hours overtime on January 24 because he was scheduled to
work 3 hours overtime that day, as well as on Monday, January 23,
and the rest of the week loading barges (Tr. 80). Mr. Bailey was
paid overtime because he was scheduled to work a double shift
that day replacing another employee who was absent from work (Tr.
79) •

Mr. Barletta testified that Mr. Bailey's participation in
his investigation on January 24, consumed approximately
30 minutes, and that Mr. Seliga's participation lasted for 5 or
10 minutes (Tr. 100). MSHA's official accident investigation
report reflects that the accident occurred at approximately
1:55 p.m., on January 24, and Mr. Barletta testified that the
dock loading facility was shutdown for 3 hours, and that no work
was performed by anyone during the shutdown, including Mr. Bailey

1232

and Mr. Seliga, but that they continued working after the facility was reopened (Tr. 89). He testified that Mr. Bailey performed work "dumping the sampler" and sweeping the barges, and
that Mr. Seliga was assigned other work while his investigation
continued (Tr. 97, 101). He confirmed that Mr. Seliga and
Mr. Bailey were both "on the clock" during the investigation, but
that Mr. Pelehac was not because his regularly scheduled shift
ended at 2:15 p.m. (Tr. 97-99). Mr. Barletta had no knowledge
that Mr. Pelehac was also previously scheduled to work 3 hours
that day (Tr. 99).
Mr. Pelehac confirmed that no coal was loaded on the barges
from 2:15 p.m. until 5:00 p.m., on Tuesday, January 24. He
testified that Mr. Seliga and Mr. Bailey were with him during the
time that Mr. Barletta was conducting his interviews, but that he
(Pelehac) went home at 5:45 p.m. Mr. Pelehac further testified
that Mr. Seliga and Mr. Bailey were not assigned any work duties
and he observed them doing no work during this time (Tr.
112-113) .
MSHA's accident report reflects that the accident was not
immediately reported because it was not initially considered to
be life threatening. However, when it was learned at approximately 5:00 p.m., that Mr. Bandish had sustained a skull fracture
and was being transferred to another hospital for possible
surgery, the mine safety supervisor notified MSHA of the accident
by telephone, and an MSHA inspector was dispatched to the mine to
obtain facts pertaining to the accident.
Mr. Seliga and Mr. Bailey were not called to testify in this
case. Although the evidence reflects that no one may have performed any work during the 3-hour shutdown period immediately
following the accident, since Mr. Pelehac left the mine at
5:45 p.m., he would have no way of knowing whether or not
Mr. Bailey or Mr. Seliga continued to perform any work while
Mr. Barletta was continuing his inquiry, and Mr. Barletta's
testimony that work resumed stands unrebutted. Mr. Seliga's time
record reflects that he was paid 3 hours of overtime for each day
of the week in question, and this lends credence Mr. Barletta's
testimony that he had been previously scheduled to work overtime
and was in fact "on the clock." Mr. Pelehac offered no testimony
that he too was previously scheduled to work 3 hours of overtime
on January 24, and in these circumstances, I find Mr. Barletta's
testimony explaining Mr. Seliga's overtime pay to be credible,
particularly in light of his unrebutted testimony that
Mr. Seliga's interview time only consumed 5 or 10 minutes. With
regard to Mr. Bailey's overtime pay for January 24,
Mr. Barletta' s testimony that his interview with Mr.. Bailey only
consumed 30 minutes, and that he was scheduled to work a double
shift on January 24, is unrebutted, and I find Mr. Barletta's
explanation as to why he was paid to be likewise credible.

1233

Mr. Barletta's investigation notes (exhibit R-4), for
Wednesday, January 25, include a list of individuals who participated in the MSHA and state investigations, and although
Mr. Pelehac's name is included as one of the individuals who
participated in a 5:30 p.m. meeting on that day, the names of
Mr. Bailey and Mr. Seliga are not included among those individuals who participated in the investigation on that day.
Mr. Pelehac did not participate in the investigation which continued on Thursday, January 26, and although Mr. Seliga and
Mr. Bailey are listed among those who were interviewed that day,
there is no evidence that they were interviewed on or off their
regular work shift. Further, although Mr. Pelehac's name is
included as a i•witness" who participated in the investigation on
Friday, January 27, Mr. Seliga and Mr. Bailey are not listed as
participants on that day.
As noted earlier, Mr. Seliga and Mr. Bailey did not testify
in this matter. Mr. Pelehac's underground foreman, Mel Robinson,
the individual who apparently signed Mr. Pelehac's work attendance and time record, and who apparently initialed and scratched
out the entry crediting Mr. Pelehac with 3 hours of overtime on
January 24, did not testify.
I take note of the fact that the
time records for Mr. Bailey and Mr. Seliga were signed by an
individual other than Mr. Robinson.
In the absence of any credible or probative evidence to the contrary, I cannot conclude that
the deletion made on Mr. Pelehac's work time record crossing out
the 3 hours of overtime was the result of mine management's
desire to retaliate or otherwise penalize Mr. Pelehac. Nor can I
conclude that this deletion supports any reasonable inference of
any disparate treatment of Mr. Pelehac. To the contrary, I
conclude and find that Mr. Barletta's explanations as to why
Mr. Bailey and Mr. Seliga were paid overtime, and Mr. Pelehac was
not; is credible and plausible.
I conclude and find that the respondent has established that
it has consistently applied its policy of not compensating its
employees by paying overtime for time spent on accident investigations to all of its work force. The policy is based on the
fact that the union/management agreement does not provide for
such compensation. Absent any evidence of any discriminatory
motive on the part of the respondent, I simply cannot conclude
that the record in this case supports any conclusion that its
failure to pay Mr. Pelehac overtime was the result of his giving
unfavorable testimony or information, or his failure to exonerate
the respondent from all liability for the accident. As noted
earlier, I find no evidentiary support for any conclusion that
any information given by Mr. Pelehac was unfavorable, and MSHA's
accident investigation failed to reveal any violations by the
respondent which would have contributed to the cause of the
accident.

1234

In my view, the facts presented in this case are distinguishable from those presented in the Elias Moses and Joseph
DeLisio cases, supra.
In the Elias Moses case, the mine operator
indulged in conduct which amounted to coercive interrogation and
harassment of a miner suspected of reporting an accident to MSHA,
and the Commission concluded that this was a subtle form of
interference with the miner's protected rights under the Act.
I
find no such conduct on the part of the respondent in this case.
In the Joseph DeLisio case, Judge Fauver found that the withholding of wages from a miner subpoenaed by MSHA as an adverse
witness to testify against a mine operator, while paying other
miners who testified on behalf of the operator was discriminatory
on its face, and required no further examination of the operator's discriminatory motive.
I simply cannot reach such a
conclusion in this case.
The complainant's assertion that the respondent's refusal to
pay him was an act of discrimination because there was no legitimate business reason not to pay him is rejected. The parties
agreed that the applicable UMWA/Management bargaining agreement
does not provide for payment of wages for a miner's participation
in accident investigations which take place after their normal
work shift.
The respondent's credible and unrebutted evidence
reflects that in the absence of any contractual obligation to
compensate a miner for the time spent on such investigations,
company policy only allows the payment of wages for work performed by an employee, and that pursuant to this policy, the time
spent by an employee beyond his normal work shift participating
in accident investigations, counselling sessions, and employee
disciplinary matters, is not considered compensable "work performed" under the contract.
The record in this case suggests that Mr. Pelehac's union
could have placed him on "union business" and compensated him for
his time after his normal work shift while participating in the
accident investigations, as it apparently did in the case of the
safety committeemen who participated in the investigations.
Mr. Pelehac conceded that this was true, but asserted that union
compensation was only available in a case where the union
initiates the accident investigation.
In this case, although it
is true that the union did not initiate the investigation, it
would appear that the union nonetheless apparently paid the
safety committeeman, but did not pay Mr. Pelehac.
Absent any evidence of discrimination within the parameters
of section 105(c) of the Act, it is not my function to mediate or
arbitrate the question of whether or not Mr. Pelehac should have
been paid for the time spent on the accident investigations.
I.
find no statutory right to such payment, and it seems clear from
the record that the respondent was not obliged to pay Mr. Pelehac
pursuant to the bargaining agreement, and Mr. Pelehac's grievance
was apparently not pursued further because of this fact.
Under

1235

all of these circumstances, I conclude and find that the respondent's refusal to pay Mr. Pelehac was a reasonable and plausible
management business decision unrelated to any unfavorable or
adverse information or testimony which may have been given by
Mr. Pelehac in the course of the accident inquiries.
In this
regard, I take particular note of the Commission's decision in
Bradley v. Belva Coal Company, 4 FMSHRC 982 (June 1982). Citing
its Pasula and Chacon decisions, the Commission stated in part as
follows at 4 FMSHRC 993:
"* * * Our function is not to pass on
the wisdom or fairness of such asserted business justifications,
but rather only to determine whether they are credible and, if
so, whether they would have motivated the particular operator as
claimed."
·
ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that the
complainant has failed to establish a violation of section 105(c)
of the Act. Accordingly, his complaint IS DISMISSED, and his
claims for relief ARE DENIED.

,,--./
d ) .. / /
{//.
/T:. ~~---·C/~ ~. Koutra~ .
Administrative Law Judge
Distribution:
Edward D. Yankovich, Jr., President, UMWA District No. 4,
32 South Main Street, Masontown, PA 15461 (Certified Mail)
Walter J. Scheller, III, Esq., Consolidation Coal Company,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
Michael J. Healey and Paul Girdany, Esqs., Healey Whitehill,
Fifth Floor, Law & Finance Building, Pittsburgh, PA 15219
(Certified Mail)
/fb

1236

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

JUN 71990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Respondent

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-187
A.C. No. 15-05423-03618

v.
No. 1 Mine
MANALAPAN MINING COMPANY,
Respondent
DECISION
Before:

Judge Fauver

Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, TN,
for the Petitioner,
Richard D. Cohelia, Safety Director, Evarts, KY,
for the Respondent.

At the hearing of this case on May 16, 1990, in Big Stone
Gap, Virginia, the parties moved for approval of a settlment on
the record. For the reasons stated on the record, the motion is
GRANTED.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
approved civil penalties of $2,600 within 30 days and upon such
payment this proceeding is DISMISSED.

w~~vtA
William Fauver
Administrative Law Judge
Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department of
Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN 37215
(Certified Mail)
Richard D. Cohelia, Safety Director, Manalapan Mining Co., Inc.,
Rt 1, Box 374, Evarts, KY 40828 (Certified Mail)

iz

1237

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

JUN 71990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-204
A.C. No. 15-15473-03515

v.
No. 1 Mine
CALDRON COAL CORPORATION,
Respondent
DECISION
Before:

Judge Fauver

Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennesse,
for the Petitioner,
Bruce Hawkins, Consultant, Phelps, Kentucky,
for the Respondent.

At the hearing of this case on May 15, 1990, in Big
Stone Gap, Virginia, the parties moved for approval of a
settlment. For the reasons stated on the record, the motion
is GRANTED.
ORDER
WHEREFORE IT IS ORDERED that Respondent shall pay the
approved civil penalties of $120 within 30 days and upon such
payment this proceeding is DISMISSED.

~:Y~v~
William Fauver
Administrative Law Judge
Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, U.S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville~ TN
37215 (Certified Mail)
Bruce Hawkins, Consultant, Caldron Coal Corp., P.O. Box 321,
Phelps, KY 41553 (Certified Mail)

iz

1238

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

JUN
DONALD H. GIBSON,
Complainant

71990

.

DISCRIMINATION PROCEEDING
Docket No. WEST 89-11-DM

v.
CYPRUS BAGDAD COPPER COMPANY,
Respondent

.:

MD 87-47

DECISION
Appearances:

~. Henry Moore, BUCHANAN INGERSOLL, 600 Grant
Street, 58th Floor, Pittsburgh, Pennsylvania 15219,
for Complainant.
Donald H. Gibson, pro se, 885 Munley Drive, Reno,
Nevada 89503

Before:

Judge Cetti

This case is before me upon the pro ~ discrimination complaint of Donald H. Gibson, under section 105(c)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 802, et
~' the "Act," alleging unlawful discharge by Cyprus Bagdad
Copper Company (Cyprus) in violation of section 105(c)(l) of the
Act.

2:/

ll

Section 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in any
coal or other mine subject to this Act because such
miner, representative of miners or applicant for employment, has filed or made a complaint under the related to this Act, including a complaint notifying
the operator or the operator's agent, or the representative of the miners at the coal or other mine of an
alleged danger or safety or health violation in a coal
or other mine or because such miner, representative of
miners or applicant for employment is the sµbject of
medical evaluations and potential transfer under a
standard published pursuant to section 101 or because

1239

Mr. Gibson initially filed his complaint with the Secretary
of Labor, Mine Safety and Health- Administration (MSHA), at its
Phoenix, Arizona, office, on July 22, 1987. In a statement executed by Mr. Gibson on that day on an MSHA complaint form, he
made, in pertinent part, the following complaint:
Mr. Walz came out to my job to inspect my job performance.
During one of these visits I asked him about the drug
traffic inside of this mine, and specifically about
the drugs found, since I work around a lot of moving
equipment. He told me, "It's none of your business,"
and that I am good for nothing but lube and fuel driver.
I never seem to see my foremen only Larry Walz. I have
brought this to the attention of Employee Relations but
they have refused to act on any of my requests about this
man's behavior towards me. Since this incident occurred,
Mr. Walz gave me an unexcused absence.
I had already
taken care of this with my immediate foreman and had my
job secured.
Mr. Walz overode this absence and told me to appeal it.
I did so, and it was rescinded. Mr. Walz received a copy
of this and was upset about this and stated that it was
immaterial. Since then, I received a 30-day suspension
for not greasing rippers.
In my PM sheets there is no
mention of these rippers.
I was again told it was immaterial. Mr. Walz at that time called me "a safety hazard."
Again I brought up the drug use and stated, "How come there
no suspension pending investigation for possession of cocaine on these premises?" He told me, "It's none of your
business. Stay out of it." I seem to feel that, because I
am the only person who has actually faced these gentlemen
with this information, that I am continuing to be harrassed.

1/

(continued)
such representative of miners or applicant for employment has instituted or caused to be instituted any proceedings under or related to this Act or has testified
or is about to testify in any such proceeding, or because
of the exercise by such miner, representative or miners
or applicant for employment on behalf of himself or of
any statutory right afforded by this Act.

1240

No one else has ever received a suspension for that
amount of time, even for damaging equipment.
I have
broken no rules and only try to do my job.
I was recalled ·on the layoff with no problems. Again, since
Mr. Walz came to this company in 1986 and I confronted
him about the use of drugs, I have had nothing but
problems • • • • I really do enjoy my job and pray for
reinstatement with Cyprus Bagdad, and that my 30-day
suspension be looked into also.
MSHA conducted an investigation of Mr. Gibson's complaint,
and by letter dated September 16, 1988, advised him that, on the
basis of the information gathered during the course of its investigation, a violation of section 105(c) of the Act had not
occurred. Mr. Gibson then pursued his complaint with the
Commission.
Respondent filed an answer to the complaint stating in part:
Cyprus Bagdad specifically denies that it or any
person acting on its behalf violated section 105(c) of
the 1977 Act.
Complainant was terminated from his employment
with Cyprus Bagdad on July 21, 1987, because he had
an unacceptable work record and continuing irregular
attendance after being repeatedly warned that, unless his work and attendance record improved, he
would be subject to termination.
Cyprus's answer enumerates a partial listing of the events
which lead up to the decision to terminate complainant and
attached numerous exhibits documenting its answer.
Mr. Gibson, in his initial complaint filed on an MSHA
complaint form, left blank the line that asked for the date of
the discriminatory action.
In the line asking for the person(s)
responsible for the discriminating action, Mr. Gibson typed in
the name "Larry C. Walz," one of Cyprus's superintendents.
To help clarify Mr. Gibson's allegations against Cyprus,
his response to my prehearing order is set forth in pertinent
part as follows:
During my employ with Cyprus Bagdad Copper Corporation (1980-1987) myself and any other employee
could request time off as needed.
(Immediate supervisor approval) There was no rules stating how many

1241

days a year you were allowed.
I have never had an
"unexcused absence."
I mentioned that there was a
drug problem within the mine.
They (Mr. Walz) told
me it was none of my business.
I did file a formal
complaint with MSHA during this period, stating that
I felt a need for an investigation was needed because
of two separate incidents that occurred in the mine.
From then on it was continuous harrassment.
There is
noted in the rule book of the company CCBCC) that
there is a "chain of command" that has to be followed.
This was not how it was in my case at all. Mr. Walz
completely overrode my immediate supervisor and any
other foreman or salaried personnel who might have
tried to intervene.
This is what I hope to be able to bring forth is
that in fact it was not my absenteeism that caused my
termination but the fact that I requested an investigation of the mine for safety reasons and for that
reason only I was terminated.
STIPULATIONS
At the hearing, the parties stipulated to the following,
which I accept as established facts:
1.
That the presiding administrative law judge, August F.
Cetti, has jurisdiction over this matter.
2.
The Bagdad Mine Company was owned and operated by Bagdad
Copper Company (Cyprus), and had MSHA ID No. 02-00137.
3.
The Bagdad Mine is located in Bagdad, Arizona, and
employs approximately 550 persons.
4.
Donald H. Gibson was first employed by Cyprus, or its
predecessor corporation, in 1980.
5.
On February 12, 1984, Mr. Gibson was laid off during a
reduction in force.
He was rehired on October 23, 1984.
6.
At the time of his termination, Mr. Gibson was an hourly
employee assigned to the mine maintenance department.
7.
The company records show that on June 7, 1983,
Mr. Gibson was given an unexcused absence for his failure to
report to work on that day.

1242

8. Company records show that on July 22, 1983, Mr. Gibson
was given a verbal reprimand for his failure to report to work on
July 18, 1983.
9.
The company records show that on August 8, 1983, a general report was made concerning Mr. Gibson's excused absence from
work on August 7, 1983.
10. The company records show that Mr. Gibson received a
Notice of Termination for unexcused absence from work on October
16, 17, 18, 1983. The termination was modified to a 10-day suspension on October 25, 1983.
11. The company records show that on March 7, 1985,
Mr. Gibson received a warning concerning excessive absenteeism.
12. The company records show that on March 11, 1985,
Mr. Gibson received a supension for two working days and two
hours of another day for poor judgment in utilizing his time on
duty.
13. Company records show that on September 19, 1986,
Mr. Gibson received a written warning which included attendance
guidelines for excess absenteeism.
14. The company records show that on March 6, 1987,
Mr. Gibson was given attendance guidelines because of his poor
attendance record.
15. Company records show that on April 29, 1987, Mr. Gibson
received a written warning for an unexcused absence from work on
April 24, 1987.
16.
On May 22, 1987, Mr. Gibson was given a suspension
pending an investigation concerning his failure to perform his
job duties.
17. On May 27, 1987, at the conclusion of the investigation,
Mr. Gibson received a suspension for 18 additional working days.
18. On July 16, 1987, Mr. Gibson was given a suspension
pending an investigation for termination because of unexcused
absences on July 14 and 15 of 1987.
19.

On July 21, 1987, Mr. Gibson's employment was terminated.

20.
On July 17, 1987, Mr. Gibson first contacted the Mine
Safety and Health Administration concerning complaints he had
concerning the drug and alcohol abuse at Cyprus.

1243

21.
On July 29-30, 1987, MSHA inspectors, Gary Day and
Virgil Wainscott, investigated Mr. Gibson's complaint concerning
drug and alcohol abuse, and issued a notice of negative finding
concerning.the complaint.
22.
On July 21, 1987, Mr. Gibson filed a complaint of discrimination with the Mine Safety and Health Administration which
is now at issue in this case.
23.
On September 16, 1988, the Mine Safety and Health Administration issued a determination that no violation of section
105(c) of the Federal Mine and Health Safety Act of 1977 has
occurred.
ISSUES
1. Whether Mr. Gibson's complaint that he was being treated
unfairly in comparison to other employees, made at the time that
he was told of his suspension for deficient work performance in
May 1987, was activity protected under the Act.
2. Whether Mr. Gibson's complaints concerning disparate
treatment of Robert Otteson constituted protected activity under
the Act.
3. Whether Mr. Gibson's telephone call to MSHA concerning
the issue of whether his wife could attend his disciplinary hearing was activity protected under the Act.
4. Whether any protected activity that Mr. Gibson might
have engaged in motivated in any part his suspension on May 27,
1987, or his discharge on July 21, 1987.
5.
If protected activity motivated in any part the decisions to suspend Mr. Gibson and to discharge him~ whether such
discipline would have been taken in any event, because of his
history of absenteeism and his poor work performance.
At the hearing of August 24, 1989, the following witnesses
testified for the complainant:
Donald Gibson, complainant
Irene Gibson, complainant's wife
Mervin Corbitt, supervisor of equipment operators
Larry P. Burkhead, heavy equipment operator
A continued hearing was delayed at the request of complainant, Mr. Gibson who was temporarily unable to go to the hearing
as a result of injuries he sustained when he was struck by a car
while he was crossing a street.
1244

At the continued hearing in Phoenix, Arizona, credible testimony on the relevant issues was taken from the following 20
Cyprus employees.
Charles Rising
Patsy c. Morris
Harry Cosner
Junior Morgan
Vernon Swinson
Don Berdine
Raphael Perkins
Daniel L. Mead
Ron Foster
Harold R. Rubash
Robert Otteson
Joe Mortimer
Robert Swain
Janette Bush
Larry Walz
Pete Mendibles
Floyd Chandler
Peter Gray
Raphael H. Perkins William T. Watson

Manager, Human Resources
Mine Maintenance Supervisor
Mine Manager
General Mine Foreman
Mill Maintenance Supervisor
Mill Maintenance Superintendent
Mine Maintenance Supervisor
Manager Community Services
Master Equipment Operator
Lubrication Maintenance
Mine Supervisor
Safety Director
Mine Maintenance Supervisor
Manager, Human Resources (as of 7/88)
Mine Maintenance Superintendent
Equipment Operator
Equipment Operator
Mine Supervisor
General Supervisor of Maintenance
Maintenance Supervisor

Messrs. Rising, Walz, and Ms. Morris testified as to the
facts and circumstances surrounding the termination of
Mr. Gibson's employment, including the unexcused absences he
received in July 1987, his suspension for substandard work performance in May 1987, his unexcused absence in April 1987, his
work history in general, and the motivation for the termination
of his employment.
In addition, Ms. Morris testified as to certain conversations she had with Mr. Gibson during the middle of
July 1987. Mr. Rising also testified as to the drug and alcohol
program at the mine and to the discipline of other miners.
Mr. Cosner testified concerning the facts and circumstances
surrounding the termination of Mr. Gibson's employment, including
the unexcused absence he received in April 1987, his suspension
for substandard work performance in May 1987, the unexcused
absences he received in July 1987, and his work history.
Messrs. Morgan, Swinson, Linger, and Foster testified as to
the facts and circumstances surrounding Mr. Gibson's suspension n
May 1987 for substandard work performance.

1245

Mr. Berdine testified as to the facts and circumstances
surrounding Mr. Gibson's suspension in May 1987 for substandard
work performance, Mr. Gibson's unexcused absence in April 1987,
and an incident in March 1985, when Mr. Gibson was suspended.
Messrs. Perkins and Watson testified as to Mr. Gibson's work
history.
Mr. Rubash testified as to the circumstances of his assignment to a job performing lubrication work at the concentrator.
Mr. Meade testified generally as to his contacts with
Mr. Gibson, including the housing problem after Mr. Gibson's termination.
Mr. Otteson testified as to an incident for which he was
disciplined in June 1987.
Chris Crowl testified as to his conversations with
Mr. Gibson in May - June 1987.
Ms. Bush testified generally as to discipline records maintained at the mine, to the drug and alcohol program at the mine,
and to discipline of other miners.
At the conclusion of the hearing, the matter was left open
for post-hearing briefs and proposed findings and orders.
Respondent filed a helpful brief; complainant filed no brief.
The matter was submitted for decision on May 17, 1990.
FINDINGS OF FACT
I

Cyprus operates an open pit copper mine in Bagdad, Arizona,
employing approximately 550 persons.
II
Complainant, Donald H. Gibson, became employed by the predecessor company to Cyprus in 1980. He was employed in the mine
maintenance department as an hourly employee. Early in his employment, he began to have attendance problems. He missed days
of work and frequently did not follow the procedures for notifying his supervisors that he was not going to come to work. On
June 7, 1983, he was given a verbal warning for an unexcused
absence.

1246

III
In July 1983, Mr. Gibson's absentee problems had become
serious enough that his supervisor, Patsy Morris, invoked formal
discipline against him. On July 18, 1983, she gave him a verbal
reprimand for an unexcused absence from work. After he had
returned to work, he gave as an excuse the inability to return
to Bagdad in time to work after taking a family member to the
airport. Mrs. Morris had previously counseled Mr. Gibson about
his absences, as had other supervisors.
IV
Mrs. Morris and Robert Swain again noted their concern over
Mr. Gibson's attendance in August 1983 when he took a day off
that was unexcused. Not long after their concern was conveyed to
Mr. Gibson, he again took three days off, resulting in unexcused
absences for October 16, 17, and 18, 1983. Initially, it was
determined that his employment should be terminated but that
determination was changed to a ten-day suspension.

v
On February 12, 1984, Mr. Gibson was laid off as part of a
general reduction in force. This layoff continued until October 23, 1984, when Mr. Gibson returned to work as an hourly
employee in the maintenance department. He had previously been a
leadman, an hourly employee with certain supervisory authority,
but did not hold that position when he returned from layoff.
VI
After Mr. Gibson returned from layoff, he again accumulated
unexcused absences. In March of 1985, he was formally counseled
by his supervisor, Raphael Perkins, conerning his absences. He
had two more absences in 1985, after he was counseled.
VII

Not long after his counseling session, he received a suspension for failing to utilize his time properly. He was
observed at a remote location in a company truck parked in a
fashion and for a period that suggested to Cyprus that he had
been sleeping. The investigation concerning that incident raised
questions as to the accuracy of Mr. Gibson's statements concerning his behavior.

124 7

VIII
There was a change in supervisors in the maintenance department in the first half of 1986, and it was September 1986, before
the new maintenance superintendent, Larry Walz, realized that
Mr. Gibson had developed a serious absentee problem. At that
time, he placed Mr. Gibson on attendance guidelines that required
that any absence from work would be considered unexcused and
would result in a suspension or possible termination. At that
time, Mr. Gibson's absentee rate was the worst in his department,
over 10 percent, as opposed to a plant average of 2 .5 percent.

IX
In March 1987, the guidelines were reissued, but were somewhat less stringent. Mr. Gibson was told that, if he was absent
from work, he would receive a written warning for his first absence before he would be subject to termination for a second
absence.

x
Not long after the guidelines were relaxed, Mr. Gibson took
a day off from work because of some personal business he wanted
to attend to concerning a court appearance of his stepson. He
was given a written warning for this absence and was told that
a further absence would result in his discharge.

XI
When he received the written warning, Mr. Gibson appealed
the discipline to Harry Cosner, the Mine Manager. Mr. Cosner
considered the fact that Mr. Gibson's attendance had improved,
that Mr. Berdine, the maintenance supervisor at the concentrator
where Mr. Gibson was assigned, had not had any negative reports
about Mr. Gibson's job performance, and the fact that
Mr. Gibson's absence was a result of his attendance at Court proceedings for his stepson. He wanted to motivate Mr. Gibson to
continue his improvement and indicated that if Mr. Gibson did not
miss any work through July 1, then the written warning would be
rescinded. The guidelines issued in March would, however, remain
in effect, and if Mr. Gibson was absent during this probation
period it would result in discharge.
XII
In May 1987, Mr. Gibson's job was to service equipment out
at the concentrator associated with the mill, rather than at the

1248

mine. Responsibility for his supervision was divided between the
mine and mill maintenance departments. Mr. Walz would, however,
be responsible for any discipline given to him.
As part of his
duties Mr. Gibson was also responsible for servicing the equipment involved in what was known as the tailings project. That
project was supervised directly by an hourly person, Ron Foster.
XIII
Early in May some of the employees on that site came to
Mr. Foster and complained that Mr. Gibson was not properly servicing the equipment. Mr. Foster took the matter to his supervisor, Junior Morgan. On May 18, Junior Morgan brought the probem to Patsy Morris, who he knew was familiar with servicing of
equipment. They inspected the equipment that day and found def iciencies in the lubrication. The next day Mrs. Morris returned
to inspect the equipment again with Vernon Swinson who was in
charge of maintenance at the concentrator. They determined that
the equipment had not been lubricated. While they were at the
site, they also determined that several pieces of the equipment
had not been fueled.
They also examined the worksheets
Mr. Gibson was required to fill out concerning the equipment he
serviced and found them to be confusing. Their findings were
reported to their supervisors, Mr. Berdine in Mr. Swinson's case
and Mr. Walz in Mrs. Morris's case.
XIV
On May 20, Mr. Berdine and Mr. Swinson inspected two bulldozers and a front-end loader which were of concern. They found
that the equipment had not been lubricated.
In particular, there
was no lubrication done on the rippers, which were in regular use.

xv
On May 21, Mr. Walz, Mr. Swinson, and Joan Schmidt, a representative from the Cyprus Human Resources Department, inspected
these two dozers as well as a loader. Again they determined that
this equipment had not been property serviced.
XVI
As a result of this investigation, on May 22 Mr. Gibson was
suspended from work until an investigation was completed to
determine whether he had also falsified his worksheets.
XVII
A meeting was held on May 27 to give Mr. Gibson the opportunity to present evidence on his behalf.
He was accompanied to
the meeting by another hourly employee, Bruce Covey. The meeting

1249

was conducted by Charles Rising, the Manager of Cyprus's Human
Resources Department and Mr. Walz.
The first part of the meeting
involved a discussion of the issues and the evidence. A break
was then called so that Mr. Walz and Mr. Rising could determine
the appropriate discipline to be given to Mr. Gibson.
XVIII
They decided that because of the inconsistencies in how
Mr. Gibson filled out company forms they could not prove he
deliberately falsified these records.
They also decided during
the break to suspend Mr. Gibson for an additional 18 working
days, making the full suspension to encompass a calendar month.
They arrived at their relatively severe penalty because they felt
they had to get Mr. Gibson's attention.
He had not responded
particularly well to earlier discipline and they thought they
would give him one last chance to correct his deficiencies as an
employee.
XIX
When the meeting resumed, Mr. Gibson was informed of his
suspension. At that time he asked why he was being suspended
when other miners who wrecked equipment or used alcohol or drugs
might not be. Mr. Rising directed the discussion back to
Mr. Gibson's situation and told him that he should use his time
during suspension to decide whether he wanted to be a Cyprus
employee.
This was the first time that Mr. Gibson mentioned drug
and alcohol use at the mine.

xx
Mr. Gibson appealed his suspension to W.J. Lampard, Cyprus's
Vice President and General Manager. His suspension was upheld.
Mr. Gibson met with Mr. Lampard and Mr. Rising. At that meeting
Mr. Gibson complained that Mr. Walz was treating him unfairly but
did not raise any safety related issues.
XXI
As a result of Mr. Gibson's suspension, the 60-day probation
period for eliminating his unexcused absence for April 24 was extended.
The probation was not completed on July 13 when
Mr. Gibson asked his supervisor Patsy Morris if he could take a
portion of the day off to attend a court hearing for his stepson~
he indicated he would make up the time on Saturday. She permitted him to ·ao so, but the next morning, after the shift had

1250

started, Mr. Gibson called her and told her that he would not be
coming to work that day. Mrs. Morris asked him if he knew the
consequences of his action and he indicated that he did.
That
evening he called Mrs. Morris at home to ask if he could take the
July 15 as a vacation day.
She indicated that she would see what
she could do, but did not indicate.·. that he could have the day as
vacation.
XXII
Mr. Gibson did not come to work on July 14 and 15. Mr. Walz
made the decision atthis point that he should be discharged and
determined to suspend him for that purpose.
Mr. Gibson had violated the attendance guidelines in effect since March by taking
unexcused absences on July 14 and 15. Mr. Gibson was informed of
his suspension after he had reported for work on July 16.
XXIII
An investigation was conducted concerning Mr. Gibson's reason for having to leave work on July 13.
It was determined that
he may not have actually gone to court as he had indicated to
Mrs. Morris.
XXIV
A meeting was held on July 21 and Mr. Gibson was give~ an
opportunity to present evidence that would mitigate his actions.
The decision had been made prior to the hearing that discharge
was appropriate unless information of extenuating circumstances
was presented by Mr. Gibson. Prior to the meeting, Mr. Rising
consulted with Messrs. Cosner and Lampard, who concurred in this
decision.
No evidence of extenuating circumstances was presented
and Mr. Gibson was informed that he was discharged.

xxv
Cyprus had disciplined other employees for excessive absenteeism. Some of these employees were also discharged.
Some·
employees were placed on similar attendance guidelines prior to
Mr. Gibson's discharge.
XXVI
On July 17, after his suspension pending discharge,
Mr. Gibson made a complaint to MSHA concerning discipline for
drug and alcohol use at Cyprus.
He made such complaint initially
by telephone and confirmed that complaint in writing the same day.

1251

Neither Mr. Rising nor Mr. Walz nor anyone else in management involved in Mr. Gibson's discharge was aware of such complaint
prior to his discharge. This complaint was investigated by MSHA
and was found to be without foundation.
Cyprus had an existing
drug and alcohol policy and no violation of any mandatory standard was found. Cyprus had begun developing a drug-testing program that included testing for cause in 1986. They had an existing program in place in 1987 that included testing applicants for
employment. Their drug and alcohol policy prohibited use on the
property.
If employees were under the influence of drugs or
alcohol on duty, they could be discharged.
XXVII
Earlier in 1987, there had been incidents at the mine involving the discovery of a vial of cocaine in a truck and marijuana in a drill. These incidents were investigated but the
persons responsible could not be identified. Credible evidence
was presented that if the persons responsible for the presence of
the drugs were identified under the existing discipline policy,
they could have been discharged. Under the testing, which was
put into effect after Mr. Gibson's discharge, persons have been
discharged.
'XXVIII
At the time of the meeting on July 21 concerning his discharge, Mr. Gibson expressed a desire to have his wife accompany him into the meeting. The policy was that only employees
could so accompany an employee into such a meeting and his request was refused. At that time, he asked to call MSHA to see if
the company's position could be overridden. Mr. Rising dialed
the MSHA number for Mr. Gibson and then left the room when he
talked to the MSHA personnel.
XXIX
After his discharge, Mr. Gibson sought unemployment compensation. Such compensation was denied because he had been discharged for proper reasons.
After his discharge, pursuant to the usual practice,
Mr. Gibson and his wife were asked to terminate their occupation
of the company-owned housing that they were renting. Cyprus
offered to make available other housing, so long as they could
qualify under the company's income requirements. Eventually,
Cyprus was compelled to seek to have the Gibsons evicted under
the month-to-month rental agreement which contained a 30-day
notification provision. The Gibsons were given a number of

1252

extensions of their occupancy of the house. A court order was
eventually entered with the Gibsons' agreement that they would
vacate the house in March 1988. They complied with the court
order.

xxx
On June 12, 1987, while Mr. Gibson was on suspension, a
supervisor named Robert Otteson attempted to conduct a tour of
the mine for some friends on a day when he was not scheduled to
work.
It was the belief of the security guard and Mervin Corbitt, a supervisor, that Mr. Otteson was intoxicated. Pursuant
to company policy, he was not permitted to go beyond the entrance
to the mine property.

XXXI
Mr. Otteson reported the incident to his supervisor,
Kent Watson, the next morning. As a result, Mr. Otteson was
given, on July 8, a written warning that a repeat of the incident
would result in his discharge.

XXXII
Some time after the incident occurred, Mr. Gibson apparently
called Chris Crowl, the former Human Resources Manager at Bagdad
to inquire as to why Mr. Otteson had not been disciplined.
Mr. Crowl inquired concerning the issue with Mr. Rising who told
him that the matter had been investigated and was proceeding to
discipline.
DISCUSSION
I.

ESTABLISHED LAW

It is well established that, in order to make out a prima
f acie case, a complainant bears the burden of production and
proof in establishing that he engaged in protected activity,
that adverse action was taken against him, and that the adverse
action was motivated, in part, by the protected activity.
Secretary of Labor/Paula v. Consolidation Coal Co., 2 FMSHRC 2786,
2797-2800 (Rev. Comm. October 1980), rev'd on other grounds, 663
F.2d 1211 C3d Cir. 1981); Secretary of Labor/Robinette v. United
Castle Coal, 3 FMSHRC 803, 817-18 (Rev. Comm. April 1981). The
operator may rebut by showing that no protected activity occurred, that there was no adverse action, or that the adverse
action was not motivated in any part by protected activity. The
operator may also defend affirmatively by showing that the

1253

adverse action was also motivated by the miner's unprotected
activity and that it would have taken the adverse action in any
event for.the unprotected activity alone. Secretary of Labor/
Paula v. Consolidation Coal Co., 2 FMSHRC at 2797-28001 Secretary
of Labor/Robinette v. United Castle Coal Co., 3 FMSHRC at
817-818; Bolch v. FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983).
The ultimate burden of proof never shifts from the miner. See
Robinette, 3 FMSHRC at 8171 Secretary of Labor/Paula v. ConSOiidation Coal Co., 2 FMSHRC at 2797-2800; Secretary of Labor/Robinette v. United castle Coal Co., 3 FMSHRC at 817-818; Bolch v.
FMSHRC, 719 F.2d 194, 195-196 (6th Cir. 1983). The ultimate burden of proof never shifts from the miner. See Robinette,
3 FMSHRC at 8i7; Secretary of Labor/Bush v.--uriion Carbide, 5
FMSHRC 993, 997, n.8 (Rev. Comm., June 8, 1983); Schultz v. Lizza
Industries, Inc., 6 FMSC~C 8, 16 (Rev. Comm., January 9, 1984).
II.

CYPRUS'S POSITION

It is Cyprus's position that there was no evidence of protected activity prior to Mr. Gibson's suspension on May 27, 1987,
and that Mr. Gibson did not make out a prime facie case concerning this discipline. Further, the raising of disparate treatment
by Mr. Gibson at the meeting of May 27 was not, in fact, protected activity but concerned only his treatment in comparison to
other employees. It is also Cyprus's position that the complaints concerning Mr. Otteson did not constitute protected activity. While Mr. Gibson did make a complaint concerning discipline for drug and alcohol use to MSHA on July 17, after he was
suspended pending discharge, there was no knowledge of this protected activity by management prior to his discharge. Mr. Gibson
did call MSHA on the morning of the meeting concerning his discharge but such activity was not protected because it did not
involve a safety issue but rather the attendance of his wife at
the meeting.
Cyprus contends that even if Mr. Gibson did engage in protected activity prior to his discharge, such activity did not
motivate his discharge in any part. Even if it did, Mr. Gibson
would have been discharged for unprotected activity alone; his
chronic absenteeism had reached a point at which Cyprus decided
that discharge was the only reasonable action Cyprus could take
since Mr. Gibson had failed to correct his attendance problems.
III.

THE MAY SUSPENSION

Mr. Gibson did not engage in any protected activity prior to
his suspension on May 27, 1987, for failing to perform his duties.
He made no complaints to either MSHA or the persons involved in

1254

his discipline concerning safety-related matters prior to his
suspension.
It has been stipulated that Mr. Gibson did not contact MSHA
with any complaints about discipline for drug and alcohol use at
the mine until July 17, 1987, long after his suspension in May.
The question the arises as to whether, prior to his suspension on
May 27, he made any safety complaints to the operator which could
arguably be construed as protected activity and thus a basis for
an argument that protected activity motivated his suspension.
Mr. Gibson conceded that he first raised the issue of discipline of persons who used drugs and alcohol on May 27 at the
meeting concerning his suspension. The context of his mentioning
of the issue, must, however, be examined.
On May 22, Mr. Gibson
had been suspended pending investigation for failing to perform
his duties.
After further investigation and consideration of the
issues by Cyprus, a meeting was held on May 27 to discuss this
matter with him.
Mr. Gibson was given the opportunity to present
information in order to explain his notations on company forms
and the deficiencies discovered by Messrs. Walz, Berdine,
Swinson, Foster, Morgan, and Mrs. Morris.
These issues were
discussed in the first part of the meeting and then a recess was
held.
During the recess, Messrs. Walz and Rising discussed the
information and arguments presented by Mr. Gibson and determined
that a suspension was warranted. They decided on an additional
18 working-day suspension in order to try to bring home the point
to Mr. Gibson that this performance needed to be corrected.
The meeting was then reconvened. When Mr. Rising told
Mr. Gibson that he was going to be suspended, Mr. Gibson reacted
and asked why he was being suspended when other persons who damaged equipment or used drugs or alcohol were not disciplined.
It
was not until after the suspension was announced that Mr. Gibson
raised this issue.
This complaint of disparate treatment was not activity protected under the Act.
It was not directed to a safety issue but
rather to a fairness issue. The circumstances of the making of
the statements clearly indicate that it was not intended to be a
safety complaint but rather was related solely to Mr. Gibson's
perception of the fairness of the discipline he was receiving.
It was raised defensively not out of a concern for safety miners
but rather out of reaction to the discipline he had received.
Under these circumstances, his statements should not receive the
protection of the Act. The Commission has indicated that its
function under section 105(c) is not to determine the fairness of
a particular action but to provide protection for activity under

1255

the Act. See,~' Bradley v. Belva Coal Co., 4 FMSHRC, 982
(Rev. Comm. June 4, 1982).
The question arises as to what constitutes proteced activity.
Section 105(c)(l) indicates that protection is offered to a complaint of an alleged danger or safety and health violation. See
Secretary of Labor/Gabossi v. Western-Fuels Utah, Inc., 10 FMSHRC
953, 958 (Rev. Comm. August 15, 1988). In this cae, Mr. Gibson's
"complaint" was not made for reason of safety. It appears that
it was designed only to divert attention from his own poor work
performance.
·
There is no evidence in the record that Mr. Gibson made any
other safety-related complaints to either Larry Walz or Charles
Rising prior to his supension meeting. The only evidence on the
record that could arguably be construed as a complaint is testimony about a dispute Mr. Walz and Mr. Gibson had in March 1986,
concerning the installation of a backup alarm. It was clear from
the credible evidence that this dispute involved no safety complaint but only a dispute as to how the job was to be performed.
This activity, even if it were considered to be protected, is too
remote in time from May 1987 to have any bearing on the issues
here. See Klimczak v. General Crushed Stone Co., 5 FMSHRC 684,
690 (ALJ Melick, April 6, 1983) (4 months too long to support
reference of connection>i Frazier v. Morrison-Knudson, Inc., 5
FMSHRC (ALJ Morris, January 19, 1983) (4 months too long to
support reference).
The May 27 suspension was not motivated in any part by purportedly protected activity involving Mr. Gibson's complaint of
disparate treatment since it was made after he was informed of
his additional suspension. Protected activity close in time to
adverse action may in some circumstances be considered as showing
a discriminatory motive but it can hardly be argued that protected activity, if Mr. Gibson's complaint of disparate treatment
was such, after the discipline has been decided upon and announced, in any way motivated the adverse action.
Even if the circumstances of this suspension are examined
further, it is clear that it was not motivated in any part by
protected activity.
Early in May there had been complaints from members of Ron
Foster's crew that Mr. Gibson was not servicing their equipment
properly, both from a lubrication standpoint and a fueling standpoint. These complaints were brought to Mr. Foster's supervisor,
Junior Morgan, who approached Patsy Morris. Mrs. Morris had prepreviously been involved in servicing of equipment and, upon

1256

inspection of the equipment, she and Mr. Morgan found that it was
not being serviced properly.
In order to make sure of their
conclusions, Mrs. Morris and Vernon Swinson, who was normally in
charge of the equipment at the concentrator, reinspected it the
next day and determined that the servicing had not been done or
was inadequate.
They then brought it to the attention of their supervisors
Messrs. Walz and Berdine, who also examined the equipment.
There was no doubt in any of their minds that the servicing had
not been done. They felt that the lack of servicing was obvious
and undisputable.
The only question was whether Mr. Gibson had
also falsified the company records concerning his activities.
Even after all of the inspections, Mr. Gibson was given an
opportunity to explain his actions. He was unable to do so,
although Messrs. Rising and Walz came to the conclusion that they
could not prove that Mr. Gibson had falsified the company records
because the records were too confusing and inconsistent. For
that reason, they did not discharge him but decided to give him
one last chance to correct his behavior.
The conclusion that the equipment was not serviced properly
is confirmed by the testimony of Ray Rubash, who had held the
particular position previously and had trained Mr. Gibson, and
who was assigned to it after Mr. Gibson was removed from it.
When Mr. Rubash resumed the position, he was required to do additional lubrication because it had not ben done for some time. He
also had to repair equipment and replace parts because of the
failure to properly lubricated the equipment.
The preponderance
of the evidence clearly establishes that Mr. Gibson had not been
performing his duties.
The suspension given to Mr. Gibson was severe, but it must
be considered in context. He had and extensive history of discipline and it appears from the record that his failure to perform his duties was deliberate. He could have been discharged,
but Messrs. Rising and Walz decided he could have one last chance.
By way of comparison, evidence was presented that an employee who
had damaged equipment through momentary inattention, was given a
suspension almost as long, and other employees who damaged equipment were discharged.
Even the testimony of Mr. Gibson casts doubt on the argument
that the May 27 suspension was motivated by protected activity.
Mr. Gibson stated that all the discipline that he received was a
result of personal animus against him by Larry Walz. For example, he claimed that the May 27 suspension was motivated by the

1257

fact that Mr. Cosner modified the warning issued on April 29 by
Mr. Walz.
He also said his first confrontation with Mr. Walz
occurred when he told Mr. Walz that he did not know what he was
doing. He claimed that his assignment to the job at the concentator upset Mr. Walz because he displaced Mr. Rubash, a friend of
Mr. Walz. 2/ If, in fact, these incidents were the basis of a
dislike of-Mr. Gibson by Mr. Walz, they are not protected activity under the Act.
If Mr. Gibson's conjectures are to be believed, Mr. Walz acted against him for personal reasons unrelated
to protected activity.
IV.

THE JULY DISCHARGE
A.

No protected activity prior to July 17

Between his supension on May 27 and his suspension with intent to discharge on July 17, Mr. Gibson did not engage in protected activity.
The fact that he did not do so supports the
argument that his discharge on July 21, for absenteeism and for
his poor work history, was not motivated in any part by protected
activity.
After his suspension on May 27, Mr. Gibson appealed it to
the Vice President and General Manager, W.J. Lampard. He and his
wife met with Messrs Lampard and Rising in early June. At that
time, Mr. Gibson did not raise the issue of drug and alcohol use
at the mine, rather, he told Mr. Lampard that Mr. Walz was treating him unfairly.
On June 12, there was an incident involving Robert Otteson,
a.supervisor at the mine, who sought admission to the mine when
he was off duty. The guard at the security gate believed that
Mr. Otteson was intoxicated and referred his request for admission to Mr. Corbitt, who was on duty that night. After some
discussion with Mr. Corbitt, Mr. Otteson left the mine because
he had been refused entry consistent with the existing policy at
the mine.
The next day, Mr. Otteson reported the incident to his
supervisor Kent Watson. The incident was investigated and
Mr. Otteson was warned that he would be discharged if a similar

~/

The evidence indicates that Mr. Gibson's belief concerning
personal animus was unfounded. Credible evidence was presented
that Mr. ~ubash gave up the job at the concentrator in an effort
to upgrade his pay scale.

1258

incident ever occurred. Credible evidence was presentd that if
Mr. Otteson had been on duty, he would have been discharged at
the time.
Apparently, Mr. Gibson, as a follow-up to his belief that
his suspension was not proper, complained to Chris Crowl, formerly the Human Resources Manager at Bagdad, at the time located
in the parent company's office in Englewood, Colorado, about the
Otteson incident •. It was Mr. Gibson's perception that
Mr. Otteson had not been disciplined and Mr. Gibson apparently
felt that this was unfair when considered with respect to his own
suspension.
Again, this contact with Mr. Crowl does not appear to constitute protected activity.
It appears to be a defensive measure by Mr. Gibson to bolster his arguments that his suspension
was unfair. As such, it does not represent protected activity.
B.

No protected activity motivated the July discharge

Mr. Gibson stipulated at the hearing that he did not contact
MSHA until July 17. At that time, he called them and discussed
his belief that Cyprus was not dealing appropriately with drug
and alcohol use at the mine. He followed up that telephone contact with a letter dated and sent on July 17 concerning this
issue. There is no evidence on this record that anyone in management who was involved in the decision to discharge Mr. Gibson,
was aware of this telephone contact or of the writing of the
letter.
It is well established that an operator must be aware of
protected activity to motivate action against an employee.
Schulte v. Lizza Industries, Inc., 6 FMSffRC 8, 15 (Rev. Comm.
January 9, 1984): Secretary of Labor/Bishop v. Mountin Top Fuel,
Inc., 2 FMSHRC 1126, (March 31, 1981): Buford Smith v. R.J.F.
CQaI Co., Inc., 11 FMSJRC 2050, 2055-6 (October 24, 1989):
Luttrell v. Jericaol Mining, Inc., 10 FMSHRC 1328, 1334 (September 30, 1988). There was no such knowledge here and the July 17
letter is found to be no part of any motivation for the
discharge.
It should, of course, also be noted that this contact with
MSHA occurred after Mr. Gibson had been suspended with the intent
to discharge him. He was suspended shortly after the start of
the shift on July 16 and this contact came after that.
Mr. Gibson did telephone MSHA on the day of his meeting
concerning his discharge. A dispute arose that morning about

1259

whether his wife would be permitted to attend the meeting. When
Mr. Gibson was told that he was entitled to have another employee
at the meeting but that his wife could not attend, he asked to
call MSHA. Mr. Rising dialed the number for him and left the
room during the conversation.
It does not appear that this contact was the type of activity intended to be protected by the Act. As far as the evidence
indicates, it did not involve a safety complaint, but one of disciplinary procedure. As such, it was not the sort of activity to
be protected under section 105(c).
Even if it is assumed, for the sake of argument, that
Mr. Gibson engaged in protected activity and that management was
aware of it, the evidence at hearing did not indicate that the
discipline given to Mr. Gibson was motivated in any part by the
protected activity. While it is often difficult to prove discriminatory intent directly, the Commission has discussed the
sorts of cirumstantial evidence of discriminatory intent that are
appropriate to consider. These include knowledge by the operator
of the miner's protected activities, hostility toward the miner
because of his protected activity, coincidence in time between
the protected activity and the adverse action and disparate
treatment of the complaining miner. See Secretary of Labor/
Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (Rev. Comm. November
1981), rev'd on other grounds, 709 F.2d 86 (D.C. Cir. 1983);
Sammons v. Mine Services Co., 6 FMSHRC 1391 (Rev. Comm. June
1984); Sharp v. Big Elk Creek Coal Co., 11 FMSHRC 382, 394
(March 20, 1989). An examination of these factors does not
indicate that the discharge was motivated, in any part, by protected activity.
There was limited knowledge of his protected
activity, no hostility toward the protected activity was shown
and there was no disparate treatment of Mr. Gibson.
The only action by Mr. Gibson which arguably can be considered protected is his telephone call on July 21 to MSHA about
the attendance of his wife at the meeting concerning his discharge. His letter of July 17 was not then known to management

1260

and could not have played a role in his discharge.
His complaints concerning Mr. Otteson were simply coqsidered to be
concerned about fairness of his suspension. ~/
The fact that a miner has a conversation with MSHA personnel
does not necessarily mean such conversation is protected activity.
See Hacker v. Black Streak Mining Co., 11 FMSHRC 2240, 2265 CALJ
Koutras November 9, 1989). Even protected activity close to time
to the adverse action may not be sufficient to show the connection between the two. Grafton v. National Gypsum, 12 FMSHRC 63,
66-67 CALJ Weisberger, January 12, 1990) Cone day).
In this case, the decision to discharge Mr. Gibson had, in
effect, been made prior to the meeting on July 21. Before the
meeting, Mr. Rising had consulted with both Messrs. Cosner and
Lampard concerning a discharge and they had concurred in the
decision.
The purpose of the meeting was to give Mr. Gibson one
last chance to explain his absences on July 14 and 15, which he
failed to do at the meeting.
Under such circumstances, no reliance on the closeness in
time is proper. See, ~' Lester v. Garden Creek Pocahontas
Co., 11 FMSHRC 1763 (decision made to discontinue position made
before safety complaints were made); Luttrell v. Jericoal Mining,
Inc., 10 FMSHRC 1320, 1331 (September 30, 1988).
Essentially, Mr. Gibson is relying here on conjecture to
show a nexus between any protected activity and his discharge.
This does not provide sufficient basis for showing that the protected activity is motivated in any part his discharge. See
Buelke v. Thunder Basin Coal Co., 11 FMSHRC 238, 244 February 16,
1989); Buford Smith v. R.J.F Coal Co., Inc., 11 FMSHRC 2050,

3/

Mr. Gibson offered certain evidence that Cyprus did not have
The credible testimony was
that a policy existed and was enforced and that a new policy had
been in the process of development for a considerable period before Mr. Gibson even claimed to make any complaints about the
lack of such a policy. Moreover, the tesimony about specific
incidents of discovery of drugs on the property is irrelevant
because there is no credible evidence that Mr. Gibson ever
discussed these incidents with Messrs. Walz, Rising, Morris,
Cosner, or Lampard.

a policy on drug and alcohol abuse.

1261

2055, n.2 (October 24, 1989). There was not evidence that either
the telephone call to MSHA or any other matter related to complaints about drug and alcohol abuse was discussed at the July 21
meeting or was a factor in the decision to discharge Mr. Gibson.
Also, it was undisputed that even if some of the incidents
that Mr. Gibson would rely upon are considered protected activity, there was a lack of knowledge of those incidents by all the
parties involved in his discharge. Mrs. Morris did not know of
the discussions at the May 27 meeting, was not aware of
Mr. Gibson's complaints about Mr. Otteson, and did not know of
the July 17, letter. Yet she recommended Mr. Gibson be
discharged.
Mr. Walz did not know about the July 17 letter or about
Mr. Gibson's complaints about Mr. Otteson, yet he believed
discharge was proper. Mr. ~ising did not know of the July 17
letter, yet he believed that discharge was appropriate.
I am satisfied from the record, that Mr. Gibson's discharge
was not related to any arguably protected activity.
It is undisputed that Mr. Gibson was absent on the two days in question.
It
is also undisputed that the attendance policy that he was subject to indicated that in the event of a second unexcused absence, he would be subject to discharge. When he called
Mrs. Morris to say that he would not be coming to work on July 14
he admitted that he knew the consequences of his actions.
In September 1986, prior to any arguably protected activity
by Mr. Gibson, he was placed on attendance guidelines that required him to maintain an unblemished attendance record and it
was clearly warranted. He had a history of discipline for attendance problems, a history that included a ten-day suspension
in lieu of discharge.
In 1986 his attendance was the worst of
any employee in the maintenance department.
When Mr. Gibson showed some improvements in his attendance,
the guidelines were reissued and relaxed to a degree.
Unfortunately, Mr. Gibson almost immediately violated those guidelines
and was absent from work on April 24. Under the guidelines he
was to receive a warning and that is what Mr. Walz gave him. His
appeal to Mr. Cosner raised the possibility that this warning
could be removed from his file, but reemphasized that the guide1 ines remained in effect.
On July 13, his supervisor permitted him to take partial day
off to attend a court hearing that he may well not have attended.
On July 14, after the start of the shift, Mr. Gibson called

1262

Mrs. Morris and told, not asked her, that he was taking the day
off. Their conversation made it clear that he was aware of the
consequences of his action. Later that day he called Mrs. Morris
at home to try to get a vacation day for the next day. This day
of vacation was neither promised to him by Mrs. Morris, nor ultimately granted.
He thus had two more unexcused absences from work. One was
sufficient basis for his discharge. He was unable to justify
either absence at the time of his meeting and his employment was,
by general consensus, terminated. This sort of action by an employee can properly be the basis of a discharge. See, ~'
Secretary of Labor/Brock v. Blue Circle, Inc., 11 FMSHRC 2181
CALJ Koutras, November 7, 1989) (abuse of breaks and unsatisfactory job performance); Sharp v. Elk Creek Coal Co., 11 FMSHRC 382
CALJ Koutras, March 20, 1989) (discharge for missing work);
Thompson v. Island Creek Coal Co., 11 FMSHRC 17 CALJ Maurer,
September 13, 1989) (employee discharged for failing to report to
work on one day).
Although Mr. Gibson claimed he was singled out by Mr. Walz,
an examination of the record of other employees who were placed
on attendance control programs shows no such disparate treatment.
On April 21, 1986, Clyde Burke was placed on attendance guidelines requiring him to have perfect attendance for 90 days.
On
June 2, 1987, he was once again placed on such guidelines. He
arrived one hour late to work on June 30, 1987, and was suspended
for five days, a greater penalty than Mr. Gibson received for the
first violation of his guidelines.
On November 21, 1987,
Mr. Burke was again one hour late to work and his employment was
terminated.
On March 18, 1987, Clifford Minter was placed on such guidelines. He missed a portion of one day to go to court and all of
the next day. He was suspended and was told that any further
absences would result in his termination. Duane Dahlin was
placed on similar guidelines also, in that he was given a final
warning that if he had further absences, his employment would be
terminated.
It is clear that Mr. Gibson was not singled out.
In
fact, it appears that he was treated somewhat more leniently than
his co-workers.
I

Mr. Gibs'on attempted to make an issue of the fact that
Mr. Walz, a superintendent, was directly involved in his discipline. The evidence was that Mr. Walz's involvement was not
unusual.
For/ example, the memorandum concerning the termination
of Mr. Burke'/s employment was signed by a superintendent, as were
his attend'a.n~e guidelines.
The memorandum terminating Robert

I
I

:
.

1263

Kesterson's employment for three absences was signed only by
Mr. Walz. Mr. Neely's letter of discipline was signed by his
superintendent.
The procedure was that the Vice President and General
Manager must concur in a decision to discharge an employee,
although he need not sign the letter of termination.
In this
case, both Mr. Lampard and Mr. Cosner, the Mine Manager, were
consulted and concurred on the decision.
It must also be recognized that in May, when he was suspended, Mr. Gibson was told that he should decide whether he
wanted to continue employment at Bagdad. He was instructed at
that time:
"If you fail to make a substantial improvement in
your overall performance, you will be terminated." Mr. 'Rising
was trying, by means of the lengthy suspension, to finally communicate to Mr. Gibson that he had to improve or he would be
terminated. Mr. Gibson's response was to take almost three days
off soon after he returned from his suspension. He took those
days off knowing that Mr. Walz would act against him.
violation of such a "last chance" policy such as Mr. Gibson
was under is not a violation of section 105(c). Mullins v.
Clinchfield Coal Co., 11 FMSHRC 1948 CALJ Koutras, October 3,
1989). Application of the absentee policy was not directed
solely at Mr. Gibson and no disparate treatment was shown. See
Sharp v. Big Elk Coal Co., 11 FMSHRC 382 (ALJ Koutras, March
1989). ?urther the policy was applied to Mr. Gibson long before
he even engaged in any arguably protected activity.
In evaluating the motivation in discharging Mr. Gibson, some
discussion is appropriate of Mr. Gibson's history of excuses concerning his absences. There was undisputed testimony from persons other that Mr. Walz that Mr. Gibson was in the habit of giving suspect excuses, usually after the fact, for his absences.
When Mr. Gibson's work record at Cyprus is considered as a
whole, it is clear that, as an employee, he had been given a
number of chances to demonstrate that his employment should be
continued. His discharge on July 21, 1987, was really the culmination of a career at Bagdad of absenteeism and unreliability.
The evidence shows that his discharge was not motivated in any
part by protected activity, and it also shows that, even if
protected activity played a part in his discharge, Mr. Gibson
would have been discharged in any event for his unprotected
activity in absenting himself from work.
In Bradley v. Belva Coal Company, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:

1264

As we emphasized in Pasula, and recently reemphasized in Chacon, the operator must prove that
it would have disciplined the miner anyway for the
unprotected activity alone.
Ordinarily, an operator
can attempt to demonstrate this by showing, for
example, past discipline consistent with that meted
out to the alleged discriminatee, the miner's unsatisfactory past work record, prior warnings to the miner,
or personnel rules or practices forbidding the conduct
in question.
our function is not to pass on the wisdom or fairness of such asserted business justif ications, but rather only to determine whether they
are credible and, if so, whether they would have
motivated the particular operator as claimed.
Cyprus has satisfactorily shown with credible evidence a
business justification for Mr. Gibson's May 27th suspension and
his July 21st discharge.
CONCLUSION OF LAW
1. Cyprus did not violate Section 105(c) of the Federal
Mine Safety and Health Act of 1977 ("the Act"), 30 U.S.C.
§ 815(c}.
2. Any protected activity that Mr. Gibson engaged in did
not in any part motivated his suspension on May 27 or his
discharge on July 21.
3. Even if the suspension and discharge of Mr. Gibson were
motivated in any part by the fact that he engaged in protected
activity, he would have been suspended and discharged for unprotected activity alone.

1265

ORDER
In view of the foregoing findings and conclusions, and on
the basis of a preponderance of all of the credible testimony and
evidence adduced in this case, I conclude and find that
Mr. Gibson has failed to establish that the respondent has discriminated against him or has otherwise harassed him or retaliated against him because of the exercise of any protected rights
on his part. Accordingly, his claims for relief ARE DENIED and
the Complaint and this proceeding and are DISMISSED.

~~

AUG T F. CETTI
Administrative Law Judge
Distribution:
Mr. Donald H. Gibson, 885 Munley Drive, Reno, NV 89503

R. Henry Moore, Esq., Buchanan Ingersoll, 57th Floor, USX Tower,
600 Grant Street, Pittsburgh, PA 15219

/ek

1266

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

JUN

8 1990
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 89-205
A.C. No. 36-07756-03508

v.
Kent No. 55 Mine
KENT COAL MINING COMPANY,
Respondent
DECISION
Appearances:

Evert Van Wijk, Esq., U.S. Department of Labor,
Office of the Solicitor, Philadelphia,
Pennsylvania, for the Petitioner;
R. Henry Moore, Esq., Buchanan Ingersoll,
Pittsburgh, Pennsylvania, for the Respondent.

Before:

Judge Maurer

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et
seq., the "Act," charging the Kent Coal Mining Company (Kent)
with a violation of the mandatory standard found at 30 C.F.R.
§ 48.26(a) and proposing a civil penalty of $1,000 for that
violation. The general issue before me is whether Kent violated
the cited standard and, if so, the appropriate civil penalty to
be assessed in accordance with Section llOCi) of the Act.
Pursuant to notice, a hearing on the merits was held in this
matter on January 18, 1990, in Pittsburgh, Pennsylvania. A
post-hearing brief was filed by the respondent on March 2, 1990,
and the Secretary waived its right to file post-hearing argument
by letter dated March 7, 1990. I have considered the entire
record of proceedings and the contentions of the parties in
making the following decision.
STIPULATIONS
The parties have agreed to the following stipulations, which
I ,accept:
1. That Kent Mine Number 55 is owned and operated by the
Kent Coal Mining Company and is subject to the jurisdiction of
the Federal Mine Safety and Health Act of 1977.

1267

2. The Administrative Law Judge has jurisdiction over these
proceedings.
3. Citation No. 2894017 and Order No. 2894016 were properly
served by a duly authorized representative of the Secretary of
Labor on an agent at the Ken·t Coal Mining Company and may be
admitted into evidence for the purpose of establishing due
issuance but not for the truth of the matters asserted therein.
4. Kent Coal Mining Company demonstrated good faith in the
abatement of the Citation and Order.
5. The assessment of a civil penalty in the proceeding will
not affect the Kent Coal Mining Company's ability to continue
business.
6. The appropriateness of the penalty, if any, to the size
of the coal operator's business should be based on the fact that
Kent Coal Mining Company No. 55's annual production is 30,440
tons and the annual production of it and its affiliated companies
which are also subsidiaries of the Rochester and Pittsburgh Coal
Company is 9,386,168 tons.
7. Fred Albright, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on May 12, 1980. Prior to becoming an employee of Kent,
Mr. Albright had been, since April 12, 1978, an employee of a
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation No. 2894017 on
March 10, 1989, he had last received annual refresher training
pursuant to 30 C.F.R. § 48.28 on October 28, 1988. His job
classification was that of a dragline oiler.
8. Ronald Boltz, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. Boltz had been, since September 5, 1972, an employee of a
predecessor surf ace coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 21, 1988. His job classification was that of a highlift
operator.
9. William c. Guntrum, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on April 27, 1982. Prior to becoming an employee of Kent,
Mr. Guntrum had been, since September 5, 1972, an employee of a·
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received

1268

annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 16, 1988. His job classification was that of a dozer
operator.
10. Charles D. James, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. James had been, since April 9, 1973, an employee of a
predecessor surface coal mining company which was acquired by
Kent.
Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 21, 1988. His job classification was that of a dozer
operator.
11. Charles R. James, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. James had been, since May 21, 1974, an employee of a
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
.
October 28, 1988. His job classification was that of a highlift
operator.
12. Ronald G. Peiffer, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. Peiffer had been, since May 24, 1972, an employee of a
predecessor surface coal mining company which was acquired by
Kent.
Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 28, 1988. His job classification was that of a dragline
operator.
13. David A. Scholl, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an e~ployee of Kent,
Mr. Scholl had been, since April 12, 1978, an employee of a
predecessor surf ace coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 21, 1988.
His job classification was that of a truck
operator.
14. James w. Tarr, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. Tarr had been, since April 3, 1978 an employee of a
predecessor surface coal mining company which was acquired by
Kent.
Prior to the issuance of the Citation, he last received

1269

annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 21, 1988. His job classification was that of a truck
operator.
15. Gilbert Woodley, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. Woodley had been, since June 13, 1974, an employee of a
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 21, 1988. His job classification was that of a dozer
operator.
16. Daniel R. Dunlap, Jr., who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on May 19, 1980. Prior to becoming an employee of Kent,
Mr. Dunlap had been, since June 4, 1979, an employee of a
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 21, 1988. His job classification was that of a mechanic.
17. W.R. Shondelmeyer, Jr., who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on May 12, 1980.
Prior to becoming an employee of Kent,
Mr. Shondelmeyer had been, since April 17, 1978, an employee of a
predecessor surf ace coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 28, 1988. His job classification was that of a fuel
truck operator.
18. Kevin J. Buggey, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on May 14, 1982. Prior to the issuance of the Citation, he
last received annual refresher training pursuant to 30 C.F.R.
§ 48.28 on October 28, 1988.
His job classification was that of
a serviceman.
19. Galen L. Smith, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979.
Prior to becoming an employee of Kent,
Mr. Smith had been, since May 22, 1972, an employee of a
predecessor surface coal mining company which was acquired by
Kent.
Prior to the issuance of the Citation, he last received
annual refresher training pursuant to C.F.R. § 48.28 on
October 21, 1988. His job classification was that of a highwall
miner operator.

1270

20. Carl A. Smith, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979~ Prior to becoming an employee of Kent,
Mr. Smith had been, since December 29, 1970, an employee of a
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 28, 1988. His job classification was that of a highwall
miner operator.
21. Samuel T. Peace, Jr., who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on September 27, 1979. Prior to the issuance of the Citation, he
last received annual refresher training pursuant to 30 C.F.R.
§ 48.28 on October 21, 1988.
His job classification was that of
a serviceman.
22. John E. Valkosky, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on December 3, 1979. Prior to becoming an employee of Kent,
Mr. Valkosky had been, since April 19, 1974, an employee of a
predecessor surface coal mining company which was acquired by
Kent. Prior to the issuance of the Citation, he last received
annual refresher training pursuant to 30 C.F.R. § 48.28 on
October 28, 1988.
His job classification was that of a fork
lift operator.
23. Herman M. Blakley, who was referred to in Citation
No. 2894017, became an employee of the Kent Coal Mining Company
on May 21, 1984. Prior to the issuance of the Citation, he last
received annual refresher training pursuant to 30 C.F.R. § 48.28
on October 20, 1988. His job classification was that of a shift
foreman.
24. At the time of the issuance of Citation No. 2894017,
Edward F. Nett, Jr., who was referred to in Citation No. 2894017,
was an employee of Metec, Inc., a contractor at the Kent No. 55
Mine. Prior to the issuance of the Citation, he last received
his annual refresher training, pursuant to 30 C.F.R. § 48.28, on
October 21, 1988.
25. At the time of the issuance of Citation No. 2894017,
Vince Henderson, who was referred to in Citation No. 2894017, was
an enployee of Metec, Inc., a contractor at the Kent No. 55 Mine.
Prior to the issuance of the Citation, he last received his
annual refresher training, pursuant to 30 C.F.R. § 48.28, on
October 21, 1988.
26. At the time of the issuance of Citation No. 2894017,
Paul Gilbert, who was referred to in Citation No. 2894017, was an

1271

employee of Metec, Inc., a contractor at the Kent No. 55 Mine.
Prior to the issuance of the Citation, he last received his
annual refresher training, pursuant to 30 C.F.R. § 48.28, on
October 28, 1988.
27. At the time of the issuance of Citation No. 2894017,
Randall K. Oslonian, who was referred to in Citation No. 2894017,
was an employee of Metec, Inc., a contractor at the Kent No. 55
Mine. Prior to the issuance of the Citation, he last received
his annual refresher training, pursuant to 30 C.F.R. § 48.28, on
February 6, 1989.
28. Prior t6 being assigned to the Kent No. 55 site, the
miners who were referred to by name in the Citation had
previously worked at other mine sites operated by Kent but having
different MSHA identification numbers. They did not receive
newly experienced miner training pursuant to 30 C.F.R. § 48.26(a)
related specifically to this particular mine site prior to
crnnmencing work at the Kent No. 55 mine site.
29. The miners referred to by name in the Citation were, as
of the date of the Citation, experienced miners as defined in
30 C.F.R. § 48.22(b).
DISCUSSION AND FINDINGS
Citation No. 2894017, issued on March 10, 1989, charges a
violation of the mandatory standard found at 30 C.F.R. § 48.26(a)
and alleges:
The following employees of Kent No. 55 mine, Ronald
Boltz, Bill Guntrum, David Scholl, Kevin Buggey, Dan
Dunlap, James Tarr, Bill Shondelmeyer, Fred Albright,
Sam Peace, Gilbert Woodley, Edward Nett, Jr., Randall
Oslonian, Galen Smith, Vince Henderson, Paul Gilbert,
John Valkosky, Charles James, Carl Smith, Ronald
Peiffer, Charles James and Herman Blakley were working
at the 001 pit without first being given training under
48.26(a) 30 C.F.R. The employees were transferred to
this mine approximately three weeks ago and have had
annual training under ID No. 36-02854 but, no such
training was provided for this mine site. A 1045/order
(No. 2894016) has been issued in conjunction with this
citation.
At the hearing and on the record, the above citation was
amended to allege a non-S&S violation and also to delete the name
of Herman Blakley, who was a supervisor at the mine.
It is MSHA
policy that supervisors are not required to undergo the training
requirements of Part 48.

1272

That amendment left twenty miners named in the citation.
All are experienced miners. Sixteen of them are Kent employees
of relatively long standing. Most have been with Kent for over
ten years. The other four named miners are employees of Metec,
Inc., a contractor hired by Kent to assist in the operation of
the highwall mining machine leased from Metec. These four miners
had worked at Kent locations for approximately one year. They
had most recently been assigned to the Brick Church site along
with the majority of the Kent employees cited herein.
Kent operates a number of relatively small surface mining
sites under various MSHA ID numbers.
In early 1989, February or
March, Kent began to move some of its mining equipment and miners
from its Iselin 10 and Brick Church sites to its Kent No. 55 site.
The MSHA ID number for this site (No. 55) had previously been
assigned to another site approximately 2000 feet away known as
the Kent No. 56 Mine.
The miners at the Kent No. 55 site were operating the same
equipment that they operated at the sites where they had
previously been assigned and performing the same sort of tasks.
The Brick Church and Iselin 10 sites were similar to the Kent No.
55 site. All had highwalls; the ground control plans and
communications set-ups were similar, and the safety procedures
were the same. Furthermore, they worked for the same Kent
supervisory personnel that they had worked for at the previous
mine sites.
When a miner was assigned to a new work location, he would
receive instructions from his supervisor as to his duties when he
arrived at the site, but he was not formally given the newly
employed experienced miner training set out in 30 C.F.R.
§ 48.26(a).
Inspector Kopsic based the citation he issued on an
unwritten MSHA policy which mandates newly employed experienced
miner training whenever a miner transfers from one mine site to
another if the MSHA mine identification numbers are different.
The critical feature of this policy is the mine identification
number.
If the mine site has a different ID number than the mine
site where the miner was previously assigned to work, even if
for the same employer, this triggers a requirement for newly
employed experienced miner training. This is the case even if
the two mines are right next to each other. On the other hand,
an operator can have as many different mines as he wants under
the same ID number, miles apart from each other, as long as all
the mines are in the same county and inspected out of the same
MSHA field office.
In the latter case, the employer is free to

1273

transfer his workers to and among his various sites without
concerning himself with the newly employed experienced miner
training.
Kent's position in this case is that the twenty miners at
issue here are not newly employed experienced miners required to
be trained under 30 C.F.R. § 48.26(a) because they did not change
employers when they changed job sites.
"Newly employed" is not
specifically defined in the regulations and Kent urges that a
commonly accepted definition of the term be used.
That is, that
a "newly employed" person is a "newly hired" person, not an
employee who merely shifts his worksite, but does not change his
employer.
As between the two interpretations, Kent's is clearly the
more reasonable.
It gives effect to the usual meaning of the
words "newly employed". Moreover, the Secretary's interpretation
as implemented by its unwritten policy, creates a distinction
based solely on mine ID numbers which is arbitrary at best.
Using that interpretation, if the three Kent surface mine sites
mentioned herein were located in the same county in Pennsylvania
and were inspected out of the same MSHA field off ice, and if the
operator requested it, they could be assigned the same Mine ID
number and no section 48.26(a) training would be required in this
instance.
However, in this situation, the operator requested a
different ID number for this particular site, and the training is
therefore required.
This policy/interpretation lacks any
rational basis in my opinion.
Therefore, I find that the Secretary's policy in this case
is not entitled to deference. To begin with, it just doesn't
make any common sense as a practical matter.
If a miner can be
transferred by his employer from one job site to another, ten or
fifteen miles away, and be required to undergo section 48.26(a)
training depending only on whether or not his employer put the
same mine ID number on the second worksite, that is nonsense.
It
also has nothing to do with being newly employed. Secondly, the
"policy" is unwritten.
It is not included in the 1988 Program
Policy Manual which purports to contain all MSHA policies
concerning training and retraining of miners under Part 48.
Accordingly, even assuming this interpretation of the standard or
"policy" exists, there apparently was no notice of it to the
public or more specifically to the mine operators.
In Secretary v. Garden Creek Pocahontas Co., 11 FMSHRC 2148
(1989), the Commission addressed a particular interpretation of
the Secretary that was not contained within the plain language of
the standard in the following language:
A regulation cannot be applied in a manner that fails
to inform a reasonably prudent person of the conduct
required.
11 FMSHRC at 2152.
1274

In this case, the interpretation of "newly employed
experienced miner" espoused by the Secretary, fails to provide
any reasonable notice of the conduct required and, for that
reason also should be rejected.
The miners involved in this case were all experienced miners
and they all had current annual refresher training under 30 C.F.R.
Part 48.
I conclude that this is all that Part 48 requires given
the facts of this case. No violation of 30 C.F.R. § 48.26(a)
existed because none of these miners was a newly employed miner
by virtue of the fact that his employer moved him from Iselin 10
or Brick Church to Kent No. 55. Nothing concerning their
employment status changed as a result of this transfer.
ORDER
Based on the above findings of fact and conclusions of law,
I;r IS ORDERED:
Citation No. 2894017 IS VACATED, and no penalty may be
assessed.

urer
s rative Law Judge
Distribution:
Evert H. van Wijk, Esq., U.S. Department of Labor, Office of the
Solicitor, Room 14480-Gateway Building, 3535 Market St.,
Philadelphia, PA 19104
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll Professional Corp., 58th
Floor, 600 Grant St., Pittsburgh, PA 15219 (Certified Mail)
/ml

1275

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

JUN

81990

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

CIVIL PENALTY PROCEEDING
Docket No. VA 90-8
A.C. No. 44-06497-03503

v.
No. 1 Mine
FLIPPY COAL COMPANY, INC.
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Maurer

This case is before me upon a petition for assessment of
civil penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act). Petitioner has filed a motion to
approve a settlement agreement and to dismiss the case.
A
reduction in penalty from $1486 to $1286 is proposed.
I have
considered the representations and documentation submitted in
this case, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section llOCi) of the
Act.
WHEREFORE, the motion for approval of settlement is GRANTED,
and it is ORDERED that respondent pay a penalty of $1286 within
30 days of this order.

urer
ative Law Judge
Distribution:
Javier I. Romanach, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Mr. Carl Davis, Flippy Coal Company, 106 Suffolk Avenue,
Richlands, VA 24641 (Certified Mail)
/ml

1276

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

JUN 111990
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 89-425-M
A.C. No. 04-05021-05501

v.

Darwin UG

BLUE RANGE MINING COMPANY,
L.P.,
Respondent
DECISION
Appearances:

George B. O'Haver, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California
R.D. Haddock, HOLME ROBERTS & OWEN, Salt Lake City,
Utah,
for Respondent.

Before:

Judge Lasher

This proceeding was initiated by the fililng of a proposal
for assessment of civil penalty by Petiioner on October 2, 1989,
pursuant to Section llO(a) of the Federal Mine Safety and Health
Amendments Act of 1977, 30 u.s.c. § 801, et~
At the outset of hearing on May 23, 1990, the parties entered negotiations and ultimately announced their amicable resolution of the issues arising out of the four enforcement documents (three withdrawal orders and one citation). Pursuant to
their agreement, and upon further review and re-evaluation by
Petitioner, various modifications of the four enforcement documents (described in my order below) are to be made which, because
of their mollification of the original evaluations of the penalty
assessment factor of gravity as to each violation, result in
reductions in the penalties originally and administratively
assessed by Petitioner. The settlement agreement was proposed
and considered on the record at the hearing and my bench decision
approving such is here affirmed.
ORDER
1. Withdrawal Order No. 3463394 is MODIFIED to change the
"Gravity" of the violation described in Section 10.A. of the
Order from "Highly Likely" to "Unlikely," to change the degree of
"Negligence" involved appearing in paragraph 11 of the Order from
"Moderate" to "Low," and to delete the "Significant and Substantial" designation of the violation appearing at paragraph 10.C.
of the Order. A penalty of $50 is assessed for this violation.

1277

2. Citation No. 3463395 is MODIFIED to change the degree of
"Negligence" involved from "Moderate" to "Low." A penalty of $55
is assessed for this violation.
3. Withdrawal Order No. 3463396 is MODIFIED to change the
degree of Negligence involved from "Moderate" to "Low." A penalty of $300 is assessed.
4. Withdrawal Order No. 3463398 is MODIFIED to change the
"Gravity" Designation from "Highly Likely" to "Unlikely," to
change the degree of Negligence involved from "Moderate" to
"Low," and to delete the "Significant and Substantial" designation of the violation appearing in the Order. A penalty of $50
is assessed.

5. Respondent, if it has not previously done so, shall pay
to the Secretary within 30 days from the date hereof the sum of
$455 as and for the civil penalties agreed to and above assessed.

~t:---·~,/-~ ;;:;~~-.! /t -·

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
R.D. Haddock, Esq., HOLME ROBERTS & OWEN, 50 South Main Street,
Suite 900, Salt Lake City, UT 84144 (Certified Mail)
George B. O'Haver, Esq., Office of the Solicitor, U.S. Department of Labor, 71 Stevenson Street, Suite 1110, San Francisco,
CA 94105
(Certified Mail)
Mr. Larry c. Hoffman, President, Blue Range Mining Company, L.P.,
56 East Mercury, Butte, MT 59701 (Certified Mail)
/ek

1278

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

June 13, 1990

CIVIL PENALTY PROCEEDING

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

Docket No. CENT 89-161-M
A. C. No. 41-03014-05507

v.

Nunneley Quarry

J. R. THOMPSON INCORPORATED,
Respondent
ORDER VACATING DEFAULT
ORDER APPROVING SETTLEMENT
ORDER TO PAY
Before:

Judge Merlin

This matter is before me pursuant to Order of the Commission
dated June 12, 1990.
Upon review of the file I determine that sufficient grounds
exist to grant relief from the default. Accordingly, it is
ORDERED that the default dated February 6, 1990, be and is hereby
VACATED.
Upon review of the proposed settlement agreement I determine
that the settlement amounts are appropriate and that the suggested mode of payment is reasonable.
The Solicitor has orally
advised that the operator is making payments in accordance with
the settlement agreement. Accordingly, it is ORDERED that the
proposed settlement agreement in all respects be and is hereby
APPROVED.
It is further ORDERED that the operator continue to make
payments in accordance with the settlement agreement until the
entire sum due is paid.

Paul Merlin
Chief Administrative-Law Judge

1279

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

JUN 13 1990
DONALD F. DENU,
·complainant

v.

..

AMAX COAL COMPANY,
Respondent

DISCRIMINATION PROCEEDING
Docket No. LAKE 90-26-D
VINC CD 90-02
Ayrshire Mine

ORDER LIFTING STAY
Before:

AND DISMISSING PROCEEDINGS

Judge Melick

Complainant requests approval to withdraw his Complaint
the captioned case. Under the circumstances her in, the
request is granted. 29 C.F.R. § 2700.11. The S ay Order
previously issued is accordingly
w lifted and :his case is
therefore dismissed.

udge
Distribution:
Susan E. Chetlin, Esq., Crowell &
Avenue, N.W., Washington, DC 200

100 Pennsylvania
(Certified Mail)

Mr. Donald F. Denu, R.R. #1, Box 333, Rockport, IN
(Certified Mail)
Amax Coal Company, P.O. Box 40, Chandler, IN
(Certified Mail)
nt

1280

47610

47635

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

~JUN 1 j 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINIS'rRATION CMSHA),
on behalf of
DONALD F. RADOS,
Complainant

DISCRIMINATION PROCEEDING
Docket No. PENN 90-106-D
PITT CD 90-06
Livingston Portal
Eighty-Four Complex

v.
BETH ENERGY MINES, INC.,
Respondent

ORDER OF DISMISSAL
Before:

Judge Melick

The Secretary of Labor requests approval to withdraw its
Complaint in the captioned case on the grounds that she now
believes there is insufficient evidence to establish a
violation of Section 105Cc) of the Federal Mine Safety and
Health Act of 1977. Under the circumstances herein,
permission to withdraw is granted. 29 C.F.R. § 2700.11.
This case is therefore dismissed. The undersig ed has no
authority in this case to modify the statutory filing
requirements in a potential fut re case so the request of the
Secretary to permit the ind'vi al miner "a pe iod of 30 days
to file a complaint on his wn b half" is deni d.

Distribution:
Linda M. Henry, Esq., Office of th Solicitor, U.S.
Department of Labor, Room 14480 Gateway Bldg., 3535 Market
Street, Philadelphia, PA 19104
(Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, Professional
Corporation, 57th Floor, 600 Grant Street, Pittsburgh, PA
15219 (Certified Mail)
Paul Girdany, Esq., Healey Whitehill, 5th Floor, Law &
Finance Bldg., Pittsburgh, PA 15219 (Certified Mail)
nt

1281

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

JUN 13 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-6
A. C. No. 46-07679-03501 Z2J

v.
Wolfe Mine
NOONE ASSOCIATES, INC.,
Respondent
DECISION
Appearances:

Wanda M. Johnson, Esq., Office of the Solicitor,
U. S. Department of Labor, Arlington, Virginia,
for the Secretary~
Mr. Robert A. Kaufman, Treasurer, Noone
Associates, Inc., Stanaford, West Virginia, for
the Respondent.

Before:

Judge Weisberger

Statement of the Case
In this case, the Secretary (Petitioner) seeks a civil
penalty for the alleged violation by the Operator (Respondent) of
30 C.F.R. § 48.26(a).
Pursuant to notice, the case was heard in
Charleston, West Virginia, on April 3, 1990.
Ronald Vincent
Marrara and Thomas P. Stockdale testified for Petitioner, and
Clifford William Farris testified for Respondent.
At the
hearing, time was reserved for the Parties to submit Proposed
Findings of Fact and a Brief.
Petitioner submitted its Proposed
Findings of Fact and Memorandum of Law on May 9, 1990.
Respondent did not file any Proposed Findings of Fact or Brief,
but filed, on May 16, 1990, a rebuttal to Petitioner's
submission.
Stipulations
At the hearing, the Parties indicated that they entered into
the following stipulations:
1.
The Administrative Law Judge has the jurisdiction to
hear and decide this case.

1282

2.
Inspector Ronald Marrara was acting in his official
capacity when he issued Citation No. 3114222.
3. Citation No. 3114222 was prciperly served to the
Respondent's agents.
4.
Abatement of the conditions cited in Citation No. 3114222
was timely.
5. The proposed penalty of $56.00 will not adversely affect
the Respondent's ability to continue in business.
6.
If the Secretary establishes that the violation existed,
then the amount of $56.00 is an appropriate civil penalty under
30 u.s.c. § 820(i).
7.
As of this date, the Respondent has no history of previous violations.
8.
The training requirements under 30 U.S.C. § 825(a) and
30 C.F.R. § 48.21 et ~· were in effect at the time the Citation
was issued.
9.

The employee had not received training under 30 C.F.R.

§ 48.26 prior to the date of the Citation.

10. On the date of the alleged violation, the employee was
performing the same duties as a coal sampler that he had
performed at other mine sites.
11. The employee was working as a coal sampler on the mine
site at the time that the Order was issued.
12. For purposes of 30 U.S.C. § 713(d) and 30 C.F.R.
§ 48.21-§ 48.31, on the date of the alleged violation, the
Respondent was operating as an independent contractor who was
performing coal testing/sampling services.
13. The Respondent had an agreement with a third party to
perform coal testing/sampling at the Wolfe Mine site.
Findings of Fact and Discussion

I.
In May of 19.39, Respondent had an agreement with a third
party to perform coal testing/sampling at the Wolfe Mine site.·
On M.ay 3 0, 19 89, .Respond.=nt' s employee, Cl if ford William Farris,
was wor;cin<J at the Wolfe Mine site performing modified flow
sam;;>ling, which required him to taKe coal samples from the pile.

1283

Farris had approximately 5 years experience as a coal sampler and
in addition, performed this type of testing approximately
100 times at other localities. Farris indicated that, as part of
his duties·, at each site that he takes coal samples, he is
required once a year to sign a form indicating that he had
received hazard training. When he entered the site in question
on May 30, he received and read a one page statement entitled
Hazard Training (Surface).
Among the items set forth in this
document is a Section entitled "Heavy Equipment Hazards."
(Secy. Ex. 6, Page 2). Subparagraph C. provides as follows:
"Beware of where equip1nent is moving at all times and make sure
the operator is aware of your presence before boarding any
equipment."
(Secy. Ex. 6, page 2).
In essence, Farris indicated
that when he entered the subject site, he asked the end-loader
operator where he should stand, and he informed the latter what
he planned to do at the site that day.
Ronald Vincent Marrara, an MSHA Inspector, indicated that
when h~ inspected the pit area on May 30, 1989, he observed
Farris taking samples out of the pile and that " ••• it seemed to
me that he was not aware of his surroundings."
(Tr. 11).
Thomas P. Stockdale, the Owner and President of Tri-State Safety
Services, Incorporated, who provides safety training to employees
of the Wolfe Mines, indicated that he had also observed Farris.
He opined that Farris was" ••• not really observant about the
end-loader," and was" ••• more concerned with his sampling."
(Tr. 66).
According to Marrara, Farris was not making eye
contact with the end-loader operator.
He indicated that he
observed Farris walking away from the coal pile and the
end-loader.
He said that Farris did not look around at the
end-loader which was backing up, and that the loader stopped
within a few feet of Farris before it went forward to drop its
load of coal.
According to Stockdale, the end-loader was a new
machine and the operator had been on that machine for only
2 weeks.
A.ccording to Marrara, the manner in which the
end-loader was being operated, i.e., backing up and turning
around at the same time after picking up a load of coal, was not
unusual.
Marrara indicated that he was of the opinion that there was
not adequate communication between Farris and the end-loader
operator. When he ascertained from Farris that the latter did
not have training pursuant to 30 C.F.R. § 48.26(a), hs issued a
Section 104(a) Citation and a Section 104(g)(l) Order.
Subsequent to the issuance of the Citation and Order, and in
order to abate the same, Stockdale conducted oral training with
Farris.
He indic'.'l.ted that in his opinion Farris was knowledgable
and had told him (Stockdale) that he knew the machine (end-loader),
and the work that was being performed at the site.
Accordin9 to
Stockdale, he reviewed with Farris the particulars of safety pursuant to Section 48.26, supra.
Specifically, with regard to hazards

1284

occasioned by the work environment and the end-loader, he explained
to Farris that the end-loader was a new machine, and the work being
performed at ·the site constituted a new job. He indicated that he
told Farris to make sure that he caught the eye of the end-loader
operator, to keep a safe distance back of the end-loader, and not to
approach until the operator waved him on.
He explained, that due to
the height at which the end-loader sits on the machinery, it is
difficult for the operator to see an individual close to the loader.
He explained to Farris various head movements in order to signal the
operator. He indicated that, if the safety training had not been
provided, then the following could have happened:
"If Mr. Farris
was unobservant as to the danger in the pit" he could be "obviously"
hurt by the end-loader or one of the environmental hazards of the
highwall (Tr. 64).
Farris was asked, essentially, to indicate the matters contained in Stockdale's training that he was not familiar with.
As
a response, he indicated the location of an amergency telephone,
and the fact that the operation at the site did not involve
shooting dynamite. Marrara indicated that after the Citation and
Order in question had been abated, the basic procedures at the
site were the same. He offered his opinion that, after the citation had been abated, and Farris n~sumed working, he was "more
alert to his surroundings."
(Tr. 90).
II.
At the hearing, the Parties indicated that they stipulated
that the only issue was that of the gravity of the violation, and
Respondent indicated that it conceded that it did violate
Section 48.26Ca), supra. Based upon the evidence of record, as
well as Respondent's concession, I find that Respondent did
violate Section 48.26Ca) as alleged.
III.
It is the position of Petitioner that the violation herein
should be considered to be significant and substantial.
An
analysis of this aspect of the cade is to be governed by the
principles set forth by the Commission, in Mathies Coal Company,
6 FMSHRC 1 (January 1984).
In Mathies, supra, the Commission set
forth the elements of a "significant and substantial" violation
as follows:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1)
the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that
is, a measure of danger to safety--contributed to by

1285

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, supra, at 3-4.)
As set forth above, (II., infra), the evidence has established chat Respondent did violate Section 48.26(a), supra, and
as such the first element of Mathies, supra, has been met.
The
Secretary, pursuant to Mathies, supra, must now establish "a
discrete safety hazard - that is, a measure of danger to safety
contributed to by the violation;" (Mathies, supra, at 3-4).
In
essence, according to Marrara, a hazard was present inasmuch as
Farris did not have eye contact with the end-loader operator, was
not fully aware of his surroundings, and that accordingly, "it
was most probably highly likely", that he was going to be seriously injured. (Tr. 17). In this connection, Farris did not
contradict the version testified to by Marrara, that he (Farris)
was not looking at the end-loader when it backed up, and stopped
within a few feet of him. Also, according to Marrara, inasmuch
as Farris did not make eye contact with the operator, to ensure
that the latter would know his location, the operator would worry
as to the former's location, could be distracted, and thus an
accident causing an injury to the operator was likely to occur.
In 9ssence, Marrara was asked specifically to indicate how
Farris' lack of training contributed to the hazard involving the
end-loader.
He indicated, in essence, that the safety training,
(Section 48.26(a), supra), as contrasted to the hazard training
contained in the document read by Farris on the morning of
May 30, is "in greater depth and detail" (Tr. 19).
Stockdale,
who actually gave the training under Section 48.26Ca), supra,
noted that training thereunder is specific for a particular job
site and its hazards. Further, with regard to the impact of the
Section 48.26(a) training, Marrara opined that prior to such
training, Farris was not fully awar~ of his surroundings, and
Stockdale indicated that he (Farris) was more concerned with
sampling. Marrara indicated that subsequent to the training,
Farris was more alert to the surroundings.
I find this evidence inadequate to positively establish that
the lack of training in the specifics contained in Section 48.26(a),
contributed to the hazard of Farris being injured by the end-loader.
The fact that Farris appeared more alert to Marrara after the
Section 48.26(a) training was provided to him, does not establish
that the specific information provided to him by Stockdale minimized
the hazard of an injury caused by the end-loader.
It is conceivable
that the enhanced alertness exhibited by Farris, was as the result
of his performing in the presence of the MSHA Inspector Marrara and
the Safety Instructor Stockdale. Further, it might be implied ti1at
the lack of Section 48.26(a) training contributed to the hazard of
an injury occasioned by the end-loader, based upon proof that such

1286

training did decrease the risk of such a hazard. However, I find
that the evidence has not established such an effect of the
Section 48.26{a) training. Specifically, I find that the evidence has not established that the Section 48.26{a) training
orovided to Farris by Stockdale inoarted to Farris any new infor~ation which minimized the hazard ;f an injury from the end-loader.
In this connection, I note that Petitioner did not offer any
evidence to impeach the credibility of Farris' testimony or to rebut
his testimony, that the only new information contained in
Stockdale's training to him that he was not familiar with, had to do
with the location of an emergency telephone, and the fact that the
mine was not involved in shooting dynamite.
Further, although
Stockdale indicated that the end-loader operator was new to the job,
and was operating a new machine, Marrara indicated on
cross-examination that the manner in which it was qperated, i.e.,
the operator backing it up and turning it around at the same time,
was not unusual. Further, Farris' testimony has not been impeached
or contradicted that he had performed similar work in the past,
informed the end-loader operator what he intended to do on the day
in question, asked the latter where he was supposed to stand, and
felt that he was aware of the end-loader at all times.
In addition,
although Stockdale indicated that he informed Farris to be sure and
catch the operator's eye, to stay back a safe distance from the
end-loader, not to approach the end-loader until the latter waved
him on, and he related the usage of various head signals, Stockdale
did not indicate that Farris did not already have knowledge of these
particulars.
I thus conclude that it has not been established that
the training provided to Farris by Stockdale, i.e., training under
Section 48.26{a), contained any significant new information that
Farris was not previously aware of.
It thus has not been estab· 1ished that the Section 48.26{a) training significantly decreased
the hazard of an injury.
I also find that the record does not establish that there
was a reasonable likelihood that the hazard of an injury in the
pit araa would result in an injury producing event. Marrara
opined that it was reasonably likely that Farris would have been
injured or killed if he continued working in the pit area.
He
also noted the possibility of an injury to the end-loader
operator.
However, taking into account Farris' experience, and
the fact that it has not been established that the Section 48.26{a)
trai~ing imparted any significant information that Farris did not
already know with regard to the hazards at the pit area, I conclude that it has not been established that an event causing
injury was reasonably likely to occur.
Thus, I conclude that the evidence has failed to establish
that the failure of Respondent to have provided Farris with
Section 48.26{a) training contributed to the hazard of an injury

1287

from the operation of the end-loader. Thus, I conclude that it
has not been established that the violation herein was signif icant and substantial (See, Mathies, supra). 1/
IV.
The Parties have stipulated that if it is established that
the violation herein existed, then $56 is an appropriate civil
penalty. Based upon the evidence of record and the statutory
factors contained in Section llOCi> of the Act, I too, conclude
that a penalty of $56 is appropriate.

I/ ·I reject Petitioner's argument, as advanced in its brief,
in essence, failure to provide training under
Section 48.26(a} supra,~ se, constitutes a significant and
substantial violation.
In support of its position, Petitioner
relies on Dolet Hills Mining Venture, 11 FMSHRC 1122 (1989)
decided by Judge Koutras.
Inasmuch as Dolet Hills, supra,
involved a failure to provide annual refresher training pursuant
to 30 C.F.R. § 48.28(a) which inter alia mandates a minimum of
8 hours training in session not less than 30 weeks if given
periodically, it is not relevant to the instant proceeding which
involves a violation of § 48.26, supra, which does not contain
such mand:ites.
Similarly, Westwood Energy Properties, 11 FMSHRC
105 (1989), rev'd on others grounds, 11 FMSHRC 2408 (1989), is
not relevant to the instant case.
In Westwood, supra, Judge
Broderick, in concluding that the violations of Section 48.26
therein were necessarily likely to result in a serious injury,
found that the newly employed experienced miners therein had not
previously worked in a culm bank, which in the opinion of the
inspector presented unique hazards.
In contrast, in the case at
bar, Farris had significant experience at sites similar to
Respondent's operation. Lastly, Frank Irey, Jr., Inc., 11 FMSHRC
990 (1989), is not relevant to the instant case.
In Frank Irev,
supra, Judge Melick found that the significant and substantial
nature of the violation of Section 48.28, supra, was indicated by
th'9 exi:3tence of another violation at the same site where the
untrained ~in8rs ~ere ~orking, for burning and welding in the
presence of coal dust.
Such evidence is lacking in the case at
bar.

~hat,

1288

ORDER
It is ORDERED that Order No. 3114221 be AFFIRMED.
It is
further ORDERED that Citation No. 3114222 be AMENDED to reflect
the fact that the violation described therein was not significant
and substantial.
It is further ORDERED that Respondent shall,
within 30 days of this Decision, pay $56 as a penalty for the
violation found herein.

Distribution:
Wanda M. Johnson, Esq., Office of the Solicitor, u. S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Mr. Robert A. Kaufman, Treasurer, Noone Associates, Inc., Box 9,
Stanaford, WV 25927-0009 (Certified Mail)
dcp

1289

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

JUN 14 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION, CMSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDING

.

Docket No. CENT 89-129-M
A.C. No. 14-01467-05504
Portable No. 1 Mine

WALKER STONE COMPANY, INC.,
Respondent
ORDER OF DISMISSAL
ORDER TO PAY
~

This case came before me pursuant to a Commission Order
dated February 16, 1990. On February 21, 1990, the Solicitor
and operator were ordered to submit information and the
operator was ordered to file an answer to the penalty
petition. On March 13, 1990, the operator was granted an
extension to file its answer, order for it to review a
recently issued decision in another one of its cases.
(Walker Stone Company, 12 FMSHRC 256 (February 1990)) In a
letter dated May 14, 1990, the operator, advises that it has
decided not to pursue this matter.
In light of the foregoing it is ORDERED that this case
be DISMISSED, and that the operator PAY $178 within 30 days
of the date of this order.

Distribution:
Robert J. Murphy, Esq., Office of the Solicitor, U.S.
Department of Labor, 1585 Federal Building, 1961 Stout
Street, Denver, CO 80294 (Certified Mail)
Mr. David S. Walker, President, Walker Stone Company, Inc.,
Box 563, Chapman, KS 67431 (Certified Mail)
nt

1290

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

22041

June 15, 1990

KATHLEEN I. TAR.MANN,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 89-56-DM

INTERNATIONAL SALT COMPANY,
Respondent

MD 89-10
Cleveland Mine
DECISION

Appearances:

Before:

Daniel Kalk, Esq., Valore, Moss & Kalk, Cleveland,
Ohio for Complainant;
Josephs. Ruggie, Jr., Esq., Thompson, Hine and
Flory, Cleveland, Ohio for Respondent.

Judge Melick

This case is before me following remand by the Commission on
January 8, 1990, (and by subsequent reassignment to the
undersigned on April 26, 1990) for a determination of whether in
fact a binding settlement agreement had been reached between the
parties.
In its Remand Order the Commission observed, quoting
from Peabody Coal Company, 8 FMSHRC 1265 at page 1266 (1986) that
"the record must reflect and the Commission must be assured that
a motion for settlement [approval], in fact represents a genuine
agreement between the parties, a true meaning of the minds as to
its provisions." More particularly, at issue in this case is
whether a binding settlement agreement was consummated during an
October 26, 1989, teleconference between then counsel for the
Complainant, Richard Valore, and then counsel for the Respondent
Keith Ashmus.
The validity of a settlement or release agreement is in the
first instance governed by the applicable contract law and that
law is ordinarily the law of the place where it is made--in this
case the State of Ohio. Williston on Contracts, Third Edition §
1792. U.S. v. ITT Continental Baking Company 420 U.S. 223, 238
(1975); Glazer v. J.C. Bradford and Co., 616 F.2d 167, 169
(5th Cir. 1980); Village of Kaktovika v. Watt 689 F.2d 222, 230
(D.C. Cir. 1982). In certain cases involving litigants under a
nationwide federal program however, federal law may control.
U.S. v. Kimbell Foods, Inc., 440 U.S. 715, 727 (1979); Mid South
TOWTng v. Harwin, Inc., 733 F.2d 386, 389 (5th Cir. 1984),

1291

Fulgance v. J. Ray McDermett & Co., 662 F.2d 1207, 1209 (5th Cir.
1981). Since there is no conflict in the basic principles of
contract law here at issue there is no need to decide in this
preliminary analysis which law is applicable.
In this case, upon reviewing the evidence introduced at
hearings on the issue, I find that the Respondent has failed to
sustain its burden of proving that a sufficiently definite and
certain offer was made that could in any event result in a
binding settlement agreement.
In this regard when given the
opportunity at hearing to set the background and to specifically
describe the terms of the settlement "offer", the Respondent's
principal witness, Mr. Ashmus, responded in the following
colloquy:
[By Mr. Rugge] Q. Did you subsequently receive
authority from International Salt Company to settle for
$3,000?
[Mr. Ashmus] A. Under certain circumstances, yes.
Q. And what were those circumstances?
A. Well, they did not want to pay anything directly to
the Complainant, Miss Tarmann; they said that the money
would have to go to Mr. Valore for attorney's fees and
then he could do whatever he wanted with the money;
they said they wanted to make sure that she would not
welch on the agreement because of past experiences with
her, and they said we had to make sure it would settle
all of the claims.
Q. Did you then call Mr. Valore to discuss this matter
and communicate that to him?
A. Yeah.
I called him on the next day, which would
have been the 2 -Q.

26?

A.

26. And told him that, and I said I specifically --

THE COURT:

Told him what?

A. Told him that I -- that the client had indicated a
willingness to go along with the figure but that .the
of fer hasn't come from their side, it had to have .
authority from his client, it had to be payment tq,him
and i t had to cover everything.

1292

Q. After you reviewed each of those points of agreement
that your client had authorized to you, did Mr. Valore
have a response?
A. Yeah, he said he'd get back to me.

Q. Did he, in fact, get back to you?
A. Yes, he did.

Q. And what was his response when he did get back to
you?
THE COURT:

Was that on the same day?

A. Same day, a little later in the morning. He said
that he had talked to his client and that she was
accepting of it, and we went over all four points
again, and I said, "Fine. Then I'm authorized to
accept the of fer." And we talked a little bit about
the fact that it was $3,000 and he was going to have to
get something to his client, and so I was going to
prepare the release documents so that he wouldn't have
to put in any time doing that. And he said to get the
money to him as quickly as possible so that we could
get everything signed up, and I said that I would get
the check to him as soon as I could and that at the
latest I would get it to him would be on Monday.

Q. And did you, in fact, get the check to him as well
as the release document even before Monday?
A. Yes, that was delivered to his office on Friday.
(Tr. 24-26).
Within this framework of evidence I cannot find that a
sufficiently definite or certain offer had been made, whether by
Mr. Ashmus or, as Respondent claims, by Mr. Valore, during the
telephone conversations on October 26, 1989. See General Motors
Corp. v. Keener Motors, Inc., 194 F.2d 669 C6th Cir. 1952); Lyles
v. commercial Lovelace Motor Freight Inc, 684 F.2d 501, 504 (7th
Cir. 1982); U.S. v. Orr Construction Co., 560 F.2d 765, 769 (7th
Cir. 1977). Accordingly no contract could have been consummated
during these telephone conversations.
It is apparent fro.en the record, moreover, that the parties
contemplated that there would be no binding agreement until
committed to writing and signed by the Complainant herself. This
was the understanding of Mr. Valore according to his testimony at
hearing and also the clear inference to be drawn from Mr. Ashmus'

1293

version of the October 26, 1989, telephone conversations.
The fact that a precisely drawn written offer, providing details
not discussed during the teleconferences was thereafter prepared
by Mr. Ashmus and delivered to Valore corroborates this.
Significantly that document states that this case "has been or
will be settled" thereby further indicating an existing lack of
finality.
(Appendix A)
There is in any event an overriding public interest under
the Federal Mine Safety and Health Act of 1977 and in particular
under the provisions of Section 105(c) of that Act, warranting
Commission overview and approval of all settlement agreements.
It would indeed. be difficult to find in any case that this public
interest would be served by compelling enforcement of any
settlement when the individual miner/complainant has not accepted
the proposed agreement. See Peabody Coal Co., 8 FMSHRC 1265,
1266 (1986); Secretary on behalf of John Koerner v. Arch Mineral
Coal Co., Docket No. DENV 78-564 (March 1979).
(Appendix B).
Williston on Contracts, supra, Section 1792.
It is clear from
the credible testimony of the Complainant herein that she neither
offered nor accepted any settlement agreement.
ORDER
Respondent International Salt Company has failed to
sustain its burden of proving that a binding settlement agreement
existed in the captioned proceeding and accordingly this case
will proceed with trial on the merits as pJteviously s</heduled
commencing August 28, 1990, at 9:00 a.m. itj\Cleveland~~Ohio.

~

~

-~

\t~.' ' ~". y,..
',,}jv·., v

l

~ '"--

y Melick
\\
Administrative 'tlaw Judge
Distribution:

\

·t~
v

\

\~

Daniel Kalk, Esq., Valore, Moss & Kalk, 75 Public Square,
Suite 300, Cleveland, OH 44113 (Certified Mail)
Joseph A. Ruggie, Esq., Thompson, Hine and Flory, 1100 National
City Bank Building, 629 Euclid Avenue, Cleveland, OH 44114-0370
(Certified Mail)
nt

1294

APPENDIX A

October 27, 1989

(216) 566-5723

VIA MESSENGER
A. Richard Valore, Esq.
Valore, Moss & Kalk
75 Public Square, Suite 300
Cleveland, Ohio 44113
Re:

Kathleen I. Tarmann v. International Salt Comnanv

Dear Dick:
Enclosed are three duplicate originals of the Release in the abovecaptioned matter, plus a check dra~-n to your order in the amount of $3,000.00.
Please hold the check in escrow pending the execution of the Release by Ms.
Tannann (including its witnessing, approval by you and notarization), and the
return of two executed originals to me. At that time, you may then negotiate
the check.
Please call me if you have any questions.
Very truly yours,

Keith A. Ashlllus
KAA/cah
Enclosures

1295

RELEASE

00 NO'!' SIGN WTTBOlIT RF.A.DING A.ND UNDERSTANDING
I, KATHLEEN I. TAR.l.fANN, on behalf of myself and my heirs, successors
·and assigns, in consideration of the payment of attorneys' fees to my attorney,
A. Richard Valore, Esq., in the amount of THREE THOUSA.~1) AND N0/100 001..LARS
($3r000.00), the receipt of and sufficiency of which are hereby acknowledged,
hereby release and forever discharge AKZO Corporation, International Salt
Company, and their officers, directors, shareholders, agents, assigns,
subsidiaries and affiliates (collectively referred to hereafter as "AKZO") from
all claims, costs, damages, demands, liabilities and causes of action, including
claims for attorneys' fees, which I now have or ever had from the beginning of
the world to the date of this Release, including, without limitation on the
general nature of this Release, any and all claims, costs, damages, demands,
liabilities or causes of action arising out of or connected in any way with:
1.
Any subject matter that was or could have been raised in my
compliant in the case of Kathleen I. Tarnann v. International Salt Comnanv,
Docket No. LAKE 89-56-DM, MD-10, U.S. Mine Safety & Health Review Commission,
which case has been or will be settled and dismissed with prejudice and which
I agree never to refile in any form or forum;

2.
Any subject matter that was or could have been raised in my
compliant in the case of Kathleen I. Tarmann v. International Salt Cornoanv,
Charge No. 220891426, U.S. Equal Employment Opportunity CoI:III1ission, which case
has been or will be settled and dismissed with prejudice and which I agree never
to refile in any form or forum;
3.
Any subject matter that was or could have been raised in my
compliant in the case of Kathleen I. Tarmann v. International Salt Companv, Case
No. 8-CA-21410, National Labor Relations Board, which case has been or will be
settled and dismissed with prejudice and which I agree never to refile in any
form or forum;
4.

Hy employment with AKZO;

5.
to employr.ient;

The termination of my e.oployment \•ith AKZO and my reinstate.!:lent

6.

Hy membership and activity in Teamsters Union Local No. 436;

and
7.
Any other claim that AKZO violated any statutory, contractual
or coI:l!:lon law obligation owed to me, including, without limitation, any civil
rights, labor relations or employment contract law.

Initials

Page 1 of 3 Pages

1296

I ~arrant the follo~ing:
1.
That no promise er
as herein set forth;

induce~ent

has been offered to ce except

2.
That this Release is executed without reliance upon ·any
statei:ient by the parties released or their representatives except as herein set
forth;

3.
That I am legally competent to execute this Release and accept
full responsibility for doing so;
4.
That this Release evidences the cocpromise of claims disputed
both as to liability and amount;

5.
whatsoever; and

That AKZO does not ad.mi t

to any liability or wrongdoing

6.
That I have not assigned or attempted to assign any claim or
part thereof that I have or claim to have against AKZO.
I acknowledge that the terms of the settlement of my claics are
confidential and agree not to reveal the existence of the settlei:ient or the terms
to any person.
I have read and understand the terms of this Release.

IN WI11i"ESS
~~~~~~~~

WHEREOF, I have set my hand
, 1989, at ~~~~~~~~~~' Ohio.

Kathleen I. Tarmann

Witness

Witness

APPROVED TO AS FORM:

Valore, Moss & Kalk
A. Richard Valore, Esq.
Counsel for Kathleen I. Tannann

Initials

this

Page 2 of 3 Pages

1297

day

of

STATE OF OHIO

)

)

SS:

COUNTY OF CUYAHOGA)

BEFORE ME, a Notary Public in and for said County, personally
appeared KATHLEEN I. TARMANN, who swore to the accuracy of the statel:lents
contained in the foregoing instrument, acknowledged that she read, understood
and personally signed the foregoing instrument and affirmed that the same was
and is her free act and deed.
this

IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal
day of
, 1989, at
, Ohio.

Notary Public
(SEAL)

Initials

Page 3 of 3 Pages

1298

APPENDIX B

~i30

K Si'RE::'.T :NI. 5TH

WASHINGTCN, D.C.

~LCOR

March 9, 1979

20006

SEc::..::T.\.RY OF t..AEoR.
~·!EE

SAFETY ,\~ HEALTH

ADHI~GSTRATION

(}1SHA) ,

On behalf of John Koerner,
Applicant

~o.

DE~!V

73-564

v.
ARCH :MINERAL COAL COMPANY,
Respondent
DIRECTION FOR REVIEW Ai.'lD ORDER

The decision of the Administrative Law Judge, dated February 7,
1979, is directed for review. We find that the Judge's decision may be
contrary to law or Commission policy, or that a novel question of policy
is presented.
On September 12, 1978, the Secretary filed with the Commission his
findings that John Koerner had brought a complaint of unl:iwful discrimination
by Arch Mineral Coal Company, and that the complaint was not frivolously
brought. He moved that Mr. Koerner be reinstated to· his former position,
or equivalent position,until a final Corr.mission order on the complaint
is issued. The motion was granted. On January 31, 1979, the Secretary
filed a motion to vacate the order of reinstatement. The only stated
basis for the motion was that "the parties have successfully negotiated
a settlement of all matters formally in issue." Judge Halcolm P. Littlefield
noted the ground for the motion, stated that "[a]s a result [of the
settlement], continuation of the reinstatement order serves no p~rpose",
and granted the motion to vacate. The terms of the settlement were not
entered into the record; the record also does not disclose whether
Mr. Koerner agreed to or acquiesced in the motion to vacate the reinstatement order.
The issue is:

Were there sufficient grounds to grant the motion?

The Commission concludes that the record should be supplemented
we resolve this issue. Accordingly, we remand this case to
Judtie Littlefield for the li~ited purpose of supplementing the record

bef~re

1299

with answers to the following questions: What are the terms of the
settlement agreement? Did Mr. Koerner agree to or acquiesce in the
motion to vacate the order of reinstatement? The Commission otherwise
retains jurisdiction of this case. The parties need not file briefs
unless the Commission requests them t~··•b·

\. ,

LUnc.u, :

~~-+-~~~~~~~~~~~~~~

Jerome R. Waldie, Chairman
er

1300

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

22041

JUN 19 1990
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 89-261
A. C. No. 15-11065-03577

v.

No. 10 Mine

SHAMROCK COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,
U. S. Department of Labor, Nashville, Tennessee,
for the Secretary;
Neville Smith, Esq., Smith & Smith, Manchester,
Kentucky, for the Respondent.

Before:

Judge Weisberger

Statement of the Case
On October 19, 1989, the Secretary (Petitioner) filed a
Proposal for Assessment of Civil Penalty alleging the Operator
(Respondent) violated various provisions of Volume 30 of the Code
of Federal Regulations.
Respondent filed an Answer on November 15,
1989.
Pursuant to notice, the case was scheduled for a hearing on
February 14, 1990, in Bristol, Virginia.
On February 5, 1990,
Respondent filed a Motion to have the hearing scheduled at some
place other than Bristol, Virginia, on the ground that the driving
time between Respondent's home office and Bristol, Virginia, is
approximately 3 hours.
Respondent indicated that Petitioner did
not have any objections to the Motion.
The hearing was subsequently rescheduled for Richmond, Kentucky, and the matter was
heard on February 14, 1990. At the hearing, John Walter Peck
testified for Petitioner, and Elmer Richard Couch and Gordon Couch
testified for Respondent.
Petitioner filed Proposed Findings of
Fact and a Memorandum of Law on May 14, 1990.
Respondent did not
file any brief or Proposed Findings of Fact.
Stipulations
1. The history of previous violations of this Operator is
shown in Government's Exhibit 1.

1301

2.
The penalties proposed by the Secretary for the violations upheld are appropriate to the size of the business of the
Operator, and will not affect the Operator's ability to continue
in business.
3. The Operator demonstrated good faith in attempting to
achieve rapid compliance after notification of the violations,
where appropriate.
4.
The size of this operation is shown in the pleadings:
for 1988, this Operator produced 22,631,844 tons; and at the
No. 10 Mine, where these citations arose, the Operator produced
1,438,937 tons in 1988.
Citation Nos. 9983904 and 3205192
At the commencement of the hearing, Counsel indicated that a
settlement had been reached with regard to Citation Nos. 9983904
and 3205192. The Operator had agreed to pay in full the assessed
penalties of $79 and $112 respectively.
I have considered the
representations made by Counsel, at the hearing as well as the
documentation in this ffiatter, and the criteria set forth in
section llOCi) of the Federal Mine Safety and Health Act of 1977
(the Act), and conciude that the proffered settlement and the
agreed upon penalties are appropriate.
Citation Nos. 3202975 and 3205191
On May 23, 1990, Petitioner filed a Joint Motion to Approve
Settlement. A reduction in penalty from $290 to $150 is proposed.
I have considered the representations and documentation submitted
in this matter, and I conclude that the proffered settlement, and
the agreed upon penalty, are appropriate under the criteria set
forth in Section llO(i) of the Act.
Citation No. 3205136

I.
On July 10, 1989, John Walter Peck, an MSHA Inspector,
inspected the surface area of R~spondent's No. 10 Mine.
He
issued a Section l04(a) citation alleging a violation of 30 C.F.R.
§ 77.205(b) in that "travelways," to areas where persons are
raqui~ed to travel or work, were not kept clean of stumbling or
slipping nazards. Specifically the citation alleges that
seven foot wooden posts, sections of round pipe, coiled cable,
concrete ~locks, and "assorted equipment parts," and communication
wire we:ce "in the travelway used to reach number 1 head drive and
the area where work persons load./unload man trips" (sic).

1302

30 C.F.R. § 77.205(b), provides as follows:
"Travelways and
platforms or other means of access to areas where persons are
required to travel or work, shall be kept clear of all extraneous
material and·other st1.1mbling or slipping hazards."
According to Peck, the number 1 belt conveyor head-drive, at
the surface area, is enclosed by a fence.
Entry to the belt, for
examination each shift, and for maintenance work, is by way of a
gate in the fence.
According to Peck the "travelway" or "walkway"
to the gate was "obstructed" with mater"ial, (Tr. 33), and it was
not possible to walk to the gate from the yard without stepping on
the items designated in Government Exhibit 11.
He indicated that
one would have to climb over the crib blocks and miscellaneous
items to reach the gate.
On direct examination, he testified that
"i;nmediately in front" of the gate, he observed crib blocks of the
dimensions of 6 inches by 6 inches by 30 inches.
(Tr. 21).
On
cross-examination, he indicated that there were 2 or 3 such crib
blocks located 4 to 6 feet from the gate.
I accord more weight to
this latter testimony as to the specific distance of the crib
blocks to the gate, rather than Peck's general testimony on direct
examination.
Hence, taking into account the fact that the crib
blocks were approximately 4 to 6 feet from the gate, and considering that there is no testimony with regard to the configuration
of the blocks or the manner in which they were arranged, I cannot
find that they constituted a stumbling or slipping hazard.
According to Peck, two metal battery stands and a battery
charger were located 2 to 3 feet from the crib blocks.
Inasmuch
as there was no evidence presented as to the shape and dimensions
of these items, I cannot conclude that they constituted stumbling
or slipping hazards.
Similarly, although Peck indicated that
th~re was some wire within the fenced area, however, there was no
evidence presented as to its size, shape, and specific location
vis-a-vis a path that could be taken from the gate to the belt or
to some other area within the fence requiring maintenance work.
Thus, I cannot conclude that the wire constituted a stumbling or
slipping hazard.
Peck indicated that a trailing cable containing 200 feet in
a coil was in the area, and one going to the gate could stumble
over it or become entangled in it.
Inasmuch as there is no
evidence of the dimension of the surface area in question, nor is
there any evidence in the record as to the spatial relationship
between the trailing cabla and the gate, I cannot conclude that
the cable was in any path that would be traveled by miners
seeking accass t~ the gate.
Nor is there evidence that miners
perform any work duties in the surface area in question, aside·
from the fenced in area.

1303

According to Peck, a 20 inch section of a plastic water
pipe, with a 2 inch diameter, was within the fenced area.
Elmer
Richard Couch, Respondent's superintendent in charge of the
No. 10 Mine, indicated that a pipe was not within the tenced area
when he checked it out.
There is no evidence that he checked it
out at the time of Peck's inspection.
Thus, I find Couch's
testimony to be insufficient to contradict the testimony of Peck,
that he observed the pipe in question when he made his inspection.
I thus find that there was a water pipe of the dimension testified to by Peck within the fenced area, which, considering its
length, and cylindrical shape, could constitute a stumbling or
slipping hazard.
Peck testified that he observed miners exiting from a rail
runner.
In essence, he indicated that he saw miners climbing and
crawling over timber which had been placed on either side of the
track within 2 feet of the rail runner.
According to the
uncontradicted testimony of Peck, there were 16 timbers of
approximately 6 inches in diameter and 67 feet in length.
The
timbers were located unevenly on either side of the rail runner.
They had been sta~~ed one on top of another to a pile of approximately 4 feet high.
Some of the timbers were on the ground.
I
find that the pile of timoers, in the path taken by the men
exiting the rail runner as observed by Peck, constituted a
slipping or stumbling hazard.
Inasmu~h as the area in question contained timbers and a
pipe in araas where men work and travel, and these items are
stumbling and slipping hazards, I find that Respondent herein did
violat~ section 77.205(b), suura.

II.

According to PecK, a person tripping or stumbling could
easily fall on the battery charger, which had sharp edges,
causing lacerations or broken bones.
He indicated, on cross.examination, that there was a very good likelihood that someone
stumbling over the hazardous equipment could have injured himself.
He indicated that a person climbing over the timbers in exiting
the rail runner could have fallen backwards and struck the rail
runner.
He opined that, in such an event, it was very possible
there would be a serious injury, such as a laceration or broken
bones.
I find, with regard to the pipe and timbers, that,· upon
tri~ping or stumbling, one could have fallen against a battery
charger or other objects.
It nas not been established that there
was a reasonable likelihood that a person would stumble or slip
over this material, rather than walk over it or around it.
Further, due to the lack of evidence of the dimensions of the
battery charger and stands, and their distance from the pipes,
and other materials, I cannot conclude that thera was a reasonable likelihood of one stumbling and sustaining sarious injury.

1304

Further, I find, based on the uncontradicted testimony of Couch,
that normally it was the procedure for the rail runner to stop
between a battery charger and the truck haul-way, and not alongside the timbers.
Further, I note, as testified to by Couch,
that the rail runner has a length of approximately 25 feet.
There is no evidence that the 7 foot timbers were stacked in such
a fashion as to have stretched over a 25 foot distance parallel
to the tracks.
Accordingly, the men exiting the rail runner,
from its edges at either side, would not necessarily have been in
the path of the stacked timbers.
For these reasons, I conclude
that Petitioner has not established that the violation herein was
significant and substantial (See, Mathies Coal Corporation,
6 FMSHRC 1, 3-4, (1984)).
III.
There is no evidence before me with regard to the length of
time that the material in question had been in place prior to
its' being observed by Peck.
I consider too hypothetical Peck's
statement that, given the amount of material in question, it
" • • • would had to have accumulated over a two or three shift
period" (Tr. 27).
Further, as noted, Couch's testimony was not
contradicted that usually the rail runner did not park alongside
the stacked timbers.
I thus find that Respondent herein acted
with only a moderate degree of negligence.
Taking into account
the remaining factors in llOCi> of the Act, I conclude that a
penalty of $80 is appropriate.
Citation No. 3205139
Peck testified that on July 10, 1989, he examined the Daily
Report of the presnitt examiner, and noted that the reports of
the preshift examinations from June 30, 1989 to July 10, 1989,
were signed by tne preshift examiner, but were not countersigned
by either the foreman or superintendent. Couch indicated that he
was the superintendent and line foreman on July 10, 1989. He
indicated that among his ju~ies were to check the preshift
reports to see if any hazards or dangerous conditions were noted
by the preshift examiner. He indicated that, unless there were
dangerous conditions, which required immediate attention, it was
his normal practice to countersign the preshift examination
report between 5:50 a.m. and 6:20 a.m.
He said that on July 10,
he did countersign the report ~etween 5:50 a.m. and 6:30 a.m.
He
indicated that prior to Peck's inspection on July 10, previous
MSHA Inspectors had considered it acceptable for him to countersign.
I observed the demeanor of the witnesses and find Couch's
testimony to be credible with regard to his countersigning the·
reports on July 10.
Peck issued Citation No. 3205140 alleging a violation of
30 C.F.R. § 57.323, on the ground that the reports in question
wer~ not countersigned by the foreman.

1305

Section 57.323, supra, in its first sentence requires the
mine for-eman to countersign the Daily Report.
In the last sentence, it requires the mine superintendent or assistant
superintendent to also countersign the reports.
Although Couch
indicated that he was the mine foreman, he nontheless testified
that in the period in question, Jerry Farmer was the section
foreman, and he (Peck) was the superintendent in charge of all
three shifts.
I find that a plain reading of Section 75.323
requires that both tne mine superintendent and foreman countersign the reports.
Inasmuch as Farmer was the foreman, he was
obligated to countersign the reports.
Inasmuch as the latter did
not countarsign the reports from June 30 to July 10, I find
Reaponctent her~in violated section 75.323 as alleged. Considering
the statutory factors set forth in section llOCi) of the Act, I
conclude that a penalty of $20 is appropriate.
Citation No. 3205140
Peck testified that in the two or three times he had visited
the mine in the year prior to July 10, 1989, he had observed
timbers standing on the left side of the haulage track.
He indicated that on July 10, in a 500 foot area, some of these timber
posts were on the ground and some were missing.
He said that he
observed men walking along the left side of the haulage track.
He also observed draw-rock, ranging from 6 inches by 1 inch to
18 inches by 3 inches by 3 feet, in various areas of the roof.
He raquired the Operator to scale down the draw-rock,as he opined
that this loose material could cause a fatality.
He indicated
that the roof, consisting of shale material, had deteriorated,
and thus timbers were necessary for support.
In this connection,
he indicated that timbers functioned in the same way as bolts in
supporting the roof.
Peck issued Citation No. 3205140 alleging a violation of
30 C.F.R. S 75.202(a) in that at least 56 posts "installed as
additional roof support" were observed lying on the mine floor.
30 C.F.R. § 75.202Ca) provides, in assence, that the roof or
areas where persons work or travel " • • • shall be supported or
otherwise controlled to protect parsons from hazards related to
falls of the roof, face or ribs and coal or rock bursts."
Gordon Couch, Respondent's safety director, acknowledged
that there was deterioration of the roof caused by differing
moisture conditions in the winter and summer.
He indicated,
however, that in addition to the proper setting of roof bolts as
required by the roof control plan, additional bolts were provided
as well as strapping.
According to Couch, the timbers, which
were not treated, were accordingly subject to rot, and were not
to be used permanently.
He indicated that when the section in

1306

question was "rehabilitated" (Tr. 123) in 1983 or 1984, timber
jacks were used when the area was bolted, as the bolter did not
have an automatic temporary roof support.
He indicated that the
deterioration of the roof is controlled by scaling down the
draw-rock, and that timbers prevent deterioration only for the
diameter of the timber.
It appears from the testimony of both witnesses, that when
observed by Peck, the roof in question did suffer from deterioration, and contained draw-rock which presents a hazard of falling.
In light of this condition, I conclude that the support present
on July 10, had not been adequate to prevent deterioration and
draw-rock.
Accordingly, the roof was not being adequately
suppo~ted.
Thus, I find that on July 10, as observed by Peck,
Respondent was in violation of section 75.202Ca) as alleged.
Considering the presence of significant amounts of drawrock, I conclude that the violation herein was of a moderate
level of gravity.
Considering the remaining statutory factors of
section llO(i) of the Act, I conclude that a penalty herein of
$112, as assessed, is appropriate.
ORDER
It is ORDERED that, within 30 days of this Decision,
Respondent pay the sum of $553, as civil penalty for the violations found herein.

(!J:2__ ~

Avram Weisberger
Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, u. s. Department
of Labor, 2002 Richard Jonas Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Neville Smith, Esq., Smith & Smi~h, Shamr~ck Coal Company, Inc.,
110 Lawy~r Street, Manchestec, KY 40962 (Certified Mail)
dcp

1307

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

JU M 19 tOOQ
il

I,)...;\

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 89-176
A.C. No. 46-06596-03513

v.
Pretzel Excavating Mine No. 1
PRETZEL EXCAVATING,
Respondent
DECISION
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner:
Edward Andrew Moss, Safety Consultant, Pretzel
Excavating, Morgantown, West Virginia, for the
Respondent.

Before:

Judge Koutras
Statement of the Case

This is a civil penalty proceeding initiated by the petitioner against the respondent pursuant to section llO(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 820(a),
seeking civil penalty assessments for four alleged violations of
certain mandatory safety standards found in Parts 77 and 50,
Title 30, Code of Federal Regulations. The respondent filed a
timely answer contesting the alleged violations and a hearing was
held in Morgantown, West Virginia. The parties waived the filing
of posthearing briefs. However, I have considered the oral
argument made by the parties during the course of the hearing in
my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
conditions or practices cited by the inspector constitute violations of the cited mandatory safety standard, (2) whether two of
the alleged violations were "significant and substantial" (S&S),
(3) whether one violation was the result of the respondent's

1308

unwarrantable failure to comply with the cited standard, and
(4) the appropriate civil penalties to be assessed for the violations, taking into account the statutory civil _penalty assessment
criteria found in section llO(i) of the Act. Additional issues
raised by the parties are disposed of in the course of this
decision.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977;
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c.

3.

Commission Rules, 29 C.F.R.

§

§

820(i).

2700.1 et seq.

Discussion
The parties settled two of the alleged violations in this
case, namely, section 104(a) non-S&S Citation No. 3100981,
January 17, 1989, 30 C.F.R. § 50.20, and section 104(a) non-S&S
Citation No. 3100743, March 7, 1989, 30 C.F.R. § 77.1110. The
respondent agreed to pay the full amount of the proposed civil
penalty assessments for the violations in question.
Pursuant to
Commission Rule 30, 29 C.F.R. § 2700.30, the settlement was
approved from the bench, and my bench decision in this regard is
herein affirmed (Tr. 5). The remaining contested citations which
are the subject of this case are as follows:
Section 104(d) (1) "S&S" Citation No. 3119190, October 31,
1988, 30 C.F.R. § 77.1605(k):
A berm or guard is not provided on the right outer
bank of the elevated roadway beginning at the top of
the hill near the sedimentation pond and extending
toward the main road a distance of approximately 1/10
of a mile. The berm is also inadequate at the outer
selected areas where the berm had weathered down. All
of the cited areas were shown to an agent of the operator. These conditions were observed at pit 010-0
(Rowesville job).
Section 104(b) Order No. 3113195, November 2, 1988,
30 C.F.R. § 77.1605(k).
No effort had been made to provide berms or guards
on the right outer bank of the elevated roadway
beginning at the top of the hill near the sedimentation
pond and extending toward the main road a distance of
approximately 1/10 of a mile. No effort had been made
to provide additional berms at three selected areas
where the berms had weathered down. These conditions

1309

existed at pit 010-0 (Rowesville job). Vehicles used
to transport persons had been used over this haul road.
The abatement for such violation (Number 3113190, dated
10-31-88) had expired.
Section 104(a) "S&S" Citation No. 3113191, October 31, 1988,
30 C.F.R. § 77.410.
The D9H dozer (Serial Number 90V5231) was not
equipped with an automatic warning device which gave an
audible alarm when the equipment was put in reverse
(back-up alarm). The back-up alarm was present and
would sourid an alarm when a switch was engaged but
would not alarm automatically when the equipment was
put in reverse. This condition existed at pit 020-0
(campground job).
Section 104(b) Order No. 3113194, November 2, 1988,
30 C.F.R. § 77.410.
An inadequate effort had been made to provide the
D9H dozer (Serial Number 90V5231) with an operational
automatic warning device which gave an audible alarm
when the equipment is put in reverse (back-up alarm).
The abatement time for such violation (Number 3113191),
dated 10-31-88, had expired. The dozer was working in
pit 020-0 (campground job).
Petitioner's Testimony and Evidence
MSHA Surface Mine Inspector Ronald V. Marrara, confirmed
that he has inspected the respondent's mine since January, 1982,
and his last regular inspection was in December, 1989. He confirmed that he issued the berm citation after finding "clear and
obvious" major deterioration on the elevated haulage road in and
out of the pit work area. There were three road areas where the
berm "had weathered to almost nothing," and as he approached the
final grade up the hill "there was no berm at all on the elevated
roadway" (Tr. 18). Mr. Marrara identified exhibit 1-B as a
diagram of the haulage road and pit area in question, and he
stated that there were no berms at all on the left side of the
roadway going to the pit for a distance of approximately
500 feet.
The three additional areas where the berm had deteriorated covered distances of approximately 8 to 12 feet, and the
entire berm along the roadway was "weathered and could have used
an upgrading" (Tr. 19).
Mr. Marrara stated that the slopes at the three areas which
were cited were "around a grade of a hundred percent, about a
forty-five degree angle," and at the road elevation where there
was no berm "it varied from probably forty to fifty percent
grade, which would have been about twenty-two degrees to about

1310

twenty-six or twenty-seven degrees." He believed that the cited
conditions presented a reasonable likelihood of injury, because
of the severe slopes, rocks and trees, and he believed that if a
truck went off the roadway, there was a danger that it would roll
over. He was aware of a number of accidents at other mine locations where injuries have occurred when trucks ran off the road
(Tr. 21-2 2 ) •
Mr. Marrara stated that he made a finding of "high negligence" because he had conducted a prior inspection of the same
haulage road in May, 1988. Although the berms at the three cited
locations were adequate at that time, work was in progress at the
other 500 foot cited area, and he discussed the berm requirements
with Mr. Pretzel. He also had cited Mr. Pretzel for berm violations in the past (Tr. 23). Mr. Marrara stated that the three
cited locations had weathered down during the intervening period
between May and October, 1988, and he saw no evidence that any
berm had ever been provided at the cited 500 foot area. He
stated that he spoke with Willard Wolf, the certified dozer man
in charge of the site, and that Mr. Wolf "was hesitant to give me
information that would indicate a berm had ever been placed
there" (Tr. 24) •
Mr. Marrara confirmed that he fixed the abatement time for
the violation for Wednesday, November 2, 1988, 2 days after the
citation was issued, and that he discussed it with Mr. Wolf.
Mr. Marrara believed that abatement could have been achieved
within 4 to 6 hours, but since he knew that any work would need
the approval of Mr. Pretzel, he allowed additional time. He
explained that abatement could have been achieved by providing
guardrails or mounds of materials capable of restraining a
vehicle. Mr. Wolf advised him that an operational dozer was
available, and Mr. Marrara determined that an operational grader
was available, and that earth and dirt materials were available
at different sections on the roadway (Tr. 26).
Mr. Marrara stated that when he returned to the site on
November 2, 1988, he observed that no effort had been made to
abate the violation. Mr. Wolf was working in the pit area operating a dozer, and a contract driller had two men drilling in the
pit preparing for a shot. These men had to traverse the roadway
to reach the pit area. Mr. Wolf told him that he had been
instructed by Mr. Pretzel to continue with the operation of the
pit (Tr. 27).
Mr. Marrara stated that he spoke with Mr. Pretzel after the
violation was abated, and informed him that his failure to take
any action to abate the violation was very serious. Mr. Pretzel
informed him that the endloader bucket was in disrepair and that
he wanted to use it to repair the berm. Mr. Pretzel also
informed him that he was only one capable of operating the grader

1311

which was at the site, but that he was hesitant to do the work
because he had a job at another site "making money" (Tr. 28).
Mr. Marrara confirmed that Mrs. Pretzel called his office on
November 1, 1988, and left a message for him to call her.
He had
already left his off ice and was unaware of the message until the
end of the day on November 2. He confirmed that he provided his
home phone number to Mr. Pretzel, and that Mr. Pretzel has called
him at home in the past (Tr. 29). He assumed that Mrs. Pretzel
worked for the respondent and that she wanted to discuss the
situation. He did discuss the matter with her at the work site
after he had issued the order (Tr. 31).
Mr. Marrara confirmed that even if Mrs. Pretzel had spoken
with him, he would not have granted an extension for the abatement because he did not believe it would have been warranted.
If
the site were not in operation, or if he observed work taking
place to abate the violation, he would have extended the abatement time. He would also have considered extending the time if
there had been some misunderstanding, or Mr. Wolf had shutdown
and called Mr. Pretzel. However, in this case, the respondent
simply continued to work and there appeared to be no effort made
to abate the cited conditions (Tr. 32).

.

~

Mr. Marrara stated that he spoke with Mrs. Pretzel after the
order was issued, and she informed him that she had called him to
inform him that the berm violation was not abated because of some
problems with reclamation, but she did not elaborate further.
With regard to the unavailability of the endloader, Mr. Marrara
did not believe it was necessary because the dozer and grader
were more than adequate to build a berm, and he was told the
endloader would be out of service for a week or longer (Tr. 34).
Mr. Marrara stated that Mr. Wolf was in charge of the site in the
absence of Mr. Pretzel, and that when he discussed the abatement
time with him, Mr. Wolf would make no commitment as to when he
believed the violations would be abated because he needed
Mr. Pretzel's approval (Tr. 35-36).
Mr. Marrara stated that the entire haulage road is approximately three-quarters 'Of a mile from the county road to the pit,
and less than half of it is elevated.
Little effort is needed to
determine where to construct berms because they were provided
previously and he specifically showed Mr. Wolf the road areas
that required berms. Mr. Marrara confirmed that the violation
was abated within a day, and that it took several hours.
Mr. Marrara confirmed that he based his "unwarrantable failure"
finding on the fact that he had discussed the necessity of berms
with Mr. Pretzel during his prior May inspection, and that both
Mr. Pretzel and Mr. Wolf knew that berms were required (Tr. 39).
It was obvious that the three cited locations were in need of
berms, and he specifically discussed the need for berms at the
"top of the hill" with Mr. Pretzel in the past (Tr. 40).

1312

On cross-examination, Mr. Marrara stated.that an "adequate
berm" pursuant to the standard is a "mound of material capable of
restraining a vehicle" (Tr. 43). He confirmed that because of
the weather conditions the road will develop ruts and become
marginally eroded and will create the appearance of berms, but he
denied that these were the conditions of the roadway at the time
the violation was issued (Tr. 45). He explained the methods used
to create berms and he conceded that the use of an endloader is
the fastest method for constructing a berm (Tr. 48). He believed
that there were adequate and available materials and equipment to
construct the berms, particularly at the 500 foot location at the
top of the hill. The roadway was approximately 20 to 30 feet
wide, but the width varied (Tr. 49-50).
Mr. Marrara confirmed that a blasting crew and trucks used
the roadway the day, after the inspection and that eventually,
coal trucks would have been using it. The roadway was posted
·with speed limit signs and it had established truck passing
locations (Tr. 53). He confirmed that he did not measure the
berms which had "weathered," and he estimated that they were
"less than six inches high." He confirmed that the berms in
these areas were adequate in May, and that they simply" weathered
down to the point where they were inadequate" at the time of the
inspection, and that it was a matter of maintenance. He also
confirmed that he still uses the "axle height" standard for
berms, and that a coal truck wheel height is about 32 inches, and
an axle height berm would be one 16 inches or more in height (Tr.
55).
It was clear to him that this standard was not met in this
case (Tr. 56).
With regard to the back-up alarm violation, the inspector
confirmed that while inspecting the cited dozer he asked the
operator to operate it in reverse. Although the alarm sounded,
the inspector felt that "the procedure he used was not quite
smooth" (Tr. 57). The inspector then got into the operator's cab
·with the driver and when the machine was placed in reverse, the
backup alarm did not sound. The inspector discovered that the
operator had to manually engage a toggle switch to sound the
alarm. The dozer operator and the person in charge of the work
.site admitted to the inspector that Mr. Pretzel instructed them
to install the toggle switch on the dozer.
They further
explained that the toggle switch cost $2, and that a proper
switch cost $27 to $28. The inspector confirmed that the toggle
switch was not standard equipment for the dozer (Tr. 58-59).
The inspector explained the basis for his ''significant and
substantial" violation finding, and he stated that the dozer was
operating in the pit area in and around equipment ~nd men, and
that the equipment operators would have occasion to leave their
vehicles and would be exposed to a hazard. Although the dozer
was not operating near the auger crews, there would be occasions

1313

when it would be operated near them.
In addition, coal truck
drivers would be exposed to a hazard while they were in the pit
where the dozer was working, and they would often be out of their
vehicles on foot.
He believed that lost time injuries such as
broken bones or lacerations would likely occur, and that fatalities have occurred in his district when a backup alarm was not
used. He confirmed that the dozer operator does not have a clear
view to the rear of the machine, and that one person would be
exposed to a hazard (Tr. 60-64).
The inspector confirmed that he made a negligence finding of
"moderate" because he was unable to speak directly with
Mr. Pretzel about ·the violation. He stated that he should have
made a finding of "high" negligence because Mr. Pretzel deliberately altered the equipment by installing the toggle switch. The
inspector believed that Mr. Pretzel should have known that the
switch was not lawful because he had discussed it with him on
numerous occasions and told him that the backup alarm must be
automatic. The inspector could not recall specifically discussing a toggle switch, and he indicated that he had cited the
respondent for previous backup alarm violations, but had never
cited him for using a t6ggle switch (Tr. 65-66).
The inspector believed that abatement could have been
achieved in 30 minutes or an hour by simply replacing the switch
with a pair of pliers, a screwdriver, and wrenches, and that
these tools are available at all strip jobs. When he returned
after issuing the citat·ion, abatement had not been achieved and
the dozer was working in the pit area in and around the endloader
and coal trucks which were being loaded, and the backup alarm was
not sounding while the dozer was·backi~g up. However, when the
·
operator saw him, he began using it. The person in charge· and
the dozer operator informed him that they had the new switch with
them but were given no tools to install it, and that Mr. Pretzel
had instructed them to continue working. Since the abatement
time passed, ahd the condition had not been corrected, the
inspector issued the order (Tr. 69).
On cross-examination, the inspector confirmed that when he
issued the citation,· the dozer and endloader were working in
close proximity of each other, and at different times were within
a matter of feet apart while working together to prepare for coal
loading the next day (Tr. 70). The auger crew was some distance
away and were not exposed to any hazard.· However, he has known
people to stop and talk while on the ground in the proximity of a
working dozer, but not at this operation (Tr. 73).
The inspector explained the operation of the toggle switch,
and he confirmed that when it was switched to the "on" position,
the backup alarm would sound at all times, regardless of whether
the dozer was operating backward or forward.
The inspector
believed that the dozer·operator was being deceitful by turning

1314

the switch on when he reversed the machirte, and that he did this
to make him believe that the alarm was automatic, when in fact it
was not (Tr. 77-79). The inspector confirmed that in order to
comply with the standard, the switch must be automatic so that
the backup alarm sounds when the machine is put in reverse without the operator engaging the toggle switch (Tr. 80-83).
The inspector confirmed that the existence of the toggle
switch per se was not a violation, and that he issued the violation because the backup alarm was not automatic and the switch
was installed in lieu of the automatic alarm. However, the
toggle switch was the only control mechanism for the alarm, and
since it was not operating automatically, it was improper (Tr.
85-89).
Respondent's Testimony and Evidence
David A. Pretzel, respondent's owner and operator, confirmed
that he strips coal and does excavating work. He stated that he
was not at the site when the berm citation was issued and did not
discuss it with Inspector Marrara. He confirmed that he has
constructed many berms and that a safe berm "is a judgment call"
when it is constructed. In his opinion, the cited berms were
"good or better than they were on the previous inspection." He
stated that he graded the roadway and that there have always been
berms on the roadway. The cited hill location was graded and
backfilled, and after putting topsoil on it, it raised the outside edge of the roadway 18 inches and "it can still be seen just
the way it was then" (Tr. 89-91).
With regard to the backup alarm citation, Mr. Pretzel conceded that the toggle switch was installed on the cited dozer.
He explained that it was installed because he also uses the dozer
off mine property doing work for the general public and they do
not want to hear the horn sounding. He stated that the toggle
switch was installed on the machine in 1982, but he could not
recall whether that particular dozer had been cited during prior
MSHA inspections (Tr. 92).
On cross-examination, Mr. Pretzel stated that he could not
recall speaking with the inspector about the berm conditions. He
believed that the roadway had been graded "within a month or
less" prior to the inspection, and that the berms on the roadway
have never been less than 2 feet.
He confirmed that the citations were given to his wife, that he did not go to the site to
view the cited conditions, and that the roadway was partially
fixed when he saw it. He did not discuss the cited berm conditions with Mr. Wolf and could not determine where the berms were
constructed because the entire roadway had been regraded (Tr.
94-95) .

1315

Mr. Pretzel stated that he asked his wife to call MSHA, and
he expected to obtain an extension to abate the cited conditions.
He confirmeq that he had spoken with the inspector in the past
but did not attempt to reach him at home because his wife called
his office and left a message for him (Tr~ 96-97).
Mr. Pretzel stated that the toggle switch shuts off a "working" automatic alarm which he installed on the dozer. He
believed that it was working on the day the citation issued. He
confirmed that his wife took a new automatic alarm to the job
site, but he could not recall whether it was installed (Tr. 98).
He did not speak with Mr. Dean, the person in charge of the work
site, because ":i:ny wife gave him orders what to do" (Tr. 99).
In response to further questions, Mr. Pretzel stated that he
did not know whether the new automatic alarm was ever installed
on the cited dozer. With regard to the berm conditions, he
confirmed that he was not present when the citation was issued,
but that a week earlier the berms were in place on the roadway
and it did not storm or rain before the inspection (Tr. 101-104).
He did not know if the alarm would stay on all the time when the
toggle switch was engaged, and while it was possible that there
was a short in the wire, he was not present when the inspector
issued the violation (Tr. 105).
Charlene D. Pretzel, confirmed that she keeps the books for
her husband's company and helps run the business. She stated
that the citations were given to her by the men in charge of the
work sites. She stated that she made three telephone calls to
the inspector's office in order to obtain an extension for abating the berm citation because the respondent wanted to use the
highlift to construct the berm. She confirmed that her husband
would have returned to the job site within a week or two and that
the repairs to the highlift bucket would have taken at least a
week (Tr. 109-111).
With regard to the backup alarm violation, Mrs. Pretzel
stated that the morning after receiving the citation, a new
switch was purchased, and she took it to the job site and told
the dozer operator to install it. She believed that the dozer
operator should have been able to install the new switch and she
told him "if you can't put it on, park it'' (Tr. 113).
On cross-examination, Mrs. Pretzel stated that if the dozer
operator were unable to repair the switch, he would have gone
home and would not have been paid unless he remained at the site
and worked (Tr. 114). She confirmed that the dozer operator told
her that the "wrong kind of switch" was on the dozer, and her
husband told her what kind of new switch to purchase (Tr. 118).

1316

Mrs. Pretzel had no knowledge of the inspector speaking with
her husband in the past with regard to the berms, and she confirmed that she has never discussed the matter with the inspector
because she ·is usually "in and out of the job" (Tr. 118).
Willard Wolf, testified that he was employed by the respondent when the berm violation was issued. He stated that he has
26 years of surface mining experience, and in his opinion the
berms on the haulage road in question "were good berms, good
enough at least" on the day of the inspection (Tr. 121).
On cross-examination, Mr. Wolf stated that he has worked for
the respondent for 3 years and that the mine is a non-union
operation.
In response to further questions, Mr. Wolf stated
that the inspector came back to the site the day after issuing
the violation and told him that if he did not fix the berms he
would shut the site down. Mr. Wolf confirmed that the inspector
"did close us down from working" but that he was permitted to
work on the road and constructed the berms that same day. When
asked why he not installed them earlier, he responded "I wasn't
told to.
I mean, there was berms there." He denied that he told
the inspector that he made no effort to repair the berms (Tr.
123) .
The inspector was recalled by the Court, and he confirmed
that while he had no reason to doubt that Mrs. Pretzel made the
telephone calls to his office, even if she had connected with
him, it would have made no difference since he believed the
respondent had an obligation to take care of the berms. He would
not have extended the abatement time unless the respondent had
stopped work, but once the orders were issued, it made no difference whether the work was shutdown. He confirmed that he
informed Mrs. Pretzel that pursuant to the Act there was a
"possible potential" for a fine of $1,000 a day for each of the
violations (Tr. 127).
The inspector confirmed that his inspection notes reflect
that he issued the prior berm citations to the respondent in
August, 1987 and August, 1985, and that he has discussed the
berms with Mr. Pretzel on numerous occasions. He further confirmed that he has conducted 15 regular inspections at the
respondent's site and that "not one regular inspection goes by
that I don't mention berms one way or another to almost all
operators that I inspect" (Tr. 128). He specifically recalled
speaking to Mr. Pretzel in May, 1988 about berms at the cited
locations (Tr. 128).
Petitioner's Arguments
In response to my request, the petitioner submitted a posthearing argument in support of its position that a section 104(b)
withdrawal order may be issued for failure by the respondent to

1317

timely abate a violation cited in a section 104(d) (1) citation.
After review of the arguments presented, I agree with the petitioner's position and I conclude and find that the order was
procedurally·correct.
With regard to the merits of the contested section 104(d) (1)
citation regarding the cited berm conditions, the petitioner
argued that the evidence presented supports a finding that the
berms cited by the inspector at the three locations noted in the
citation were "weathered down" and were inadequate. With regard
to the cited 500 feet area of the roadway, the petitioner asserts
that the evidence establishes that the area was not bermed and
that no berms were ever constructed in that area. The petitioner
stated that the respondent's testimony that the roadway had been
graded and berms were constructed a week prior to the inspection
is self-serving. The petitioner points out that Mr. Pretzel's
testimony that he wanted to use an endloader to construct the
berms and that the endloader was unavailable to timely construct
the berms to abate the violation is contradictory because he
testified that he used the scraper to construct the berms a week
prior to the inspection (Tr. 137-138).
With regard to Mr. Wolf's testimony that he believed the
berms adequate, the petitioner argued that Mr. Wolf's recollection was unclear and that he advanced no support for his conclusion that the berms were adequate.
Petitioner concludes that
the inspector's credible testimony concerning his observations of
the condition of the weathered down berms at the three cited
roadway locations, and the lack of any berm along 500 feet of the
roadway, should be credited over the testimony of Mr. Wolf and
that it clearly establishes a violation.
With regard to the inspector's "S&S" finding, the petitioner
asserted that the existence of the slopes along the unprotected
roadway establishes that there was a reasonable likelihood of an
injury and that the respondent has not seriously challenged the
inspector's reasonable belief that if a truck were out of control
and left the roadway it could roll over and cause at least moderately severe injuries, and under certain circumstances, could
reasonably result in serious or fatal injuries to the driver (Tr.
138) .
With regard to the respondent's negligence for the violation, and the inspector's unwarrantable failure finding, the
petitioner argued that the evidence supports a finding of high
negligence and aggravated conduct because the inspector had
previously discussed the need for berms along the cited roadway
with Mr. Pretzel and advised him as to the need for maintaining
and repairing the berms. The petitioner asserted that it was not
unreasonable for the inspector to believe that the respondent
would heed his advice and take care of the berms in a timely
manner (Tr. 139).

1318

The petitioner concedes ·that the respondent· made an attempt
to contact the inspector after the citation was issued by calling
his office and.leaving a message. However, the petitioner takes
the position that notwithstanding these telephone calls, the
respondent had an obligation to timely correct and abate the
cited conditions and could have contacted the inspector at his
home, as it had done on prior occasions, if it had problems in
timely abating the conditions. The petitioner concluded that the
telephone messages left at the inspector's office while he was
absent on other inspectors were "belated and halfhearted" and do
not meet the standard of making reasonable efforts to abate the
cited berm conditions. The petitioner believed that the required
abatement was a "fairly simply matter" and that the respondent
has not established that it had insufficient time to comply and
timely abate the conditions (Tr . .140).
With regard to the backup alarm violation, the p.etitioner
asserts that the evidence and testimony establishes that the
cited equipment did not have a working automatic backup alarm and
was simply equipped with an alarm operated by a tog.gle switch
which was manually activated to sound the alarm, and that the
backup ·alarm would only sound if. the toggle switch were manually
turned on. The petitioner pointed out that the cited machine was
not in fact equipped with an automatic alarm which would automatically sound when the machine operated in reverse and that the
cited standard required the installation and use of an automatic
alarm. The petitioner.concludeq that assuming an automatic alarm
was installed on the machine, the evidence clearly establishes
that it was not working and was not activated automatically when
the machine was operated in reverse (~r. 140-141). The petitioner pointed out that the toggle switch was being used in
substitution for the automatic alarm switch and that this was
contrary to the requirements of the cited standard (Tr. 142).
With regard to the respondent's negligence, the petitioner
argued that the violation was the result of at least moderate
negligence by the respondent (Tr. 143). With regard to the
abatement, the petitioner argued that Mrs. Pretzel did not give
anyone any clear order to repair the alarm, and that the operator
continued to work without the device (Tr. 150).
Respondent's Arguments
The respondent's representative ~equested that I take into
consideration the fact that the respondent is a small coal mine
operator with an annual mine production of 30,000 tons. Although
he agreed that the payment of the full amount of the proposed
civil penalty assessments will not put the respondent out of
business, he nonetheless argued that the magnitude of the proposed assessments will have a direct economic cost impact on the
respondent's mining operation (Tr. 153-154).

1319

The respondent's representative took the p9sition that the
cited berm conditions present an honest difference of opinion and
disagreement between the inspector and the respondent with
respect to the adequacy of the berms. He further asserted that
the use of the dozer by Mr. Wolf to construct the berms resulted
in "chopping up" the road and the further deterioration of the
berms, but that the violation was abated •. He pointed out that
the respondent telephoned the inspector in an attempt to explain
that he wished to use the endloader rather than the scrapper to
abate the violation and construct the berms and to request an
extension of the abatement time (Tr. 150-152).
With regard to the backup alarm violat~on, the respondent
asserted that Mrs. Pretzel, gave the equipment operator a new
swi.tch and instructed him to.fix it, and that if he could not do
so, she instructed him to shut the machine down (Tr. 153).
Findings and Conclusions
Fact of Violation - Citation No. 3113190, 30 C.F.R. § 77.1605Ck)
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.1605(k), which states that "berms
or guards shall be provided on the outer bank of elevated roadways." The term "berm" is defined in 30 ~.F.R. § 77.2(d) as "a
pile or mound of material capable of restraining a vehicle."
In Secretary of Labor v. United States Steel Corporation,
5 FMSHRC 3, 6, January 27, 1983, the Commission noted as follows:
"Restraining a vehicle" does not mean, as U.S.
Steel suggests, absolute prevention of overtravel. by
all vehicles under all circumstances. Given the heavy
weights and large sizes of many mine vehicles, that
would probably be an unattainable regulatory goal.
Rather, the standard requires reasonable control and
guidance of vehicular motion.
And, at 5 FMSHRC 5:
we hold th.at the adequacy of a berm or guard under
section 77.1605{k) is to be measured against the standard of whether the berm or guard is one a reasonably
prudent person familiar with all the facts, including
those peculiar to the mining industry, would have
constructed to provide the protection intended by the
standard.

*

*

*

*

1320

*

*

*

Under our interpretation of the standard, the
adequacy of an operator's berms or guards should thus
be evaluated in each case by reference to an objective
standard of a reasonably prudent person familiar with
the mining industry and in the context of the preventive purpose of the statute. When alleging a violation
of the standard, the Secretary is required to present
evidence showing that the operator's berms or guards do
not measure up to the kind that a reasonably prudent
person would provide under the circumstances. This
evidence could include accepted safety standards in the
field of road construction, considerations unique to
the mining industry, and the circumstances at the
operator's mine. Various construction factors could
bear upon what a reasonable person would do, such as
the condition of the roadway in issue, the roadway's
elevation and angle of incline, and the amount, type,
and size of traffic using the roadway.
Respondent's owner, David Pretzel, asserted that the cited
roadway locations have always had berms, and that he constructed
them by grading the roadway and using topsoil to raise the outside edges to 18 inches. He also contended that the berms have
never been less than 2 feet high, and that the roadway had been
graded within a month or so prior to the inspection. However,
the record reflects that Mr. Pretzel was not present when the
inspector viewed and cited the conditions, and Mr. Pretzel conceded that he did not visit the site to view the conditions when
they were cited by the inspector, and that he did not discuss the
conditions with the inspector.
Mr. Pretzel further testified that the citation was served
on his wife.
Although she testified in this case, she said
nothing about the conditions of the roadway, nor did she dispute
the findings of the inspector with respect to the berms.
Mrs. Pretzel testified that her husband was working at another
site, and that she instructed an employee "to take the dozer and
go out and try to get a bigger berm on the road" (Tr. 110).
Coupled with her attempts to contact the inspector for an extension to enable the respondent to use another piece of equipment
to construct the berms, I believe that it is reasonable to conclude that Mrs. Pretzel, who went to the mine shortly after the
inspector arrived, did not disagree with the inspector's observations of the berm conditions which he cited. As for the testimony of Mr. Wolf, he simply believed that "there was berms
there," and I find nothing in his testimony to rebut the testimony of the inspector.
I conclude and find that the testimony of the inspector who
personally observed the cited conditions during the course of his
inspection of the respondent's mining operation is credible and
probative, and it clearly supports his finding that no berm or

1321

guard was provided on the right outer bank of the elevated roadway at the location cited by the inspector.
I also conclude and
find that the inspector's testimony also establishes that the
berms at the other locations which he observed and were inadequate. The lack of berms at the one cited location, and the
inadequate berms at the other cited locations, constitute violations of section 77.1605(k). Under all of these circumstances,
the citation issued by the inspector IS AFFIRMED.
Fact of Violation - Citation No. 3113191, 30 C.F.R.

§

77.410

The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.410, for failing to equip a bulldozer with an automatic warning device (backup alarm) which gives
an audible alarm when the equipment is operated in reverse. The
cited standard provides as follows:
Mobile equipment, such as trucks, forklifts,
front-end loaders, tractors and graders, shall be
equipped with an adequate automatic warning device
which shall give an audible alarm when such equipment
is put in reverse.
(Emphasis added).
The inspector confirmed that the cited bulldozer was not
equipped with an automatic backup alarm which would automatically
sound when the machine was operated in reverse. After inspecting
the machine, he found that a toggle switch had been installed,
and that the machine operator was required to manually activate
the alarm by using the toggle switch. Mr. Pretzel did not dispute the existence of the toggle switch, and in fact admitted
that it was installed in 1982, so that the backup alarm could be
turned off when the machine was used on other jobs off mine
property.
The inspector testified that the toggle switch was "simply
an off and on switch for the backup alarm," and that the automatic alarm device which was apparently installed on the machine
was "wired out" and that the toggle switch was "wired direct so
all you had was an off and on switch" (Tr. 147). The inspector
confirmed that when the toggle switch was turned on the alarm
sounded, and when the switch was turned off, the alarm would not
sound. He stated that when the machine operator initially
sounded the alarm while backing up the machine he did so by
turning the toggle switch on. When the inspector inspected the
machine and switch, he found that the operator sounded the alarm
by activating the toggle switch manually and that this switch was
not an automatic device since the automatic device itself had
been "completely wired out of the system" (Tr. 148).
I conclude and find that the credible and probative testimony of the inspector clearly establishes that the cited machine
was not equipped with a functional automatic backup alarm or

1322

device that sounded automatically when the machine was operated
in reverse.
I further conclude and find that a violation of
section 77.410, has been established, and the citation issued by
the inspector IS AFFIRMED.
Significant and Substantial Violations
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:
In order to establish that a violation of a mandatory safety standard is significant and substantial
under National Gypsum the Secretary of Labor must
prove:
(1) the underlying violation of a mandatory
safety standard; (2) a discrete safety hazard--that is,
a measure of danger to safety-contributed to by the
violation; (3) a reasonable likelihood that the hazard
contributed to will result in an injury; and (4) a
reasonable likelihood that the injury in question will
be of a reasonably serious nature.
In United States Steel Mining Company, Inc., 7 FMSHRC 1125,
1129, 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 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

1323

involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Citation No. 3113190, 30 C.F.R. § 77.1605(k)
The inspector found that the berms at the three haulage road
locations which he described "had weathered down to nothing," and
that the location where the grade of the road went up a hill had
no berm at all. The inspector's unrebutted testimony establishes
that there was a reasonable likelihood of an injury because of
the severe unprotected road slopes, and the presence of trees and
rocks. He believed that if a truck went off the roadway, particularly at the location of the unprotected hill, there was a
danger that the truck would roll over once the truck left the
unprotected roadway, and he was aware of a number of accidents at
other mines under these same conditions. Under the circumstances, I conclude and find that the violation was significant
and substantial. I agree with the inspector's finding, and IT IS
AFFIRMED.
Citation No. 3113191, 30 C.F.R. § 77.410
The respondent has not rebutted the inspector's credible
testimony that the bulldozer which was not equipped with an
automatic audible backup alarm was operating in a pit area in and
around other equipment where other employees or a contractor
auger crew would have occasion to be present on foot. The
inspector also believed that the dozer operator did not have a
clear view to the rear of the machine, and that in the event he
were to operate the machine in reverse without the benefit of an
automatic backup alarm, an employee would likely be exposed to
lost time injuries such as lacerations or broken bones if he were
struck by the machine. While it is true that the machine sounded
an alarm when the inspector requested the operator to operate it
in reverse, the inspector found that the operator had manually
activated the alarm by using a toggle switch. In my view,
reliance on such a device, which required the operator to
manually activate the backup alarm, would not insure that the
alarm would sound when the machine was operating in reverse and
the operator could not see someone on foot to the rear of the
machine.
If he does not have the toggle switch turned on when he
backs up, he could very well run over someone, and that individual would have no assurance that the alarm will automatically
sound. Under the circumstances, I agree with the inspector's
significant and substantial finding, and IT IS AFFIRMED.
The Unwarrantable Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided

1324

under the 1969 Act, and it held in pertinent part as follows at
295.:...96:
.In· light of the foregoing, we hold that an inspec-·
tor should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines tha~ the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack
of due diligence, or because of indifference or lack of
reasonable care.
In several subsequent decisions concerning the interpretation and application of the term "unwarrantable failure," the
Commission further refined and explained this term, and concluded
that it means "aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of
the Act." Energy Mining Corporation, 9 FMSHRC 1997 (December
1987); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007· (December
1987); Secretary of Labor v. Rushton Mining Company, 10 FMSHRC
249 (March 1988). Referring to its prior holding in the Emery
Mining case, the Commission stated as follows in Youghiogheny &
Ohio, at 9 FMSHRC 2010:
We stated that.whereas negligence ,is conduct that
is "inadvertent," "thoughtless" or "inattentive,"
unwarrantable conduct is conduct that is described as
"not justifiable" or "inexcusable." Only by construing
unwarrantable failure by a mine operator as aggravated
conduct constituting more that ordinary negligence, do
unwarrantable failure sanctions assume their intended
distinct place in the 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 "unwarrantable failure."
"Unwarrantable" is
defined as "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 Dictionary 930-31 (5th ed. 1979). Conduct
that is not justifiable and inexcusable is the result
of more than inadvertence, thoughtlessness, or
inattention. * * *

1325.

Violation of 30 C.F.R. § 77.1605(k)
. The petitioner takes the position that the violation
resulted froin a high degree of negligence amounting to aggravated
conduct on the part of the respondent.
In· support of this conclusion, the petitioner relies on the inspector'~ testimony that
he based his high negligence finding on the fact that he· had
previously inspected the haulage road in May, 1988, anq discussed
the berm requirements with Mr. Pretzel, and that he previously
cited the respondent for violations of the berm standard.
The inspector's notes (exhibit P-3), reflect that he cited
the respondent for previous berm violations on August 17, 1987,
and August 12, 1985. However, copies of the citations were not
produced or offered for the record in this case, and the inspector presented no further details with respect to these previously
cited conditions. Although these prtor citations may support a
conclusion that the respondent had knowledge.of the berm requirements found in section 77.1605(k), in the absence of any further.
information or evidence that the prior citations concerned the
same berm locations cited in the instant case, I am not persuaded
that they support a finding of aggravated conduct and have given
them little.weight.
I take note of the fact that in this case,
the inspector confirmed that the haulage road in question was
posted with speed limit signs and that the respondent provided
designated truck passing locations along the. roadway. This
indicates to me that the respondent made an effort to insure safe
travel along the haulage road, notwithstanding the absence of
berms at one location, and the deteriorated berms at the other
cited locations.
With regard to the inspector's prior discussions with
Mr.· Pr~tzel concerning the maintenance of the berms, and notwithstanding Mr. Pretzel's lapse of memory that he ever discussed
the berm conditions with the inspector; I find the inspector's
testimony and corroborating notes, which reflect that he did
discuss the matter with Mr. Pretzel, to be credible. Although it
may be true that Mr. Pretzel may not have spoken to the inspector
immediately following the issuance of the contested citation in
this case, I am not convinced that he has never spoken to the
inspector in the past about the berms on the haulage road in
question, and I believe the inspector'~ testimony that he spoke
to Mr. Pretzel during his prior inspection in May, 1988.
The inspector confirmed that he based his unwarrantable
failure finding on the fact that he had discussed the necessity
for berms with Mr. Pretzel during his prior May, 1988, inspection, and that he specifically discussed the need for berms at
the cited locations. The inspector conceded that the question of
what constitutes an "adequate" berm is subject to interpretation,
and given the subjective definition of the term "berm" as found

.1326

in section 77.2(d), I am of the view that individual judgments
may differ from day-to-day as to the "adequacy" of a berm, particularly when they may be subjected to adverse weather
conditions.
I take particular note of the fact that in this case the
inspector confirmed that the berms at the three locations which
he cited during his inspection in this case were adequate when he
last observed them during his prior May, 1988, inspection, when
he discussed them with Mr. Pretzel, and that "work was being done
at the location where the one-tenth of a mile berm was" (Tr. 23).
The inspector confirmed that the berm had "weathered down" during
the intervening months between inspections, and I believe that
his principal concern was that the respondent was not maintaining
the berms after they were initially constructed. Although the
inspector was of the opinion that no berm had ever been constructed along the one-tenth of a mile elevated area which he
also cited during his October 31, 1988, inspection, his prior
testimony that work was taking place during his May inspection
"where the one-tenth of a mile berm was," suggests that a berm
may have at one time been constructed at that location.
Further,
the apparent failure by the inspector to issue a citation for the
lack of a berm at that location raises an inference that a berm
was either in place or was being worked on at the time of his May
inspection.
In these circumstances, I cannot conclude that the
prior discussions by the inspector with Mr. Pretzel establishes
any basis to support a conclusion of aggravated conduct with
respect to the violation in question in this case. To the contrary, I conclude and find that the violation resulted from the
respondent's failure to exercise reasonable care amounting to
"thoughtlessness" and "inattention" for not insuring that the
berms were constructed and maintained to the heights required by
the cited standard, rather than on "inexcusable" or aggravated
conduct. Under the circumstances, the inspector's unwarrantable
failure finding IS VACATED, and the section 104(d) (1) citation IS
MODIFIED to a section 104(a) citation, with significant and
substantial (S&S) findings.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business
The available evidence reflects that the respondent is a
small strip mine operator who also engaged in excavation work.
An MSHA Proposed Assessment Data Sheet, exhibit P-13, reflects
that the respondent's total 1988 annual mine production was
approximately 31,313 man-hours/tonnage.
I conclude and find that
the respondent is a small mine operator, and in the absence of
any evidence to the contrary, I further conclude and find that
the payment of the civil penalty assessments for the violations
which have been affirmed in this case will not adversely affect
the respondent's ability to continue in business.

1327

History of Prior Violations
The petitioner did not submit a computer print-out listing
the respondent's prior compliance record. However, the aforementioned exhibit P-13, reflects that the respondent was assessed
civil penalties for a total of nine (9) prior violations issued
during the years 1986 through 1988. I conclude and find that the
respondent has a good overall compliance record and I have taken
this into consideration in this case.
Gravity
In view of my significant and substantial (S&S) findings, I
conclude and find that Citation Nos. 3119190 and 3119191, were
serious violations.
Negligence
I conclude and find that Citation No. 3119190, concerning
the violation of the berm standard, 30 C.F.R. § 77.1605(k), was
the result of the respondent's failure to exercise reasonable
care, and that this amounts to ordinary negligence.
With regard to Citation No. 3113191, for the failure by the
respondent to provide an automatic backup alarm on the cited
bulldozer, the inspector made a finding of "moderate" negligence
because he was unable to speak directly with Mr. Pretzel about
the violation.
I take note of the fact that the inspector testified that "on reflection," he should have made a finding of "high
negligence" because Mr. Pretzel deliberately altered the alarm
which was provided on the equipment by installing a toggle switch
on the alarm. Although the inspector believed that Mr. Pretzel
should have known that the toggle switch was not lawful because
he had discussed the need for automatic backup alarms with him
"on numerous occasions" and had previously cited the respondent
for prior backup alarm violations, the inspector could not recall
specifically discussing toggle switches with Mr. Pretzel, and he
conceded that the prior citations did not involve the use of such
a device.
Copies of these prior citations were not produced or
introduced as part of the record in this case. Under the circumstances, I find no probative evidence to support any finding of
"high" negligence.
I conclude and find that the violation
resulted from the failure by the respondent to exercise reasonable care, and that this amounts to ordinary negligence.
Good Faith Compliance
The record reflects that the inspector issued two section
104(b) orders after finding that the respondent made no effort to
timely abate the violations, and there is no evidence that the
respondent filed any timely contests challenging the inspector's
issuance of the orders.

1328

Although the respondent made an effort to contact the
inspector with respect to the order issued for the berm violation, the fact remains that the respondent continued working
after the order was issued, and the inspector found no evidence
of any attempts by the respondent to repair the berms when he
next visited the mine. In my view, and notwithstanding the
respondent's efforts to contact the inspector at his office, the
respondent had a duty to at least begin work on the berms in
order to abate the cited conditions. Mr. Pretzel offered no
reasonable explanation as to why he did not attempt to contact
the inspector at his home as he had apparently done in the past.
Under the circumstances, I cannot conclude that the respondent
exhibited good faith in timely abating the berm conditions, and
its belated attempts to contact the inspector, rather than proceeding with the abatement work, is no excuse or defense to its
failure to take timely abatement action.
With regard to the backup alarm violation, Mrs. Pretzel
purchased a new automatic backup alarm, but she simply gave it to
the machine operator with instructions to install it or to park
the machine. Mrs. Pretzel believed that the operator was capable
of installing the new switch, and there is no credible evidence
that tools were not readily available to do the job. However,
the new switch was not installed, and when the inspector next
returned to the mine, he found the machine operating in the pit
area with the old switch which was cited still on it.
Mr. Pretzel could not recall whether the newly purchased
switch was ever installed on the cited dozer, and he did not
speak with the employee who was in charge of the work where the
machine was being used. As the mine operators, both Mr. and
Mrs. Pretzel had a duty to insure that the newly purchased automatic alarm was timely installed on the machine.
I find no
credible excuse for their failure to do so.
I conclude and find
that the respondent failed to exercise good faith in timely
abating the cited condition.
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 the
following civil penalties are reasonable and appropriate for the
two contested violations which have been affirmed, and for the
two violations which have been settled:

1329

Citation No.

Date

30 C.F.R. Section

Assessment

3113190
3113191
3100981
3100743

10/31/88
10/31/88
01/17/89
03/07/89

77.1605(k)
77.410
50.20
77.1110

$500
$400
$ 20
$ 20

h.L~
Administrative Law Judge

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Edward A. Moss, Route 12, Box 429, Morgantown, WV 26505
(Certified Mail)
David A. Pretzel, Owner, Pretzel Excavating, Route 4, Box 11-B,
Bruceton Mills, WV 26525 (Certified Mail)
/fb

1330

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

JUN 211990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEST 88-276
A.C. No. 05-00301-03652

v.

Dutch Creek No. 1 Mine

MID-CONTINENT RESOURCES,
INCORPORATED,
Respondent
DECISION
Appearances:

Before.:

Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner;
Edward Mulhall, Jr., Delaney & Balcomb, P.C.,
Glenwood Springs,· Colorado,
for Respond.ent.

Judge Cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor (Secretary) pursuant to Section
'i05(d) of the Federal Mine Safety and Health Act of.1977,
30 u.s.c. § 801 et seq., the "Act," charging Mid-Continent Resources, Inc. (Mid-Continent) with eight violations of mandatory standards and proposing civil penalties totaling $10,700
for the violations.
·
Mid-Continent filed a timely answer to the Secretary's
proposal for penalty denying the violations.
After notice to
the parties an evidentiary hearing on the merits was held in
Glenwood Springs, Colorado, on September 20 and 21, 19~9.
Both parties filed helpful post-hearing briefs and submitted the
matter for decision.
I

At the September 1989 hearing· the parties reached a settlement of Citation No. 03223646 which alleges a Section 104(a) violation of 30 C.F.R. § 75.301.
The parties agreed that Mid-Continent would pay as a civil penalty for this violation $1,020.
In
addition, prior to the hearing, the parties agreed to settle.six
of the eight citations/orders originally charged in this docket
by payment of 60 percent of the initial proposed penalty as
follows:

\

1331

Citation/Order No.

Proposed Penalty

Amended Proposed Penalty

03223176
03223542
03223598
03223641
03223644
03223647

$ 800.00
$1,300.00
$1,700.00
$1,300.00
$1,100.00
$1,300.00

$ 480.00
$ 780.00
$1,020.00
$ 780.00
$ 660.00
$ 780.00

The parties agreed that each citation/order accurately
reflects a violation of the standard as alleged therein, and that.
each penalty as amended is appropriate for the corresponding violation under section llOCi) of its Act.
At the hearing, the parties advised that all eight citations/orders have been abated. I have considered the representations and dodimentation submitted and I conclude that the proffered settlement disposition of the seven citations/orders referenced above is consistent with the ~riteria in§ llOCi) of the
Act.
I therefore assess the approved amended proposed penalties
specified above.
II
Section 104Cd)C2) Order No. 3223214
The remaining issues all involve Order No. 322314 which
charges a 104Cd)(2) violation of 30 C.F.R. § 75.1105.
Issues
The issues presented in these proceedings include the
following:
1. Whether the conditions cited constitute a violation of
the safety standard as alleged in the order and notice of civil
penalty.
2.
If a violation is found, whether it is of a "significant
and substantial" nature.
3.
If a violation is found, whether the contested 104(d)(2)
order resulted from an unwarrantable failure by Mid-Continent to ·
comply with the cited standard.
4. The appropriate civil penalty that should be assessed,
taking into consideration the statutory civil penalty criteria
found in section llOCi) of the Act.

1332

Stipulation
At the hearing the parties entered the following stipulations into the record:
1. Mid-Continent is subject to the jurisdiction of the Act
and the Commission;
2. The Dutch Creek No. 1 Mine is located near Redstone,
Colorado, and had for the year 1987 - 277,194 tons of coal
production.
3. At the time 104(d}(2} Order No. 3223214 was issued
Mid-Continent was validly within a so-called "d" series provided
for by section 104(d} of the Act.
4.
The condition underlying the subject orders have been
timely abated.
Factual Background
Federal Coal Mine Safety and Health Inspector Phillip R.
Gibson conducted an inspection of Mid-Continent's Dutch Creek
No. 1 Mine. At that time, the Dutch Creek No. 1 Mine was one of
two underground coal mines actively operated by Mid-Continent-the other was the Dutch Creek No. 2 Mine.
The Dutch Creek No. 1
Mine operated solely in the so-called Coal Basin "B" coal seam.
The Dutch Creek No. 2 Mine operated in the Coal Basin "M" seam,
the upper of the two coal seams mined by Mid-Continent.
, These two mines were subsequently conslidated by the interception, at depth, of the two mines by the so-called Rock Tunnels
Project/Coal Basin Adit.
During the inspection of the Dutch Creek No. 1 Mine,
Inspector Gibson issued 104Cd}(2} Order No. 3223214 alleging a
violation of mandatory safety standard 30 C.F.R. § 75.1105.
The narrative allegations of this order reads as follows:
The underground permanent pump for the airlock doors between No. 6 and No. 7 slopes in
in crosscut No. 64 was not housed in a fireproof structure or area.
The intake air was
coursed over the permanent pump installation
and not coursed directly into the return
(No. 7 slope}.

1333

On the order form [MSHA Form 7000-3, Mar-85 (Rev.)],
the inspector checked the Gravity (Form Item 10) as follows:
Injury or illness as "Reasonably Likely," Injury or illness
[which] could reasonably be expected as "Permanently Disabling,"
and the number of Persons Affected as "10." The inspector
checked that the Negligence (Form Item, 11) was "High."
30 C.F.R. § 75.1105, a verbatim restatement of section
311Cc) of the Act, 30 u.s.c. § 871, provides:
§ 75.1105.

Housing of underground transformer stations, battery-charging stations,
substations, compressor stations, shops, and
permanent pumps.
[STATUTORY PROVISIONS]
Underground transformer stations, batterycharging stations, substations, compressor
stations, shops, and permanent pumps shall be
housed in fireproof structures or areas. Air
currents used to ventilate structures or areas
enclosing electrical installations shall be
coursed directly into the return. Other underground structures installed in a coal mine as
the Secretary may prescribe shall be of fireproof construction.
[Emphasis added.]
The Situs of the Alleged Violation
In the Dutch Creek No. 1 Mine there are seven slope entries
which constitute the slopes section. These entries are driven
down-dip into the coal seam from its surface outcrop. The
entries are numbered, from left to right (as one faces the coal
face) Nos. 1 through 7. Slope Entries Nos. 1 and 7, the two
outside entries, are return aircourses through which ventilating
air is "sucked" by separate exhausting fans.
Entries Nos. 2
through 6 are intake aircourses. No. 4 Entry contained the
conveyor belts which had historically hauled mined-coal upward,
out of the mine via the portals at the surface outcrop of the
coal seam.
The airlock doors referred to in the order consist of two
heavy metal doors, each of which standing alone effectively
controls the passage of air through the entry in which they are
located between Nos. 6 and 7 slopes. These airlock doors are

1334

situated just outby the 103 longwall tailgate return entries at
the 64th-crosscut of the slope section. ~/
By raising and lowering the airlock doors mobile equipment
can travel through the airlock from the intake side to the return
side, or vice-versa, without short-circuiting the mine ventilation between intake and the return air courses. Thus, the doors
separate and prevent the interception of the airflow between
the number 6 intake air course and the number 7 return air
course.
The "permanent pump" identified in the subject order and
which definition frames the issue to be decided in this proceeding provides the hydraulic power which raises and lowers the
airlock doors. 2/
This hydraulic power unit or pump (sometimes hereinafter
referred to as the "unit") is located next to the airlock doors
in the number 6 slope which is an intake air course. The air
traveling in the number 6 air course passes over the unit and on
into the face area, longwall 103, which is the only active area
in the mine. The air is then returned to the exhaust fan, away
from the working face through the return air course, slope No. 7.
It is undisputed that the hydraulic power unit was ventilated
into the intake air and not into the return air of the number 7
slope.
When asked how the airlock doors operate, Inspector Gibson
testified:

l/
This is not a heavy traffic area; the heavy traffic is in
the headgate area.
2/
Mid-Continent asked for and received early on a continuing
objection to the reference by the Secretary's witnesses of the
hydraulic power unit as a "permanent pump." Therefore, this
repeated characterization does not per ~ carry any evidentiary
weight.

1335

A. These doors operate by hydraulic pressure supplied
from a hydraulic pump which was powered by an electric
motor. The hydraulic pump supplied hydraulic fluid to
a cylinder to which one end was attached a wire rope.
The other end of the wire rope was attached to the door
and a directional valve was engaged causing the cylinder
to raise or lower the door.
The hydraulic unit was located approximately 1000 to 1500
feet from the 103 longwall area, the only active working area of
the mine. Any air coursing over the unit would normally continue
down the six slope entry toward the working face.
The unit was fastened to a metal platform or skid that was
resting on the coal floor.
The unit had a 10 horse power electric motor, a hydraulic pump with a hydraulic reservoir.
The
entire unit was 30 inches wide and 36 inches long and appoximately 18 to 20 inches high.
The unit was stationary, not of the
type that is moved around the mine.
It contained a control box
with circuit breakers and various electrical components.
It is
undisputed that it was not a permissible pump. At the time of
inspection it was not housed nor enclosed in any structure.
The hydraulic unit in question is sold as a stock item by
the equipment manufacturer and is described in the manuf acturer' s sales brochure entitled "Belt Conveyor Systems for Mining
and Construction Industry" (Ex. R-4) as follows:
HYDRAULIC POWER UNITS
The Continental hydraulic take-up power unit provides
an accurate, reliable system for proper tensioning of
your belt system.
Improper tensions, whether high or
low, are severely damaging to the belt, as well as
other components such as pulleys, shafts and bearings.
A system of pressure sensing switches provides constant
monitoring of the hydraulic circuit. The low pressure
switch starts the hydraulic E!!!!!:e when a minimum safe
operating level is reached.
The high pressure switch
stops ~ action when the maximum level is attained.
This system provides an intermittent operating motor
and pump as opposed to a continuous system. This results in greatly reducing maintenance problems. All
units are factory set and tested based on the individual customer's tension requirements.

1336

All hydraulic unit components including the accumulator are integrally mounted on a common welded steel
skid type base. The unit is designed to be compatible
with either water-in-oil type fire resistant fluids or
standard hydraulic fluids. Units are available in either
440 volt, 550 volt A.C., or 250 volt D.C.
(Emphasis added).
Discussion
The prime issue before me is whether the power unit that
raises and lowers the airlock doors is a "permanent pump" within
the meaning of 30 C.F.R. § 75.1105. If the inspector's characterization of the power unit as a permanent pump is accurate and
proper, 30 C.F.R. § 75.1105 is applicable, and the basic allegations of the subject order must be deemed valid. The facts are
uncontroverted that the enclosure and ventilation requirements of
this regulation were not met. If, however, this unit is not a
"permanent pump" with the meaning of 30 C.F.R. § 75.1105, the
section is, of course, inapplicable and the subject order must
fail. 3/
Mid-Continent, on the other hand, asserted throughout the
hearing and in its briefs that this installation is not a "permanent pump" within the proper meaning of 30 C.F.R. § 75.1105,
but rather a "hydraulic power unit" which is not subject to
the enclosure and ventilation requirements of this regulation.
In support of its position, Mid-Continent presented expert testimony by a registered, professional engineer, a graduate of the
Colorado School of Mines, concerning the differences between the
operation of the airlock doors' power unit and what is normally
associated with a pump. Mid-Continent also introduced an equipment manufacturer's descriptive literature which described this
type of unit as a "hydraulic power unit."
Mid-Continent also presented evidence of what it asserts to
be the inconsistency between Inspector Gibson's interpretation
under 30 C.F.R. § 75.1105 and MSHA's demonstrated enforcement
policies over the past 10 years.
It was Mid-Continent's position
that such inconsistency further demonstrated the inapplicability
of 30 C.F.R. § 75.1105 to this airlock door's power unit.

3/
Mid-Continent challeges both the "significant and substantial" and "unwarrantable" characterizations of the alleged
violation. These issues are reached, however, only if a
violation of 30 C.F.R. § 75.1105 is first established.

1337

The Secretary presented the testimony of MSHA Inspectors
Gibson and Elswick with regard to the characterization of this
installation as a permanent pump.
Inspector Gibson testified as
follows:
Q.

Now, your order refers to this being a pump.
Tell us why you called it a pump.

A.

It's several components together.
It's looked
at as a pump. Since the hydraulic pump that
pumps the hydraulic fluid out of the hydraulic
reservoir is powered by the electric motor, the
entire composition is referred to as a pump.
[Emphasis added.]

'

The testimony of the electrical specialist, Inspector
Elswick, on this important issue was limited to the following:
Q.

The pump that you observed and the one Mr. Gibson
described, will you tell us please what--describe
that pump. What's its makeup? What does it include?

A.

Includes electrical control box, a 10 horsepower
electrical motor, hydraulic pump, and a hydraulic
tank reservoir mounted on a main frame.

Q.

Okay. Now, Mr. Gibson referred to this particular
item we're talking about as a pump.
Is this something you would ref er to as a pump?

A.

Common miner's language it's a belt take-up unit.

Q.

Okay.

A.

Yes, it is a pump.

Q.

Okay.

A.

Yes.

Q.

Mr. Elswick, as a mine inspector, do you recognize
a permanent pump when you see one?

A.

Yes, I do.

Q.

Okay.
Is there any doubt in your mind that this
was a permanent pump?

A.

No.

Is it a pump, though?

And, is it a permanent pump?

1338

Mid-Continent asserts that no foundation was laid nor evidence presented which would establish that either Gibson or
Elswick possessed any expertise in the area of hydraulics.
Their
opinions were basically ultimate conclusions.
It is Mid-Continent' s position that their unsupported opinion regarding the designation or characterization of the airlock doors' power unit is
not entitled any special or the controlling weight as urged by
the Secretary. Mid-Continent argues that the inspector's testimony merely begs the question absent any clear basis for their
opinion that this installation is subject to the requirements of
30 C.F.R. § 75.1105.
The designation of the airlock doors' power unit as a
"permanent pump" by Inspectors Gibson and Elswick is contradicted by the opinion of Mid-Continent witness David A. Powell,
an employee of Mid-Continent, who is a Registered, Professional
Engineer in the State of Colorado and a graduate of the Colorado
School of Mines. Mid-Continent asserts that contrary to Gibson
and Elswick, his education and training, as well as his background in heavy equipment maintenance, establish that Powell
possesses expertise in the field of hydraulic equipment and
hydraulic systems similar to the air lock doors' power unit in
issue.
While describing the functions of the various components of
this unit, Powell stated that the airlock door's power unit is,
in engineering parlance, normally described as a hydraulic motor.
In the literature provided by a manufacturer, this unit is
described as a "Hydraulic Power Unit" (Mid-Continent Exhibit
R-4).

Mid-Continent contends that, as evidenced by past enforcement, MSHA had not, prior to Gibson's issuance of the subject
order, viewed hydraulic power units on either the airlock doors
or the belt take-up units as permanent pumps for enclosure and
return air ventilation purposes under 30 C.F.R. § 75.1105:
The evidence is uncontroverted that hydraulic power units
identical to the one in issue have been used to power airlock
doors in the Dutch Creek No. 1 Mine since 1978, and that such
units are presently being used throughout the Dutch Creek No. 1
Mine in conveyor belt entries as belt-tensioner or belt take-up
units.
These belt take-up units are not housed in fireproof
enclosures nor is the intake ventilating air specially coursed
back into a return air course. This has been the practice since
1983 when Powell came to Mid-Continent Inspector Gibson recalls
this practice as far back as approximately 1977.

1339

Prior to the interception of Dutch Creek No. 1 Mine by the
Rock Tunnels Project, seven (7) of these hydraulic power units
were located in the 4-slope beltline entry; presently, three (3)
such units are operated in the Dutch Creek No. 1 Mine. None of
these beltline hydraulic power units have been, nor are they
currently required by MSHA to comply with the enclosure and
ventilation requirements for "permanent pumps" of 30 C.F.R.
§ 75.1105.
Finally, Mid-Continent contends that Inspector Gibson's
interpretation that this hydraulic power unit is a "permanent
pump" under 30 C.F.R. § 75.1105 is contrary to MSHA policy set
forth in MSHA Program Policy Letter No. P89-V-10, dated April 13,
1989, "Application of 30 C.F.R. § 75.1105."
(Mid-Continent
Exhibit R-3).
In clarifying the regulation section in question,
this Program Policy Letter states:
Permissible Pumps
Permissible pumps installed in a permanent manner,
with their associated permissible switchgear, are
designed, constructed, and tested to assure that such
equipment, when properly maintained, will not cause a
mine fire or explosion. Therefore, permissible pumps
and associated permissible switchgear are of "fireproof construction" and require no further fireproofing.
Permissible pumps and associated permissible switchgear
will be required to be ventilated directly into a return
aircourse.
Mid-Continent asserts that from this policy letter, it
becomes apparent that MSHA intended that the requirements of 30
C.F.R. § 75.1105 affecting permanent pumps applies only to "permissible pumps installed in a permanent manner."
As previously stated, the undisputed evidence clearly shows
that the power unit in question is not a permissible pump.
The Secretary's response to Mid-Continent argument that MSHA
has not enforced the requirements of the cited standard on other
hydraulic power units like the one in question is that this is an
argument without substance. The Secretary points out Cl) these
other pumps may be in violation but are not subject to a current
citation, and (2) the other pumps are located in the belt entry,
an area that is subject to a, separate section of the law, and as
is the case here, subject to a petition for modification.

1340

With respect to Mid-Continent's argument, that the unit
described in Mr. Gibson's citation is not a pump, the Secretary
points to the Bureau of Mines Dictionary of Mining, Mineral, and
Related Terms, U.S. Dept. of Interior, which defines pump as "a
machine used to impart flowing motion or to accelerate a fluid
stream (gas, water, pulp, slurry)."
David Powell, a mining
engineer for Mid-Continent agreed with this definition and on
questioning by Ms. Miller testified in part as follows:

Q.

(by Ms. Miller) ••. In general engineering terms, will
you tell us what a pump is.

A.

A pump would be a device that would impart acceleration
to a fluid stream.

Q• • . • is there any part of this take-up unit that
Mr. Gibson cited that does--have that function?
A.

I would say yes, yeah.

(Tr. 173).

Conclusion and Finding
Although the hydraulic unit in question has several components, there is no question that at least one significant and
essential component of the cited unit is a pump.
I find that the
unit is a permanent pump and subject to the requirement of the
cited regulation. This finding is supported by the testimony of
Inspectors Gibson and Elswich, as well as by Mr. Powell, and is
consistent with the definition of a pump as defined in the Bureau
of Mines Dictionary of Mining, Mineral, and Related Terms, U.S.
Dept. of Interior, 1968.
Significant and Substantial
It is the Secretary's position tha Mid-Continent's failure
to enclose and vent the airlock doors' power unit in issue in
conformance with 30 C.F.R. § 75.1105 constituted a significant
and substantial violation of the regulation.
The Secretary
asserts that the conditions underlying the subject order were
such that the electrical components of this airlock doors' power
unit could generate a fire which could spread to the working face
thereby causing injury to the 10 or more miners working in that
area.
Mid-Continent controverts these assertions.
It alleges that
various mitigating factors, which were not taken into consideration by Inspector Gibson during this overall gravity determination, surround the subject order and reduce the risk of a fire/

1341

smoke hazard being generated by this installation to a de minimus
level. ~/ Mid-Continent asserts that the low probability of this
hazard was admitted on cross-examination by Inspector Gibson.
Mid-Continent argues that the speculative nature of the hazards
the inspector relied upon is inconsistent with a significant and
substantial hazard as defined in Secretary of Labor, MSHA v.
Cement Division, National Gypsum Co., 3 FMSHRC 822, 825 (April
1981) •
Both the Secretary and Mid-Continent correctly cite
Cement Division, National Gypsum, Co~, 3 FMSHRC, supra, as
controlling law regarding the elements of a significant and
substantial violation. There the Commission described the nature
of such a violation as follows:
[F]or the reasons that follow, we hold that a violation
is of such a nature as could significantly and substantially contribute to the cause and effect of a mine safety
or health hazard if, based upon the particular facts surrounding that violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.
The position advanced by the Secretary--that a violation
is of significant and substantial nature, so long as it
poses more than a remote or speculative change that an
injury or illness will result, no matter how slight that
injury or illness--would result in almost all violations
being categorized as signifcant and substantial. Such an
interpretation would be inconsistent with the statutory
language and with the role we believe the significant and
substantial provisions are intended to play in the enforcement scheme.
[Emphasis added.].

4/
One important factor is that, should both airlock doors be
raised simultaneously, intake air entering the mine via 4-, 5-,
and 6-slope entries would short-circuit into 7-slope entry Ca
return aircourse) and be pulled out of the mine by the exhausting
ventilation fan.
It would bypass completely the single active
mining section in this mine, the 103 Longwall, and never reach
the section or the miners working in the section. This location
and ability to divert contaminated air (if, for example, containing smoke) directly into the 7-slope return aircourse without
exposing the mining section and the miners to the danger or any
smoke significantly reduces any potential danger and likelihood
of serious injury.

1342

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the
Commission further explained:
In order to establish that a violation of a mandatory
safety standard is significant and substantial under
National Gypsum the Secretary of Labor must prove:
Cl) the
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 likelihoo1 that the
injury in question will be of a reasonable serious nature.
Accord, Austin Power v. Secretary of Labor, 861 F.2d 99, 103
( 5 th Cir • 19 8 8 ) •
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,"
and that the likelihood of injury must be evaluated in terms of
continued normal mining operations. U.S. Steel Mining Co.,
6 FMSHRC 1573, 1574 (July 1984). See also Monterey Coal Co.,
7 FMSHRC 996, 1001-02 (July 1985). The operative time frame for
determining if a reasonable likelihood of injury exists includes
both the time that a violative condition existed prior to the
citation and the time that it would have existed if normal mining
operations had contiued. Halfway, Inc., 8 FMSHRC 8, 12 (January
1986); U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (August 1985).
The question of whether any particular violation is significant
and subtantial must be based on the particular facts surrounding
the violation, including the nature of the mine involved. Texasgulf, Inc., 10 FMRSHRC 498, 500-01 (April 1988); Youghiogheny &
Ohio Coal Company, 9 FMSHRC 1007, 2011-12 (December 1987).
Finally, the Commission has emphasized that it is the contribution of a violation to the cause and effect of a hazard that must
be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC
1834, 1836 (August 1984).
The Secretary states in her brief, "The inspectors noted
that the hazard--contamination of the escapeway in an emergency
situation--was reasonable [sic] likely to occur and that subsequent injuries could be anywhere from smoke inhalation to death.
(Secretary Brief, 7-8>.
Both Inspectors Elswick and Gibson testified that they are
aware of mine fires that have started from electrical equipment/
motors "similar" to that in place at the airlock doors' power

1343

'

,

unit.
If a fire were to start at this power unit, such fire
could ignite the surrounding coal ribs.
Because the airlock
doors' pow~r unit is located on intake air, a fire at this
location could contaminate the 103 longwall mining section.
As pointed out in Mid-Continent's brief, the Secretary's
analysis overlooks a number of relevant considerations. For
example, in her analysis, the Secretary fails to acknowledge that
the electrical components of the airlock doors' power unit were
equipped with safety features designed to protect against the
very malfunctions urged by the Secretary. Under the requirements
of Subpart I of 30 C.F.R., the electric motor on the airlock
doors' hydraulic power unit possessed ground fault, short-circuit, and motor overload protections~ it was subject to regular
weekly inspection. There was no evidence that these protection
systems were not operating properly.
Also overlooked is the fact that, because of the purpose it
served - that of providing access for mobile equipment to the
return of the 103 longwall, the airlock doors' power unit operated only intermittently, for short periods of time.
It ordinarily operates only in the presence of a mobile equipment operator,
which equipment, in accordance with the regulations, was required
to have at least one portable fire extinguisher on it.
Given these important factors, the possibility of a fire
occurring at this airlock doors' power unit appears to be just
that--a mere possibility. Neither inspector in 16 and 18 years
of underground coal mining experience had ever seen one of these
hydraulic units catch on fire.
When considered with other evidence presented by Mid-Continent, particularly the ability to short-circuit intake air directly into the 7-slope return at these airlock doors, see fn. 4,
ante, the possibility that such ignition could adversely affect
any miners appears even more remote. As established in part
through the testimony of Inspector Elswick, all of the component
parts of the airlock doors' power unit were of incombustible
---..
steel construction and the hydraulic fluid contained within it
was fire-resistant.
Furthermore, although the coal ribs were exposed, the record
establishes that Mid-Continent's coal, a medium volatile metallurgical coal, possesses properties which are not susceptible to
spontaneous combustion and which, as a general matter, make it
extremely difficult to ignite.

1344

Under these facts, the likelihood of a fire/smoke hazard
being created by this airlock doors' power unit is nothing more
than a possibility.
Inspector Gibson testified as follows:
Q.

And you say that a fire at this installation was reasonably likely to occur?

A.

Yes, sir.

Q.

To me, reasonably likely means that it's probable that
you're going to have a fire there.
Is that what it
means to you?

A.

I would probably include possible also.

Q.

Well, then, if it's possible, what does unlikely mean?

A.

That it's not possible.

Q.

Well, if unlikely means not possible, what does no likelihood mean?

A.

No--not possible.

Q.

Okay, then, when you say that the occurrence was
reasonably likely, what you're saying is that that
occurrence was possible?

A.

Yes.

Q.

You are not saying that the occurrence was probable?

A.

That's right.

Under the Cement Division, National Gypsum Co. requirements,
the conditions underlying a given violation must present more
than a "mere possibility" of injury to miners.
This requirement
has not been met in this case. When applying the standard determined by the Commission, judges must assume that the words used
must be equated to their normal, ordinary usage. United States
v. Raynor, 302 U.S. 540, 58 S.Ct. 353, 82 L.Ed. 413 (1938)1
United States v. Cooper Corp., 312 U.S. 600, 61 S.Ct. 742, 85
L.Ed. 1071 (1941).
The American Heritage Dictionary (Houghton Mifflin, 2d
College Ed. 1976) defines "likely" as "possessing or displaying
the qualities or characteristics that make something
probable • • • • "
[Emphasis supplied].

1345

. <.:_

-

--.--

Under the precedent cited above and based upon my independent review and evaluation of all the evidence, I find the evidence presented is insufficient to establish that Mid-Continent's
violation of the cited standard was significant and substantial
in nature.
I find the evidence presented fails to show a reasonable likelihood that the hazard contributed to will result in
an injury of a reasonable serious nature.
Unwarrantable Failure
In Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December
1987), and Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010
(December 1987), the Commission held that "unwarrantable failure
means aggravated conduct, constituting more than ordinary negligence, by a mine operator in relation to a violation of the Act."
This conclusion was based on the ordinary meaning of the term
"unwarrantable failure," the purpose of unwarrantable failure
sanctions in the Mine Act, the Act's legislative history, and
judicial precedent. The Commission stated that, while negligence
is conduct that is "inadvertent," "thoughtless," or "inattentive," conduct constituting an unwarrantable failure is conduct
that is "not justifiable" or "inexcusable." Emery, supra, 9
FMSHRC at 2001.
As recognized by the Commission in Emery, the chain of citations and withdrawal orders provided under section 104(d) of the
1977-Mine Act to address an operator's unwarrantable failure to
comply is one of the Secretary's most powerful instruments for
enforcing mine safety. The heightened negligence standard by the
Commission in Emery necessarily limits the application of section
104(d) by the Secretary to situations where an operator's aggravated conduct toward an unsafe condition justifies imposition of
severe sanctions.
The Secretary justifies the imposition of this stringent
enforcement measure on the basis that Mid-Continent was aware of
the violative condition of the airlock doors' power unit prior to
the issuance of the present order and did nothing to correct it.
In fact, the Secretary asserts that Mid-Continent had, at that
time, been "instructed" by MSHA to correct this violative condition.
Responsively, Mind-Continent argues that they had no reason
to believe that the airlock doors' power unit had been installed
improperly. Mid-Continent further argues that had MSHA, indeed,
given Mid-Continent any notice, that oral communication of such
notice was wholly inadequate.

1346

In her case in chief, the Secretary asserts Mid-Continent
had been informed by MSHA of its change in policy concerning the
applicability of 30 C.F.R. § 75.1105 to the hydraulic power unit
installations of the type in issue.
Such notification was
alleged to have been given orally to a former Mid-Continent employee by Inspector Elswick during a prior inspection of this
airlock doors' power unit.
According to his testimony, Inspector Elswick gave his oral
notification to Mid-Continent after reading the decision allegedly altering the definition of "permanent pump" under 30 C.F.R.
§ 75.1105 in Judge Fauver's decision in Southern Ohio Coal Co.,
Docket No. WEVA-86-R, slip op. at 6 (Decision, Aug. 14, 1986)
(Mid-Continent Exhibit R-10) (Tr. 110). According to Inspector
Elswick, he had received no other policy memoranda or communication which addressed this policy change.
Inspector Elswick's testimony in this regard is questionable.
According to Inspector Elswick, this notification was given MidContinent about six weeks prior to January 14, 1988. However, as
evidenced by the date stamp on the face of Mid-Continent Exhibit
R-10, the decision in Southern Ohio Coal Co., was not received by
the Denver MSHA District Office until February 14, 1988,--a date
post-dating the subject order by 27 days.
Further, this decision
was not disseminated down to the MSHA field off ice level by the
subdistrict manager until July 5, 1988.
Thus contradicted by the document on which he ostensibly
relied, Mid-Continent asserts that it is difficult to grant any
credence to Inspector Elswick's testimony concerning the justification for or the oral communicaton of this ostensible notice
which had the net effect of changing at least 10 years past practice and interpretation of 30 C.F.R. § 75.1105 with respect to
its applicability to the cited hydraulic power units.
Whether such notice was given by Inspector Elswick, however,
is not dispositive of the issue.
I agree with Mid-Continent's
argument that such informal, conversational notice is wholly
inadequate to justify sanctions under section 104(d) of the Act.
As established at trial, hydraulic power units identical to the
one in issue have been used to power airlock doors in the Dutch
Creek No. 1 Mine since 1978.
These units have also been and are
currently being used in the beltline entries of this mine for
belt take-up functions.
As Mid-Continent points out, identical
hydraulic power units on the 4-slope beltline, approximately 200
feet away from the unit in question, are not housed in fireproof
enclosures and vented to a return air course.
Cf. Deibold, Inc.,
v. Marshall, 585 F.2d 1327, 1335-1338 C6th Cir. 1978).

1347

Considering the record as a whole, I find that Mid-Continent
had a mistaken but good faith belief that the hydraulic power
unit in question was not a pump that was subject to the enclosure
and ventilation requirements of the cited regulation.
In making
this finding and conclusion, I have considered all the evidence
including that evidence that fairly detracts from an unwarrantable failure finding. Mid-Continent was negligent but its conduct does not amount to aggravated conduct exceeding ordinary
negligence. See Utah Power and Light Co. v. MSHA, Docket No.
WEST 89-161-R (May 24, 1990); Florence Mining Co., 11 FMSHRC 747,
752-54 (May 1980); Southern Ohio Coal Company, 10 FMSHRC 138,
142-143 (February 1988). See also Westmoreland Coal Co., 7
FMSHRC 1338, 13.43 (September 1985).
Civil Penalty
In accordance with the mandate of section llOCi) of the Act,
I have considered the statutory criteria in section llO(i) of the
Act. With respect to size, I have considered the parties' stipulation that the Dutch Creek No. 1 Mine produced 277,194 tons of
coal during the year prior to the issuance of the citation and
that overall, as stated in the joint document the parties filed
on August 16, 1989, Mid-Continent produced a total of 666,582
tons of coal during that year.
The proposed penalty would not
adversely affect Mid-Continent's ability to continue in business.
The computer printout, Exhibit P-1, shows Mid-Continent's
assessed violation within the two-year period prior to the
inspection.
The operator demonstrated good faith by the timely abatement of the violations cited in this docket.
The gravity of the
violation and the operator's negligence has been covered under
the discussion regarding the issue of whether the violation was
of a significant and substantial nature and whether the violation
was a result of Mid-Continent's aggravated conduct constituting
more than ordinary negligence.
Everything considered, I find $100 to be the appropriate
civil penalty for Mid-Continent's violation of 30 C.F.R.
§ 75.1105.

1348

ORDER
In view of the foregoing findings and conclusions, it is
ORDERED that Section 104(d)(2) Order No. 3223214 be MODIFIED to
delete the significant and substantial designation and the
inspector's determination that this violation resulted from
Mid-Continent's unwarrantable failure to comply with the mandatory safety standard 30 C.F.R. § 75.1105.
Accordingly, this enforcement document (Order No. 3223214)
is MODIFIED to change its nature from a Section 104Cd)(2) order
to a Section 104Ca) citation. As modified to a 104Ca) citation,
it is AFFIRMED.
The remaining seven citations/orders are also AFFIRMED and
Mid-Continent is ORDERED to pay the assessed civil penalty of
$5,620 in satisfaction of the eight violations charged in this
case. Payment is to be made to MSHA within thirty (30) days of
the date of this decision and order, and upon receipt or payment,
this matter is dismissed.

Au st F. Cetti
Administrative Law Judge

Distribution:
Margaret A. Miller, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Office Building, 1961 Stout Street,
Denver, CO 80294 (Certified Mail)
Edward Mulhall, Jr., Esq., DELANEY & BALCOMB, 818 Colorado
Avenue, P.O. Drawer 790, Glenwood Springs, CO 81602 (Certified
Mail)

/ek

1349

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

JUN 21 1990
ARMANDO M. RIVAS,
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. WEST 89-395-DM

PHELPS DODGE MORENCI, INC.,
Respondent

.

MD 89-36

DECISION
Appearances:

Lisa K. York, Esq., Phoenix, Arizona,
for Complainant,
Michael D. Moberly, Esq., RYLEY, CARLOCK & APPLEWHITE,
Phoenix, Arizona,
for Respondent.

Before:

Judge Lasher

This proceeding arose pursuant to the provisions of Section
105Cc)(3) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801, et ~ A preliminary hearing to resolve jurisdictional issues
was held in Phoenix, Arizona, on February 6, 1990. Thereafter, and
prior to formal hearing on the merits, the parties reached an amicable
resolution of this matter, based on a cash payment to Complainant. On
June 9, 1990, the parties filed a duly executed stipulation authorizing dismissal of this proceeding with prejudice.
Accordingly, the matter having been settled and the parties so
authorizing, this proceeding is dismissed with prejudice, with both
parties to bear their own costs and attorneys fees.

;i/:-~-'d.L ~/pf": ..£;..-~:·~()}~

Michael A. ~~her, Jr.
Administrative Law Judge

Distribution:
Lisa K. York, Esq., 2700 North Central Avenue, Suite 975, Phoenix, AZ
85004 (Certified Mail)
Armando M. Rivas, Route One, Box 436, Safford, AZ 88596
Mail)

(Certified

Michael D. Moberly, Esq., Nathan R. Niemuth, Esq., RYLEY, CARLOCK &
APPLEWHITE, 101 North First Avenue, Suite 2600, Phoenix, AZ 85003
CCertified Mail)
/ek

1350

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

JUN 2:11990oISCRIMINATION PROCEEDING
WAYNE L. IVEY,
Complainant
Docket No. WEST 90-67-DM
MD 89-117
v.
Elk Peak Mine

BLUE RIDGE MINING COMPANY,
Respondent

ORDER OF DISMISSAL
Before:

Judge Merlin

On December 11, 1989, you filed with this Commission a
complaint of discrimination under section 105(c) of the
Federal Mine Safety and Health Act 1977. On March 16, 1990,
a show cause order was issued directing you to provide information
regarding your complaint or show good reason for your failure
to do so. The show cause was mailed to you certified mail,
return receipt requested, and the file contains the receipt
card indicating you received the show cause order. You have
however, not responded and complied with the show cause
order.
Accordingly, this case is DISMISSED.

--""'"'-'""\. ) t\

\~
Paul Merlin
Chief Administrative Law Judge

Distribution:
Mr. Wayne L. Ivey, P.O. Box 3902, Butte, MT 59702 (Certified Mail)
Blue Ridge Mining Company, 56 East Mercury St., Butte, MT 59702
(Certified Mail)
/ss

1351

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

JUN 2 5 1990
BOBBY STROUTH AND 10 MINERS,
Complainants

v.

.

COMPENSATION PROCEEDING
Docket No. VA 90-13-C
Mine No. 1

CAVALIER MINING CORPORATION,
Respondent
ORDER OF DISMISSAL
Before:

Judge Melick

Complainants have requested approval to withdraw their
complaints in the captioned case. Under the cir umstances
herein, permission to withdraw is granted. 29
F.R. §
2700.11. This case is there ore dismissed.

Distribution:
Bobby G. Strouth, Route 2, Box 334, Pound, VA
(Certified Mail)

24279

Timothy Gresham, Esq., Penn Steuart, Eskridge & Jones, P.O.
Box 2288, Abingdon, VA 24210
CCertif ied Mail)
nt

1352

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

JUN 2 7 1990
CHARLES SCOTT HOWARD
Complainant

DISCRIMINATION PROCEEDING

v.

Docket No. KENT 90-98-D

HARLAN-CUMBERLAND COAL
COMPANY,
Respondent

BARB CD 89-25
C-2 Mine

ORDER OF DISMISSAL
The Parties' Agreed Motion to Dismiss filed June 20, 1990,
is GRANTED.
I find that the Settlement Agreement, General
Release and Covenant Not To Sue, fairly resolves of the issues
raised by the Complainant, and I approve the Settlement
Agreement, General Release and Covenant Not to Sue.
It is ORDERED that, pursuant to 29 C.F.R. § 270.11 and
2700.54, this case be DISMISSED with prejudice.
It is further
ORDERED that the Parties shall abide by all the terms of the
Settlement Agreement, General Release and Covenant Not to Sue.

A··t---

Avram Weisberger
Administrative Law Judge

Distribution:
Tony Oppegard, Esq., Appalachian Research & Defense Fund of
Kentucy, Inc., P. o. Box 360, Hazard, KY 41701 (Certified Mail)
James D. Cockrum, Esq., Charles E. Allen, III, Esq., Brown, Todd
& Heyburn, Harlan-Cumberland Coal Company, 1600 Citizens Plaza,
Louisville, KY 40202 (Certified Mail>
dcp

1353

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

22041

JUN 2 7 1990
JIM WALTER RESOURCES, INC.,
Contestant

CONTEST PROCEEDING
Docket No. SE 89-16-R
Citation No. 3012039; 10/25/88

v.

No. 3 Mine

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

Mine I.D. # 01-00758

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

CIVIL PENALTY PROCEEDING
Docket No. SE 89-42
A.C. No. 01-00758-03732

v.
No. 3 Mine
JIM WALTER RESOURCES, INC.,
Respondent
DECISION
Appearances:

Before:

William Lawson, Esq., Office of the Solicitor,
U.S. Department of Labor, Birmingham, Alabama
for the Secretary of Labor;
H. Thomas Wells, Jr., Esq., Maynard, Cooper,
Frierson, and Gale, P.C., Birmingham, Alabama
for Jim Walter Resources, Inc.

Judge Melick

These consolidated cases are before me under section
105(d) of the Federal Mine Safety and Health Act of 1977, 30
u.s.c. § 801 et seg., the "Act," to contest Citation No.
3012039 issued by the Secretary of Labor pursuant to Section
104(a) of the Act against Jim Walter Resources, Inc., (Jim
Walter) and for review of civil penalties proposed by the
Secretary for the violation alleged therein. More
particularly the underlying issue is whether Jim Walter's
proposed change in its Ventilation System, Methane and Dust
Control Plan (Ventilation Plan), which was rejected by the
Secretary would at all times guarantee no less than the same
measure of protection afforded the miners at the subject mine
by the existing provisions of the Ventilation Plan.
The citation at bar alleges a violation of the standard
at 30 c.F.R. § 75.316 and, as amended, charges as follows:

1354

The Jim Walter Resources No. 3 mine has implemented
and adopted the proposed change in the supplement
to the Ventilation System, Methane and Dust Control
Plan identified as 9-lV-52, which requested a
change in the air current of 25,000 cfm be
permitted prior to be [sic] construed as a major
air change. This request has been denied in
writing by the District Manager. On 10/25/88 JWR
Inc., was operating the No. 3 Mine without having
adopted a Ventilation Plan which had been approved
by the Secretary.
By letter dated September 29, 1988, Jim Walter had
requested a change in its existing approved Ventilation Plan.
That letter, directed to Carl Boone, the Acting District
Manager of Mine Safety and Health Administration District
No. 7, reads as follows:
Please substitute the attached page for page 9
of the current approved ventilation plan signed
September 15, 1988. The only difference between
the two pages is that the attached page specifies
25,000 cfm or greater air change on a section split
be considered a major change. The supplement will
be implemented upon approval.
More particularly Jim Walter sought to add the following
language to its Ventilation Plan:
"[a] ventilation change of
25,000 C.F.M. or greater of any section split will be
considered a major air change and the change will be made
according to 75.322. 11
Acting District Manager Boone rejected this request in
the following letter addressed to Mine Manager G.W. Coates:
The proposed supplement to the Ventilation
System and Methane and dust Control Plan dated
September 29, 1988, which seeks to make a change of
25,000 CFM be considered a major change, has been
reviewed and cannot be approved.
Currently any change less than 9,000 CFM can
be made. A change greater than 9,000 CFM would not
provide the same measure of protection to the
miners.
A subsequent request for the same change was again
rejected by Mr. Boone in the following letter to Coates:
Your request dated January 19, 1988, that the
amount of air considered to be a major ventilation
change at the above mine be increased to a maximum
of 25,000 cfm has been reviewed by the District

1355

ventilation staff. The National Coal Mine Health
and Safety Inspection Manual for Underground Coal
Mines states, in part, that any ventilation change
in which any split of air is increased or decreased
by an amount equal to or in excess of 9,000 cfm is
considered a major change. Historically, this
9,000 cfm limit has been established for about 17
years; therefore, this request is denied.
This Commission discussed the underlying legal authority
for the litigation of disputed ventilation plans in Secretary
v. Carbon County Coal Co., 7 FMSHRC 1367 (1985). It stated
in this regard as follows:
The requirement that the Secretary approve an
operator's mine ventilation plan does not mean that
an operator has no option but acquiesce to the
Secretary's desires regarding the contents of the
plan. Legitimate disagreements as to the proper
course of action are bound to occur.
In attempting
to resolve such differences, the Secretary and an
operator must negotiate in good faith and for a
reasonable period concerning a disputed provision.
Where such good faith negotiation has taken place,
and the operator and the Secretary remain at odds
over a plan, review of the dispute may be obtained
by the operator's refusal to adopt the disputed
provision, thus triggering litigation before the
Commission.
Penn Allegh Coal Co., 3 FMSHRC 2767,
2773 (December 1981). Carbon County proceeded
accordingly in this case. The company negotiated
in good faith and for a reasonable period
concerning the volume of air to be supplied the
auxiliary fans.
Carbon County's refusal to
acquiesce in the Secretary's demand that the plan
contain a free discharge capacity provision led to
this civil penalty proceeding.
It is not disputed in this case that Jim Walter
negotiated in good faith and for a reasonable period
concerning the disputed provision. While in this case it was
the refusal to approve Jim Walter's proposed change in the
plan that led to this contest and civil penalty proceeding
the underlying issue is analagous and review under the Carbon
County rationale is warranted. The Commission did not
designate in the Carbon County decision which party must bear
the burden of proof nor did it set forth the standard of
proof to be applied. The parties hereto have agreed however
that Jim Walter, as the moving party attempting to include
the disputed provision into its Ventilation Plan, has the
burden of proof. See 5 u.s.c. § 556 (d).
I have further
determined by analogy that the standard of proof in this
proceeding should be the same standard applicable in

1356

modification proceedings under Section 10l(c) of the Act.l/
Thus I find that Jim Walter bears the burden in this
proceeding of proving by a preponderance of the evidence that
its alternative method of achieving the result (purpose) of
the standard at 30 C.F.R. § 316 and of its Ventilation Plan
will at all times guarantee no less than the same measure of
protection afforded the miners at its mine by such standard
and its existing Plan.2/ By applying this standard to the
case at bar it is clear that Jim Walter has failed to sustain
its burden of proof.
Under current application of the Jim Walter Ventilation
Plan and within the framework of 30 C.F.R. § 75.322 any
ventilation change in which any split of air is to be
increased or decreased by an amount equal to or in excess of
9,000 cfm must be made only when the mine is idle and that
before mine power can be restored in all areas affected by
the ventilation changes an examination must be performed in
accordance with 30 C.F.R. § 75.303.
It is acknowledged that
during the course of mining operations occasions do arise in
which additional air is needed to ventilate methane and dust
from a working section. Under MSHA's current application of
the standard at 30 C.F.R. § 75.322 Jim Walter is permitted to
increase air by 9,000 cfm with miners underground and the
mine operating with electrical power.
In the event a greater
quantity of air is needed, ~IBHA requires that such changes be
made while the mine is idle with the miners outside. The
I/ Section lOl(c) of the Act reads in relevant part as
follows:
Upon petition by the operator or the representative
of miners the Secretary may modify the application
of any mandatory safety standard to a coal or other
mine if the Secretary determines that an
alternative method of achieving the result of such
standard exists which will at all times guarantee
no less than the same measure of protection
afforded the miners of such mine by such standard,
or that the application of such standard to such
mine will result in a diminution of safety to the
miners in such mine.***
2/ The Secretary argues that whatever decision is made by the
MsHA District Manager, whether to impose a new plan provision
over the operator's objection or whe~her to refuse to include
a provision the operator desires, is to be reviewed under an
"arbitrary and capricious" standard. The "arbitrary and
capricious" standard is however only applicable under the
Administrative Procedure Act to judicial review of final
administrative action following the administrative hearing.
See 5 u.s.c. § 706(2)(A).

1357

essence of Jim Walter's requested change in its Ventilation
Plan is that it be permitted to increase ventilation by as
much as 2_5, 0 00 cfm with miners remaining underground and the
mine operating.
In other words Jim Walter is requesting to
be allowed to make ventilation changes up to 25,000 cfm
without having to remove the miners or perform an examination
-of the affected areas in accordance with 30 C.F.R. § 75.303
-before restoring mine power and resi.nning production. Jim
Walter therefore has the burden of proving that making such
ventilation changes is at least as safe with miners
underground, without cutting power and without performing
examinations in accordance with 30 C.F.R. § 75.303.
In support of its position, Jim Walter cites computer
simulations and in-mine tests it performed purportedly
showing that altering the air flow by as much as 25,000 cfm
did not result in what its experts deemed to be significant
ventilation changes.
It is not disputed however that these
simulatious and tests cannot possibly address the multitude
of potential variables that can and do occur in such a
complex system as the Jim Walter No. 3 Mine. The results of
a 25,000 cfm air change cannot therefore be reliably
predicted. Based on the Secretary's credible evidence, the
consequences could be serious including an inundation of
excess methane in the working areas. Clearly the safer
practice is to make the requested ventilation changes while
the mine is idle and then to conduct an inspection before
allowing the miners to retur.n underground.
Indeed one of Jim
Walter's own experts, senior mine engineer Richard Pate1
essentially agreed in the following colloquy at hearing:

Q. Mr. Pate, when a change, a ventilation change is
made in the mine, let's just assume that a 25,000
change was made during this study, how can you be
assured of what the affects of that change are
going to be in other areas of that mine without
first going and checking and seeing on those
conditions?
A. There's no other way to know besides checking,
doing a check of the parts of the mine.

Q. So would it be safer from the miners' standpoint
for workers down there that when a change such as
25,000 is made to go and examine those areas to see
what the conditions are before permitting them in
the return?
A. It is a normal practice when any air change is
made for us to examine the areas to see what effect
it has had on the mines.

I,

Q. That would be.the safest route to go?
A. Yes.
(Tr. 36-37).
The opinion of the operator's expert is reinforced by
the Secretary's evidence in this case. Under the
circumstances Jim Walter has not sustained its burden of
proving that the proposed alternative procedures set forth in
its proposed modification to its Ventilation Plan would at
all times guarantee no less than the same measure of
protection afforded the miners at its mine by the application
of the regulatory standards and the existing Ventilation Plan.
The violation in the citation is according proven as charged.
Considering the absence of any hazard under the limited
circumstances of this case and that the purpose of the
issuance of the citation in this case was to have the
attempted modification to its Ventilation Plan reviewed by
the Commission, the proposed civil penalty of $20 is clearly
appropriate.
ORDER
Jim Walter Resources, Inc., is dire~ted to pay a civi~
penalty of ~20 within 30 day~~ c;>f the dat~\ of this decisiod}

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William Lawson, Esq., Office of the Solicitor1\u.s.
Department of Labor, 2015 Second Avenue, Nortfi:;~ Birmingham,
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FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

CONTEST PROCEEDING

GOLDEN OAK MINING, CO., L.P.,
Contestant

v.

Docket No. KENT 90-185-R
Citation No. 3370565;
4/12/90

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

Golden Oak No. 4 Mine
DECISION

Appearances:

Before:

Teresa Taylor, Esq., Cook Law Office, Whitesburg,
Kentucky, for Contestant (Golden Oak);
w. F. Taylor, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for the Secretary of Labor (Secretary).

Judge Broderick

STATEMENT OF THE CASE
Golden Oak filed a Notice of Contest on May 17, 1990,
challenging a section 104(a) citation issued by MSHA on April 12,
1990, alleging a violation of 30 C.F.R. § 75.1712-1. The citation
required abatement of the violation by May 14, 1990. Because
Golden Oak had been informed that a withdrawal order would be
issued for failure to abate, it sought an expedited hearing on
its notice of contest. After the case was assigned to me, MSHA
extended the abatement time for 30 days. Pursuant to notice
issued May 18, 1990, I called the case for hearing on June 12,
1990, in Hazard, Kentucky. Cecil Davis, Michael Keene, and John
Hendley testified on behalf of the Secretary. Willard Back,
Hiram Standifur, Jr., and Ross Keegan testified on behalf of
Golden Oak. At the conclusion of the testimony, both parties
argued their positions on the record.
I considered the record
and the contentions of the parties in issuing a bench decision in
which I modified the citation and affirmed it as modified. I
dismissed Golden Oak's contest. Pursuant to 29 C.F.R. § 2700.65,
I herewith reduce that oral decision to writing.
FINDINGS OF FACT
1.

Golden Oak Mining Co., L.P., is the owner and operator

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of an underground mine in Letcher County, Kentucky known as
Golden Oak No. 4 Mine.
2. Golden Oak began operating the subject mine in
April 1986 under the corporate name Golden Oak Mining Co., Inc.
The company's ownership and legal structure were changed in about
July 1989 to Golden Oak Mining Co., L.P.
3. The mine is about 3 to 3-1/2 miles deep and crosses a
number of abandoned mines as well as a sandstone fault area.
It
has two mining sections and operates one maintenance and two
production shifts.
4. On October 20, 1986, the MSHA District Manager, under 30
C.F.R. § 75.1712-4, granted Golden Oak, upon its written
application, a waiver of the requirements contained in 30 C.F.R.
§ 75.1712-1 for surface bathing facilities at the No. 4 Mine.
Approximately 23 miners were employed at the mine.
5. On May 31, 1988, the MSHA District Manager again issued
a waiver under § 75.1712-4 ·to Golden Oak for the No. 4 Mine.
Approximately 105 miners were employed at the mine.
6. In about July 1989, after the ownership of Golden Oak
and its company name and structure were changed, the mining
permits were transferred to the new company. The MSHA mine I.D.
number remained the same however.
7. On December 5, 1989, Golden Oak filed a request for
waiver of the requirements for surface bathing facilities and
clothing change rooms with the MSHA District Manager pursuant to
30 C.F.R. § 75.1712-5. It submitted a petition signed by all the
employees of the mine, 85 in number, stating that they did not
desire that bathing facilities be made available. The request,
on an MSHA form, indicated that the life of the mine is greater
than one year, that an adequate source of suitable water is not
available on mine property, and that centrally located bathing
facilities would not be practical. The reason given for this
last conclusion is that "employees prefer to bath at home at
present time."
8. Federal inspector Cecil Davis made an evaluation of the
request for waiver in January 1990. He determined that the mine
had an adequate water supply, that it had a trailer used as a
clothing change area, and that it had portable sanitary toilet
facilities.
He discussed mining projections with Golden Oak
management officials and concluded that the mine had a remaining
life of four years.
Inspector Davis recommended that the waiver
be denied.
9. In January 1990, Michael Keene was the Acting District
Manager in MSHA District 6. He reviewed Golden Oak's application

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and Inspector Davis' evaluation. On January 24, 1990, he denied
Golden Oak's request for an extension of the waiver. The letter
of denial ·stated that an investigation at the subject mine
disclosed that it was practical to develop a private water
supply, that an adequate supply of electricity existed, that
there was an adequate area to construct or provide portable
bathing facilities and that the life of the mine was
approximately four years.
10. On April 12, 1990, Inspector Davis, in the course of a
regular safety and health inspection of the subject mine, issued
a 104(a) citation for a violation of 30 C.F.R. § 75.1712-1
because bathing facilities, clothing change rooms and sanitary
facilities were not provided at the mine and a request for a
waiver of these requiremen~s was denied on January 26, 1990.
Abatement was required by May 14, 1990.
11. On May 7, 1990, Acting District Manager Keene met with
Willard Back, Golden Oak's Safety Director. Back informed Keene
that the life of the mine was approximately 2 years. He stated
that Golden Oak drilled a well on the mine property but only
obtained 5 gallons of water per minute. The mine was using water
from an abandoned mine. It was believed that the source of this
water was an underground stream. Nothing was brought up to Mr.
Keene which in his opinion was sufficient to cause him to change
his prior decision denying the waiver.
12. John Hendley, an industrial hygienist employed by MSHA,
estimated that the subject mine used at least 36,000 gallons of
water per day in its mining operation. Approximately 2700
gallons additionally per day would be needed for bathing
facilities for 85 miners.
13. A water sample taken from the subject mine on
May 31, 1990, showed that the water was not suitable for
drinking, but was suitable for bathing.
It could be made
suitable for drinking with a slight chlorination treatment.
14. On May 17, 1990, Golden Oak's Vice President wrote to
MSHA, asking for reconsideration of the waiver request. The
letter estimated the life of the mine at 2 years.
15. At the hearing, Golden Oak's Manager of Engineering,
Ross Keegan, estimated the mine life at a maximum of 16 months.
He explained that as of May 29, 1990, the estimated life was 2
years, but that recent adverse conditions had resulted in the
reduction to 16 months. He stated that although a small quantity
of water was taken from a well and an erratic source of water was
being used from an abandoned mine, Golden Oak still had to truck
in water on occasion to supply the mining equipment. Keene had
not been made aware of the fact that water was trucked in; in

1362

fact, Golden Oak's Safety Director was not aware of it until the
day before the hearing.
16. Keegan testified ·that it would take approximately.
9 months to get government approval for a bathing facility and
approximately 3 additional months to construct one. The
estimated nine month period included environmental studies, and
the approval of a sewage treatment facility. These allegations
were not made to Mr. Keene at the time the waiver was sought, nor
at the time reconsideration of the denial was requested.
17. On May 17, 1990, Inspector Davis extended the abatement
time to June 18, 1990. The extension was granted because Golden
Oak was looking into the feasibility of constructing bathing
facilities and had water sampling tests performed.
REGULATIONS
30 C.F.R. §§ 75.1712, 75.1712-1, 75.1712-4 and 75.1712-5
provide as follows:

§ 75.1712

Bath houses and toilet facilities
[Statutory Provisions]

The Secretary may require any operator to
provide adequate facilities for the miners to
change from the clothes worn underground, to
provide for the storing of such clothes from
shift to shift, and to provide sanitary and
bathing facilities.
Sanitary toilet
facilities shall be provided in the active
workings of the mine when such surf ace
facilities are not readily accessible to the
active workings.
§

75.1712-1 Availability of surface bathing
facilities; change rooms; and sanitary
facilities.

Except where a waiver has been granted
pursuant to the provisions § 75.1712-4, each
operator of an underground coal mine shall on
and after December 30, 1970, provide bathing
facilities, clothing change rooms, and
sanitary facilities, as hereinafter
prescribed, for the use of the miners at the
mine.
§

75.1712-4 Waiver of surface facilities requirements.

1363

The Coal Mine Safety District Manager for
the district in which the mine is located
may, upon written application by the
operator, waive any or all of the
requirements of § § 75 .1712-1 through 75 .1712- ··
3 if he determines that .the operator of the
mine cannot or need not meet any part or all
of such requirements, and, upon issuance of
such waiver, he shall set forth the
facilities which will not be required and the
specific reason or reasons for such waiver.
§

75•1712-5 Application for waiver of surface facilities.

Applications for waivers of the
requirements of §§ 75.1712-1 through 75.17123 shall be filed with the Coal Mine Safety
District Manager and shall contain the
following information:
(a)
The name and address of th.e mine
operator;
(b)
The name and location of the mine;
(c) A statement explaining why, in the
opinion of the operator, the installation or
maintenance of the facilities is impractical
or unnecessary.
ISSUES
1.
Whether the Commission has ju.risdiction to determine
whether a waiver of the requirements of 30 C.F.R. § 75.1712-1 was
properly denied by MSHA.

2. Whether a violation of 30 C.F.R. § 75.1712-1 was
established:
(a)
capricious.

Whether MSHA's denial of a waiver was arbitrary or

3. Whether the abatement time for the violation charged in
the contested citation is reasonable.
CONCLUSIONS OF LAW
I.

JURISDICTION

The Secretary challenges the jurisdiction of the Commission
to determine whether MSHA's District Manager properly denied a
waiver of the surface bathing requirements of 30 C.F.R.
§ 75.1712-1.
The Secretary argues that this issue can be

1364

considered only in a petition for modification of the standard
under section lOl(c) of the Act, and that the jurisdiction to
consider such a petition is entrusted to the Secretary and not
the Commission. I disagree. Golden Oak does not seek to modify
a mandatory standard; it asserts that the mandatory standard was
not violated because a waiver provided for in the standard was
arbitrarily refused. This .amounts to a contest of a citation. I
conclude that the Commission has jurisdiction to consider such a
challenge.
II.

VIOLATION

A.
30 C.F.R. § 75.1712-1 requires surface bathing
facilities at all underground mines. No such facility has been
provided at the subject mine.
B. Michael Keene testified that he was acting District
Manager on January 24, 1990, when the waiver was denied. There
is no contrary evidence of record. I conclude that his action in
denying the waiver was the action of the MSHA District Manager.

c. Mr. Keene based his denial of the requested waiver
on his conclusion that an adequate water supply was available at
the mine, since substantial water was being used in the mining
process. He concluded that Golden Oak could and should be held
to the requirements of the standard. The regulations give the
District Manager discretion to grant or deny such a waiver. In
exercising that discretion the District Manager may not act
arbitrarily or capriciously. I conclude that the evidence
establishes that he did not act arbitrarily or capriciously,
but, on the contrary, based his denial on substantial evidence
before him that Golden Oak was able to meet the standard's
requirements. In determining whether he abused his discretion, I
have to look to the facts and circumstances which were made known
to him at the time. Subsequent developments or changes in the
mine situation cannot be used to show an abuse of discretion. I
conclude that a violation of the standard was shown.
III.

ABATEMENT TIME

Golden Oak was notified on January 24, 1990, that the
requested waiver was denied. It took no steps to protest or to
comply until after the citation was issued on April 12, 1990.
The time for abatement was originally set at May 14, 1990, and
later extended to June 18, 1990. So far as the record shows,
Golden Oak's efforts to abate the violation have been minimal.
I
have further extended the abatement time to July 12, 1990. I
conclude that under the circumstances the time for abatement is
reasonable.

1365

ORDER
Based on the above findings of fact and conclusions of law,
citation 3370565 issued April 12, 1990 is MODIFIED to extend the
termination date to July 12, 1990. As modified the citation is
AFFIRMED. The notice of contest is DISMISSED.

~Ztas ~!:Ji~rzd:i-~~
(/
'

~ames A. Broderick
Administrative Law Judge

Distribution:
Teresa Taylor, Esq., Cook Law Office, 118 Hays Street, P.O.
Drawer 909, Whitesburg, KY 41858-0909 (Certified Mail)
William Taylor, Esq., U.S. Department of Labor, Office of the
Solicitor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
slk

1366