AUGUST 1990
COMMISSION DECISIONS
98-01-90
08-01-90
08-13-90
08-20-90
08-22-90
08-23-90
08-28-90
08-29-90

Big Horn Calcium Company
Southern Ohio Coal Company
Paula Price v. Monterey Coal Company
Sec. Labor for Michael Price & Joe John
Vacha v. Jim Walter Resources
Western Fuels-Utah, Inc.
UMWA, Local 1769 v~ Utah Power & Light Co.
..Pennsylvania Electric Company
Harry Ramsey v. Industrial Constructors Corp.

WEST 89-377-RM
WEVA 89-124-R
LAKE 86-45-D
SE
87-128-D

Pg. 1493
Pg. 1498
Pg. 1505
Pg. 1521

Pg. 1545
WEST 86-113-R
WEST 87-86-C
Pg. 1548
PENN 88-227
Pg. 1562
WEST 88-246-DM Pg. 1587

ADMINISTRATIVE LAW JUDGE DECISIONS
08-02-90
08-03-90
08-03-90
08-06-90
08-08-90
08-08-90
08-09-90
08-10-90
08-16-90
08-21-90
08-22-90
08-22-90
08-24-90
08-27-90
08-28-90
08-28-90
08-28-90

Southern Ohio Coal Company
Westwood Energy Properties
Southern Ohio Coal Company
Wyoming Fuel Company
Crossgates Mining Company, Inc.
Inferno Coals Incorporated
John Erazmus Jr. v. Consolidation Coal Co.
Dravo Basic Materials Co., Inc.
Lang Brothers, Inc.
Sec. Labor for Haryy W. Mullen v. Ernst
Materials Service
UMWA~ Local 2176 v. Emery Mining Corporation
UMWA, Local 1769.v. Emery Mining Corporation
Sec. Labor for Willard Gennoy v. Consolidation
Coal Company
Utah Power & Light Company
Bellaire Corporation
Energy Fuels Coal, Inc.
C. W. Mining Company

WEVA 90-12
PENN 88-42-R
WEVA 89-278
WEST 9'0-238-R
KENT 89-209
KENT 90-6
WEVA 90-108-D
SE
90-86-DM
WEVA 90-48
LAKE 90-57-DM

Pg. 1597
Pg. 1625
Pg. 1627
Pg. 1604
Pg. 1673
Pg. 1675
Pg. 1679
Pg. 1680
Pg. 1690
Pg. 1697

WEST 85-72-C
WEST 85-74-C
WEST 90-77-D

Pg. 1699
Pg. 1700
Pg. 1701

WEST 90-285-R
CENT 89-47
WEST 89-296-R
WEST 90-79

Pg. 1706
Pg. 1726
Pg. 1736
Pg. 1738

PENN 90-208-R
KENT 86-1-D

Pg. 1747
Pg. 1749

ADMINISTRATIVE LAW JUDGE ORDERS
08-14-90
08-20-90

Beth Energy Mines, Inc.
Odell Maggard v. Chaney Creek Coal Corp.

AUGUST 1990
Review was granted in the following cases during the month of August:
Big Horn Calcium Company v. Secretary of Labor, MSHA, Docket No. WEST 89-377-R...~
and WEST 90-80-M. (Interlocutory Review of several orders, Judge Broderick)
Golden Oak Mining Company v. Secretary of Labor, MSHA, Docket No. KENT 90-185-R.
(Judge Broderick, June 29, 1990)
Secretary of Labor, MSHA v. Bob Sherman employed by Blackhawk, Docket No.
WEST 90-110-M. (Chief Judge Merlin, Default Decision of July 18, 1990)
Review was denied in the following case during the month of August:
Joe Weitholter v. Quality Ready Mix, Inc., Docket No. LAKE 90-17-DM.
Melick, July 24, 1990)

(Judge

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
~ 730

K STREET NW, 6TH FLOOR
WASHINGTON, D.C. 20006

August 1, 1990

BIG HORN CALCIUM COMPANY
Docket Nos. WEST 89-377-RM
WEST 90-80-M

v.

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
BEFORE: Ford, Chairman; Hackley, Doyle, Lastowka and Nelson, Commissioners
ORDER
BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arises under the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801, et seq. (1988)
("Mine Act"). Big Horn Calcium Company ("Big Horn") petitioned for interlocutory review of orders of the administrative law judges assigned to this
case. For the reasons set forth below, the petition for interlocutory review,
as amended, is granted and this proceeding is remanded for further proceedings
consistent with this order.
On review Big Horn asserts that Administrative Law Judge Michael A. Lasher
abused his discretion by terminating the evidentiary hearing that was in progress and withdrawing from the case before Big Horn had the opportunity to
present its evidence. It also contends that Administrative Law Judge James A.
Broderick, the judge assigned to this matter following Judge Lasher's
withdrawal, .abused his discretion by ruling that all evidence of record developed during the truncated hearing before Judge Lasher would be disregarded and
that a de~ hearing would be.held in Denver, Colorado.

I.
This proceeding commenced when Big Horn contested citations issued by the
Secretary of Labor ("Secretary") at the Granite Canyon Quarry in Laramie County,
Wyoming. The case was assigned to Judge Lasher who, in the notice of hearing,
directed each party to serve on the other a list of witnesses and exhibits and
a precise statement of the issues. The parties exchanged witness and exhibit

1493

lists and filed brief statements of issues. The Secretary listed Thomas Markve
and Michael Munoz, inspectors of the Department of Labor's Mine Safety and Health
Administration ("MSHA"), as her witnesses. Big Horn listed five individuals as
witnesses. Big Horn served interrogatories on the Secretary, but the Secretary
did not conduct any discovery.
The evidentiary hearing commenced at 10:30 a.m. on March 21, 1990. Proceeding first, counsel for the Secretary completed his direct examination of
Inspector Markve on the first day of the hearing. On the second day of the
hearing, counsel for Big Horn was cross-examining this witness when Judge
Lasher terminated the hearing. The judge stated that he would be issuing
orders to counsel requiring them to further prepare this case for hearing
through additional discovery. Tr. 264. Judge Lasher also presented on the
record his personal views on a number of subjects not germane to this
proceeding. Later in the day on March 22, Judge Lasher issued a written
order d:Lisqualifying himself from hearing this case.
The case was reassigned to Judge Broderick. After conferring with the
parties, Judge Broderick issued a prehearing order setting the case for a
de novo hearing in Denver, Colorado, and ruling that the transcript from the
previous hearing would not be considered as substantive evidence. (Big Horn
had requested that the judge consider the transcript from the previous
hearing as part of the substantive record in this case and that the continued
hearing be held in Missoula, Montana). The judge also ordered tlie parties to
file more d~tailed prehearing statements and he allowed additional discovery.
In its petition for interlocutory review, Big Horn maintains that Judge
Lasher terminated the hearing in this matter without cause and without allowing
Big Horn to present its case or cross-examine the Secretary's witnesses. It
argues that in terminating the hearing Judge Lasher arbitrarily denied three
out-of-state witnesses, who had appeared in Denver voluntarily at personal
expense, the right to testify on behalf of Big Horn. It also asserts that
Judge Lasher materially prejudiced Big Horn when he arbitrarily withdrew from
the proceeding without issuing a decision on the merits. Further, Big Horn
maintains that, after the reassignment to him, Judge Broderick abused his discretion and prejudiced Big Horn by granting the Secretary's request that all
evidence presented at the previous hearing be disregarded and a de novo hearing be held. Big Horn asserts that it has no funds with which t~subpoena and
pay the travel expenses of its witnesses, to appear and defend itself in deposition or at a de novo hearing in Denver, or to pay any penalties assessed by the
Secretary. Finally, it states that its witnesses are not available to again
return voluntarily to Denver from Montana at personal expense.
Big Horn requests that the Commission issue an order vacating Judge
Broderick's orders and staying any further hearing pending review of this
matter, awarding attorney's fees to Big Horn pursuant to the Equal Access to
Justice Act (EAJA), 5 U.S.C. § 504, and vacating the citations that are the
subject of this proceeding. In response, the Secretary requests that the
petition be denied or, in the alternative, that the Secretary be allowed to
conduct discovery into the issue of Big Horn's present operational and
financial status. Big Horn filed a response opposing further discovery
in this_case and supplemented its petition with numerous attachments in
an attempt to prove its insolvency. In response, the Secretary repeated
her request for discovery into Big Horn's insolvency claims based, in
part, on the documents submitted by Big Horn.

1494

II.

The pleadings filed before the Com.mission on review make clear that a
factual dispute exists concerning Big Horn's ability to participate
effectively in any further hearing before the administrative law judge.
The Secretary requests further discovery so that she can fully and
properly respond to Big Horn's claim of insolvency. She maintains that
this claim of insolvency and the effect, if any, of such claim on this case
should be addressed by the administrative law judge in the first instance.
As stated above, Big Horn opposes further discovery but submitted documents
not previously entered into the record in support of its claim of insolvency.
The issue of Big Horn's financial status was only sketchily developed
before the judge. The resolution of this issue could have a major effect on
the need for a hearing and the location of the hearing site. We agree with
the Secretary that the administrative law judge is the appropriate adjudicator
to resolve this factual dispute. Therefore, pursuant to section 113(d)(2)(C)
of the Mine Act, 30 U.S.C. § 823(d)(2)(C), we remand this proceeding to Administrative Law Judge Broderick for further proceedings consistent with this order.
Big Horn should be given the opportunity to fully develop in the record its
proffer regarding its financial viability. The Secretary should be given the
opportunity to respond and, if appropriate, to conduct reasonable discovery
on the insolvency issue. Based on the record developed, the parties can then
reconsider how they wish to proceed in this case and, if a hearing is necessary,
the judge can reconsider the location of the hearing site. The order setting
the hearing in Denver, Colorado, is vacated.
The Commission's procedural rule at 29 C.F.R. § 2700.51 provides that the
judge "shall give due regard to the convenience and necessity of the parties"
in setting a hearing site. We have previously held that an administrative law
judge abused his discretion in holding a prehearing conference 900 miles from
the office of a small quarry operator. Cut Slate, Inc., 1 FMSHRC 796 (July
1979). The Commission's procedural rule is derived from section S(b) of the
Administrative Procedure Act, 5 U.S.C. § 554(b). The legislative history of
this section provides that "the agency's convenience is not to outweigh that
of the private parties." Sen. Doc. No. 248, 79th Cong., 2d Sess., 203 (1946).
Thus, a careful balancing of interests is required in setting a hearing site
and on remand the judge should consider the financial health of Big Horn, the
•
location of its witnesses and the ability to secure their attendance when making
this determination.
III.

We agree with Big Horn that Judge Lasher erred in terminating the hearing
on March 22 prior to Big Horn's cross-examination of the Secretary's witnesses
and prior to the testimony of its own witnesses, including witnesses that it
maintains traveled to Denver at their own expense. Nothing in the record
suggests reasonable grounds for the judge to have terminated the hearing
during Big Horn's cross-examination of Inspector Markve. The stated reason
given by the judge was to allow the parties to conduct additional discovery.
At the time he terminated the hearing, however, neither party had requested a
continuance and an ample opportunity for discovery had been previously provided.
Although an administrative law judge is granted broad authority in the conduct

1495

of a hearing, we hold that Judge Lasher abused this authority in abruptl_
terminating the hearing without good cause.
We disagree, however, with Big Horn's assertion that, following the inappropriate termination of the hearing, Judge Lasher's recusal and the substitution of Judge Broderick was an abuse of discretion that materially
prejudiced Big Horn. Section 113(d)(l) of the Mine Act, 30 U.S.C. § 823(d),
gives an operator the right to a hearing before an administrative law judge
but it does not confer the right to a hearing before a particular judge. See
also 29 C.F.R. § 2700.50. An administrative law judge is permitted to
withdraw from a case whenever he deems himself disqualified. 30 C.F.R.
§ 2700.81; 5 U.S.C. § 556(d).
If the judge who is to decide the case is not
the same judge who conducted the hearing and the proceeding is one in which
"the resolution of material conflicting testimony requires a determination of
the credibility of witnesses," a party may request a de nova hearing before the
substitute judge. United States Steel Corp., 6 FMSHR°'C"""l423, 1429 (June 1984).
In this case, however, Big Horn is asking that the proceeding not be heard
de nova. Big Horn has set forth no other substantive reason why this case
~nnot proceed before Judge Broderick.
Judge Broderick ordered a de nova hearing at the request of the Secretary.
discussed above, a de nova hearing may be procedurally necessary in some
instances. In this case, however, the Secretary's first witness has not completed his testimony and there has been no showing that resolution of material
conflicting testimony will be necessary. Given the posture of this case, we
conclude that the judge erred in ordering a de nova hearing. Since Inspector
Markve will be returning to testify, the Judge will be able to fully e'!aluate
his credibility. Thus, if the hearing on the merits is resumed in this case,
it should commence with the cross-examination of Inspector Markve and the record
of the hearing held on March 21 & 22, 1990, should be considered by the judge
in reaching his decision on the merits.
As

Certain portions of the transcript of the March 21-22 hearing contain
comments of Judge Lasher that are not germane to this proceeding. As a consequence, those portions of the hearing transcript are to be disregarded.
Belcher Mine, Inc., 7 FMSHRC 1019, 1030 (July 1985).
VI.

Big Horn also requests attorney's fees, costs and expenses, pursuant to
the EAJA, incurred by Big Horn during the March 21-22 hearing. The Commission
has promulgated procedures that describe who is eligible for an award of
attorney's fees and costs pursuant to the EAJA, and explain how to apply for
such awards. 29 CFR Part 2704. Big Horn's request for an award has not been
filed in accordance with these requirements. Consequently, its request is
denied.

1496

Finally, Big Horn's request that the subject citations be vacated and
the associated_ civil penalties ~~ dismissed is denied. Big Horn is entitled
to a fair hearing as set forth in the Mine Act, but it is not entitled to a
dismissal of the Secretary's case.

v.
For tfle foregoing reasons, the order of Judge Broderick setting this
proceeding for a de novo hearing in Denver, Colorado, is vacated and this case
i& remanded to the--judge for further proceedings consistent with this order.

~
0
/(
r/:v1- ·

i_,./VL

1..d.--.t/I {ft,-t--/1-.{__.-

·Richard V. Backley, Commissio
/

/l..

·Joyce A'. Doyle, Commissioner

Distribution
James J. Gonzales, Esq.
Douglas J. Arnot, Esq.
Holland & Hart
555 Seventeenth St., Suite 2900
P.O. Box 8749
Denver, Colorado 80201
Dennis D. Clark, Esq.
Robert A. Cohen, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1497

r

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

August 1, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. WEVA 89-124-R
WEVA 89-204

v.
SOUTHERN OHIO COAL COMPANY

Before:

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

DECISION

BY THE COMMISSION:
The issue in this consolidated contest and civil penalty
proceeding arising under ~he Federal Mine Safety and Health Act of 1977,
30 U.S.C. § 801 et seq. (1988) ("Mine Act"), is whether Southern Ohio
Coal Company ("SOCCO") violated 30 C.F.R. § 75.400, the mandatory safety
standard prohibiting accumulations of coal dust, loose coal and other
combustible materials i~ active workings and, if so, whether it
unwarrantably failed to comply with the standard. l/ For the following
reasons, we affirm Commission Administrative Law Judge James A.
Broderick's finding of an unwarrantable violation. 11 FMSHRC 2018
(October 1989)(ALJ).

ll

30 C.F.R. § 75.400, which restates section 304(a) of the Mine Act,
30 U.S.C. § 864(a), provides:
Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other
combustible materials, shall be cleaned up and not
be permitted to accumulate in active workings, or on
electric equipment therein.

30 C.F.R. § 75.2(g)(4) defines uactive workings" as:
[A]ny place in a coal mine where miners are
normally required to work or travel.

1498

On January 30, 1989, Bretzel Allen, an inspector of the Department
of Labor's Mine Safety and Health Administration ( 11 MSHA 11 ) , inspected the
E-3 longwall section of SOCCO's Martinka No. 1 Mine, an underground coal
mine located in Marion County, West Virginia. fl Allen was accompanied
by MSHA supervisory inspector, Paul Mitchell, and by representatives of
the miners and mine management.
After inspecting the longwall face and the longwall shields,
Inspector Allen turned his attention to the tailgate entry. There, the
inspector observed. a "windrow" or ridge of loose coal variously
estimated to measure from 58 to 70 feet long, six to eight feet wide,
and four feet high. Gov. Exh. 1; Tr. I 24. Approximately 18 feet of
this windrow was located in the intersection of the longwall face and
the tailgate entry. The other 40 to 52 feet of the loose coal extended
up the tailgate entry into the gob area. See Gov. Exh. 7. The
accumulated coal had been deposited in the tailgate entry by the shearer
as it reached the end of its cut along the longwall face.
Later that day, the MSHA inspectors met with company officials and
discussed SOCCO's longwall cleanup plan. }I SOCCO's cleanup plan
required that five bags of rock dust be spread in the tailgate entry
after each cut of the coal by the shearer. Gov. Ex. 4, Item 30.
Inspector Allen testified: "We ••• discussed how [SOCCO] could reduce
the amount of coal spillage into the tailgate entry, and we also
recommended that [SOCCO] blanket dust the coal in the tailgate heading."
Tr. I 27.
On the following day the inspector returned to the longwall
section and observed that a small amount of rock dust had been applied
to the ridge of coal in the tailgate entry. The inspector took a sample
of the coal to establish its incombustible •content. (The sample was
later analyzed at an MSHA laboratory and was found to be 20.8%
incombustible. Gov. Exh. 3.) Because of the extent of the loose coal
and its lack of sufficient rock dust, the inspector believed that SOCCO
had violated 30 C.F.R. § 75.400. He also found that the violation was
caused by SOCCO's unwarrantable failure to comply with section 75.400
and significantly and substantially contributed to a hazard. The
inspector issued to SOCCO a section 104(d)(2) withdrawal order,
30 U.S.C. § 814(d)(2), which states in part:

fl

The longwall section consisted of headgate and tailgate entries
and the mining face. The mining face extended between the headgate and
tailgate entries for approximately 700 feet. Coal was cut from the face
by the longwall shearer. The roof in the mining face was supported by
approximately 144 longwall roof support shields. Intake air coursed up
the headgate entry, crossed the longwall face and returned down the
tailgate entry. 11 FMSHRC 2019, 2021.
}I
30 C.F.R. § 75.400-2 requires an operator to maintain "[a] program
for regular cleanup and removal of accumulations of coal and float coal
dusts, loose coal, and other combustibles •••• " See Utah Power & Light
Co., 12 FMSHRC 965 (May ·1990).

1499

Loose· coal was accumulated 37 inches dee~ 7 feet
wide for a distance of 18 feet in the tailgate entry
of the E-3 longwall section from engineers spad
station No. 18478 inby and extending an estimated
distance of 40 feet ..• into the gob area •...
Gov. Exh. 1. !:!_/
SOCCO contested the validity of the withdrawal order and its
associated special findings. SOCCO also challenged the civil penalty
proposed by the Secretary for the violation of section 75.400. The
contest and civil penalty proceedings were consolidated for hearing.
Before the administrative law judge, SOCCO maintained it had not
violated section 75.400. SOCCO noted that section 75.400 prohibits the
accumulation of loose coal in "active workings," and that section
75.2(g)(4) defines "active workings," as "any place in a coal mine where
miners are normally required to work or travel." SOCCO argued that
miners are not normally required to work or travel in the area where the
alleged.violative accumulation existed. SOCCO also argued that the
accumulation did not result from an unwarrantable failure to comply with
section 75.400. SOCCO stressed that due to the longwall mining process
an accumulation of loose coal in the tailgate entry was inevitable.
SOCCO also stressed that the instability of the roof in the intersection
of the tailgate and face entries caused by the natural stresses
resulting from longwall mining made it extremely dangerous to send
miners into the unstable area to remove the coal which would, in any
event, soon become part of the gob.
Crediting the inspector's testimony concerning the nature of the
accumulation and the analysis of the inspector's incombustible content
sample, the judge found that the accumulation consisted largely of
combustible loose coal. 11 FMSHRC at 2021, 2022. The judge further
held that the evidence established that the cited 18 feet of the
accumulation (in the tailgate entry) existed in an area where miners
were normally required to travel, making the area "active workings."
Finally, because the accumulation in the tailgate entry had been pointed
out to SOCCO and was not cleaned up or made inert by January 31, he held
the violation resulted from SOCC0 1 s unwarrantable failure to comply with
the standard. 11 FMSHRC at 2022-23. 21
Although SOCCO argues that the judge erred in holding that the
accumulation existed in "active workings," we conclude that substantial
!:!_/
The withdrawal order further alleged that SOCCO violated section
75.400 by permitting' coal and emulsion oil to accumulate ·on parts of the
longwall roof support shields. The judge found that the Secretary
failed to prove this violation. 11 FMSHRC at 2022. The Secretary did
not seek review of this finding.

21

The judge's additional conclusion that the Secretary failed to
prove that the violation was of a significant and substantial nature is
not at issue on review. 11 FMSHRC at 2022.

1500

evidence supports the judge's finding. Three inspectors testified on
behalf of the Secretary: Allen, Mitchell and Ronald Tulanowski. All
agreed that the tailgate entry had to be examined regularly. Inspector
Allen stated that the area in which the subject part of the accumulation
existed "is required to be maintained open for travel for an escapeway
off the longwall.face" as part of SOCCO's approved roof control plan,
and that "[a] fire boss has to travel out into there to make his
examinations of his working section at different times." Tr. I 37.
When asked how often such travel was required, he responded, "Once a
week." Id. Mitchell agreed that the tailgate entry had to be
maintained and examined. He testified that "if anything were to occur
on [the] longwall face those people have to have some way out."
Tr. I 107. He further stated "the entry ••• has to be supported in
order to make a person safe to travel that area, and it is examined by
certified people to see that it is maintained." Tr. I 107. Tulanowski
testified that "Roof control law requires that entry to be open for [an]
emergency escapeway. It has to be examined weekly." Tr. I 125; see
also Tr. I 125-126.
SOCCO acknowledged that fire bosses examine and thus travel the
tailgate entry on a weekly basis. SOCCO Br. to ALJ 21; PDR 6. SOCCO
also acknowledged Mitchell's testimony that the section foreman
regularly examined the area in the tailgate entry adjacent to the last
shield. (Tr. 119). SOCCO stated "other individuals do check more
frequently [than weekly] to determine whether the route from the
longwall face down the tailgate entry is passable." SOCCO Br. to
ALJ 21. Nevertheless, SOCCO objects that although work or travel
normally may have been required in various portions of the tailgate
entry, the Secretary did not prove that work or travel was specifically
required in the cited portion .

.

We note that Tulanowski, Ernest Weaver, SOCCO's section foreman,
and Pat Zuchowski, SOCCO's general manager of longwalls, stated that
miners do not normally work in the area. However, the standard also
applies where miners are required to travel. Tr. I 132, Tr. I 175,
Tr. II 14. As the inspectors all testified, the tailgate entry must be
maintained ~s an escapeway off of the longwall face. Tr. I 37
Tr. I 107; 30 C.F.R. § 75.215. ~/ Further, as even SOCCO agrees, the
entry must be examined. To enter the tailgate entry from the longwall
face, a person must pass through the intersection of the face and the
tailgate entry, specifically through the area immediately adjacent to
the outby end of the accumulation. Such normally required travel
establishes the area as "active workings."
In addition, Mitchell testified without dispute that a ventilation
curtain was maintained outby the erid of the accumulation and that as the
~/

30 C.F.R. § 75.215 states in part:
For each longwall mining section, the roof
co,ntrol plan shall specify the methods that will be
(a) used to maintain a safe travelway out of the
section through the tailgate side of the longwall .•..

1501

face advanced the cL.:tain was moved further outby. He stated, "someone
has to go back there to move that." Tr. I 118. It is not an
unreasonable inference that miners would therefore normally travel
through the intersection to reach the curtain. Compare Cyprus Empire
Corp., 12 FMSHRC 911 (May 1990); See Mid-Continent Resources, Inc.,
6 FMSHRC 1132, 1138 (May 1989).
Given the unanimous testimony of the inspectors that the tailgate
entry area had to be maintained and inspected and the testimony of
Mitchell that the outby check curtain had to be moved, we conclude that
substantial evidence supports the judge's determination that the area
was "active workings" within the purview of section 75.2(g)(4) of the
Act where miners were normally required to travel. We agree with the
judge that the existence of the accumulation in that area violated
section 75.400. II
We turn now to the judge's finding that the violation resulted
from SOCC0 1 s unwarrantable failure to comply with the standard. In
Emery Mining Corp., 9 FMSHRC 1997, 2000-04 (December 1987), and
Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2010 (December 1987), we
held that "unwarrantable failure means aggravated conduct, constituting
more than ordinary negligence, by a mine operator in relation t~ a
violation of the Act. 11 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. We stated that while negligence is
conduct that is "inadvertent," "thoughtless," or "inattentive," conduct
constituting an unwarrantable failure is conduct that is "not
justifiable" or is "inexcusable". Emery, supra, 9 FMSHRC at 2001.
The judge found tha~ the accumulation in the tailgate entry was
brought to SOCCO's attention on January 30, had existed for some time
prior thereto, and had not been cleaned up or rendered inert by
January 31. The judge concluded that SOCCO's allowing the accumulation

II

In arguing in support of the judge's conclusion that the area
constituted "active workings," the Secretary asserts that 30 C.F.R.
§ 75.222(g)(l)(ii) requires miners to work or travel throughout the
tailgate entry, including the cited area, to install supplemental roof
supports. Sec. Br. 8. SOCCO objected to the Secretary's interpretation
of the regulation and attached to its reply brief photocopied pages from
a mine engineering textbook. SOCCO requested that we take official
notice of the materials. SOCCO Reply Br. 8.
The Secretary has moved to strike all reference to the textbook
arguing that the material is not a part of the evidentiary record below,
was not subject to cross-examination or rebuttal by·the Secretary, and
cannot be presented for the first time on review. Because we have
concluded that substantial evidence supports the judge's finding that
SOCCO violated section 75.400 without regard to the Secretary's argument
with respect to 30 C.F.R. 75.222(g)(l)(ii) and the materials referenced
by SOCCO in rebuttal of that argument, we need not reach the merits of
the Secretary's motion to strike._

1502

to continue to exist established its aggravated conduct in connection
with the violation. 11 FMSHRC at 2023. We agree.
The presence of the accumulation was brought to SOCCO's attention
on January 30. Inspector Allen testified that he was accompanied by
David Stout, SOCC0 1 s safety assistant, on that date and that he
discussed the accumulation with Stout. Tr. I, 16, 25. Allen, Mitchell
and Tulanowski also testified that on January 30, in a subsequent
meeting, Allen and other MSHA officials discussed the accumulation with
additional management personnel. Tr. I 27, I 103, I 123. Nevertheless,
the accumulation continued to exist on January 31 and SOCCO had not, by
complying with the provisions of its cleanup plan, lessened the hazard
that the accumulation presented. Compare Utah Power & Light Co., Mining
Division, supra, 12 FMSHRC at 971-72. Allen testified that by January
31 only a small amount of rock dust had been applied to the
accumulation, perhaps one bag. Tr. I 30-31. 'He described the
application as a "very small, minimum amount." Tr. I 30. Safety
Committeeman Grimes described it as "very light" and "very little."
Tr. I 86-87. The judge credited Allen's and Grimes' testimony.
11 FMSHRC at 2021. A judge's credibility findings and resolutions of
disputed testimony should not be overturned lightly, and we find no
basis for doing so here. See, ~' Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 813 (April 1981).
Given the continuing existence of the accumulation on January 31
and the judge's finding regarding SOCCO's noncompliance with its cleanup
plan, we conclude that substantial evidence supports the judge's finding
that the violation was the result of an unwarrantable failure to comply
with the standard. ~/
~/

Responding to SOCCO's assertions regarding the technological
inevitability of the accumulation because of the longwall mining process
and the hazards of proceeding under unstable roof to remove the
accumulation, the Secretary argues that application of rock dust in an
amount sufficient to inert the accumulation andrender it incombustible
would constitute compliance with the cited standard. Sec. Br. 10 n.10.
Such an interpretation may be a counterpart to the Secretary's policy oh
the enforcement of section 75.400 with regard to accumulations of loose
coal caused by sloughing ribs. In the case of rib sloughage the
Secretary has stated that, because removal of such coal amplifies the
hazard of loose ribs, "such loose coal shall not be considered
accumulations of combustible material if such material is rendered inert
by heavy applications of rock dust." Department of Labor, Mine Safety
and Health Administration, Program Policy Manual, Volume V, 52 (1988).
Because of the judge's finding that the accumulations here were
not rendered inert, we are not required to rule on the merits of the
Secretary's interpretation of section 75.400 as expressed in the
referenced footnote. We do note that tension may exist between the
interpretation and the standard, which on its face requires that "loose
coal and other combustible materials shall be cleaned up and not be
permitted to accumulate." See also Black Diamond Coal Mining Co.,
7 FMSHRC 1117, 1121 (August 1985). The Secretary may wish to consider

1503

For the foregoing reasons, we aff~ ·m the judge 1 s decision.

~
~,{---'(_/( ,,{,[,(__//{1LJ-l..-t.
. Richard V. Backley, Commissioner

,·

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'~.-L:_,.

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;

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Joyce A. Doyle, Commissionei:/

James A. Lastowka, Commissioner

d:l1~"ltp_j__~)
L. Clair Nelson, Commissioner

whether the standard comfortably accommodates the longwall mining
technology herein at issue.

Distribution
David M. Cohen, Esq.
Southern Ohio Coal Company
American Electric Power Service Corp.
P.O. Box 700
Lancaster, Ohio 43130
Eva L. Clark, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1504

/

1...--·

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

August 13, 1990
PAULA PRICE
Docket No. LAKE 86-45-D

v.
MONTEREY COAL COMPANY
BEFORE:

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

BY:

Ford, Chairman; Backley, Lastowka and Nelson, Commissioners

This discrimination complaint is before the Commission by way of
cross-petitions for review of Administrative Law Judge Gary Melick's
decision on the merits issued April 12, 1989, 11 FMSHRC 614, and his
final disposition on costs and attorney fees issued June 19, 1989,
11 FMSHRC 1099. Monterey Caal Company seeks review of Judge Melick's
holding that it violated section 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(c)(the Mine Act), by suspending
Paula Price for four days in retaliation for a statutorily protected
work refusal. Price seeks review of the judge's significant reduction
in her claimed costs and attorney fees. For the reasons that follow,
we reverse the judge's holding that Monterey discriminated against Price
in violation of the Mine Act, we dismiss the complaint and we vacate
the award of costs and fees.
Paula Price first filed her discrimination complaint with the Secretary of Lahor on July 28, 1985 pursuant to section 105(c)(2) of the
Mine Act
alleging that Monterey's newly imposed requirement that all

1J

];_/

Section 105(c)(2), 30 U.S.C. § 815(c)(2), provides as follows:
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
(Footnote continued)

1505

miners wear integrated metatarsal work boots had been discriminatorily
applied to her and others who could not obtain properly fitting
footwear. 2/ On August 26, 1985, Price supplemented her complaint by
charging that she had not been allowed to· work for two days and was
thereafter suspended for three days because she "did not have proper
boots to wear." 11 FMSHRC 619. By letter of January 7, 1986, MSHA
Fn. 1/ continued
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
:i:,.rith the Commission, wi.th service upon the alleged
violator and the miner, applicant for employment,
or representative of miners alleging such dis.crimination or interference and propose an order granting
appropriate relief. The Commission shall afford an
opportunity for a hearing (in accordance with section
554 of title 5, United States Code, but without regard
to subsection (a)(3) of such section) and thereafter
shall issue an order, based upon findings of fact,
affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief.
Such order shall become final 30 days after its
issuance. The Commission shall have authority in
such proceedings to require a person committing
a violation of this subsection to take such affirmative action to abate the violation as the Commission
deems appropriate, including, but not limited to,
the rehiring or reinstatement of the miner to his
former position with back pay and interest. The
complaining miner, applicant, or representative of
miners may present additional evidence on his own
behalf during any hearing held pursuant to this
paragraph.
30 U.S.C. § 815(c).
2/
Integrated metatarsal work boots are boots equipped with a permanent
protective shield incorporated into the boot which protects the top of
the foot between the ankle and the toe~.

1506

informed Price that after its investigation of the matter it had concluded
that her complaint of discrimination "ha[d] been satisfied P:d that no
further pursuit of the complaint [was] required." 11 FMSHRC 620. MSHA
also informed Price of her right to file a complaint with the Commission
on her own behalf pursuant to section 105(c)(3) of the Mine Act, 3/ which
she did on January 24, 1986. Id.
Twelve days of hearings on the merits ensued during late 1986 and
early 1987. As post-hearing briefing was concluding, the Commission
issued its decision in Gilbert v. Sandy Fork Mining Co., 9 FMSHRC
1327 (August 1987), wherein the Commission invalidated Commission

1/

Section 105(c)(3), 30 U.S.C. § 815(c) provides as follows:
Within 90 days of the receipt of a complaint filed
under paragraph (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 paragraph (1). The Commission
shall afford an opportunity for a hearing (in accordance
with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and
thereafter shall issue an order, based upon findings of
fact, dismissing or sustaining the complinant'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's charges
under this subsection, a sum equal to the aggregate
amount of all costs and expenses (including attorney's
fees) an 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
violation. Proceedings under this section shall be
expedited by the Secretary and the Commission. Any order
issued by the Commission under this paragraph shall be
subject to judicial review in accordance with section 106.
Violations by any person of paragraph (1) shall be subject
to the provisions of sections 108 an llO(a).

30 u.s.c. § 815(c)(3).

1507

Procedural Rule 40(b), 29 C.F.R. 2700.40(b), by holding that a section
105(c)(3) complaint could not be filed in the absence of a Secretarial
determination that no violation of section 105(c) had occurred. Finding
that the Secretary's January 7, 1986, letter to Price was not a determination that no violation had occurred, the judge held that he lacked
jurisdiction to continue the proceeding and dismissed the case. 9 FMSHRC
1662 (September 1987).
Price's petition for review of the judge's dismissal order was granted
by the Commission on October 13, 1987. Meanwhile, the U.S. Court of Appeals
for the District of Columbia Circuit reversed the Commission's retroactive
application of its revocation of Rule 40(b) in Gilbert, supra. Gilbert v.
FMSHRC, 866 F.2d 1433 (D.C. Cir. 1989). Accordingly, the Commission on
February 28, 1989, vacated its direction for review and remanded the case
to the judge to complete the record and enter a decision. 11 FMSHRC 183
(February 1989). On remand the judge issued his April 12, 1989, decision
on the merits, 11 FMSHRC 614; and his June 19, 1989, disposition of costs
and fees, 11 FMSHRC 1099, both presently on review.
Monterey Coal Company operates a large underground coal mine, the
Monterey No. 2, in Albers, Illinois at which Paula Price is employed.
Sometime prior to early 1985, Monterey conducted studies of foot injuries
at its various operations and determined that those injuries could be
significantly reduced if miners wore metatarsal protective work boots.
Tiie company also determined that greater protection would be provided if
the metatarsal shields were integrated into the miners' boots rather than
by means of temporary clip-on metatarsal guards which had not passed
American National Standards Institute (ANSI) standards for foot protection.
11 FMSHRC 622-23. Monterey began discussing its integrated metatarsal boot
policy with the United Mine Workers of America (UMWA) safety and communications committees in February of 1985, and by a series of announcements in
April and May of 1985, declared that all miners would be required to report
to work with integrated metatarsal boots beginning July 15, 1985. R. Ex. 1.
In response to a suggestion by the UMWA, Monterey agreed to pay for the
first pair of boots so long as they were provided by one of two selected
vendors (Hy-Test and Iron Age) who provided "shoemobile" services to the
mine where boots could be fitted and selected. Miners were pern;iitted to
secure conforming boots from any source but would only be eligible for
free boots ordered from the two selected vendors. 11 FMSHRC 623; Tr. 883,
1065-1070. Miners were informed that both vendors could make any size as
a special order, 11 FMSHRC 623, but that such orders should be placed as
soon as possible. Resp. Ex. 1. Tiie vendors were scheduled to visit the
mine three times each during the latter half of June. Id.
Anticipating that some miners might have difficulty securing the
required shoes by the July 15, 1985, deadline, Monterey advised any such
miners to so inform the safety department. A list of those miners was
drawn up and provision was made for them to wear temporary clip-on
metatarsal guards until the boots on order arrived; the general policy,
however, was that miners who reported for work after the deadline without

1508

intagrated metatarsal boots would not be allowed to work. 11 FMSHRC 623.
Price was unable to secure from the shoe·obile a pair of Hy-Test boots
she had selected, so an order was placed and her name was added to the
list of miners awaiting boot.s. Her pair apparently arrived on time,
however, and she reported for work in them on July 16, 1985. Id.
Price experienced discomfort with the new boots and complained~o her
foreman, Don Overturf, and to an unidentified clerk in the safety
department. She asked that she be allowed to alternate wearing her new
(Hy-Test) boots and her old (Red Wing) boots equipped with temporary
clip-on guards until the new pair was broken in. The safety clerk told
Price he had no authority to grant such an exemption. From July 16 to
July 19, 1985, Price described her discomfort as increasing from redness
to chafing, to raised and loosened skin across the top of her arch and
toes, to blistering. She also complained that the boots caused pains
in her heels at work and "charley horses" in her legs when she tried
to sleep at home.

On July 19, Price showed her feet to foreman Overturf who reported
observing redness but no blisters. In any event, Price left the mine
during the shift on July 19 and reported to the nurse's station.
11 FMSHRC 6Z4-626. The nurse's report also showed redness but no blisters.
R. Ex. 5, Attach. 2. The following day Price visited a doctor who prepared
a note indicating that she had vesicles (small blisters) on her feet and
that she should not wear the new boots. 11 FMSHRC 626. Upon returning
to work on her next scheduled shift of July 22, 1985, Price presented the
note to Ben Chauvin, the mine shift manager, and filed a safety grievance
regarding the boot policy. She was given a one-week exemption from the
new boot policy and was permitted in the interim to wear her old boots
with temporary clip-on guards. 11 FMSHRC 627.
On July 24, 1985, Price filed a second grievance regarding the
company's refusal to excuse her absence for part of her July 19, 1985,
shift and for re~using to treat her foot problem as a work-related
injury. The grievance was settled on July 26, 1985, by the following
agreed-upon terms:
The appropriate manufacturing representative shall
be contacted regarding this employee's shoes. After
such contact is made and a determination given by
the manufacturer, the employee shall make arrangement for providing footwear that meets management
standards for metatarsal shoes.
It was agreed that Price's boots would be returned to Hy-Test to determine whether they were defective. Id. (Price contended that the boots
had "stretched-out." Tr. 657). Price's exemption from the boot policy
was extended until such time as the boots were returned or new boots
were provided. Hy-Test responded that the boots were not defective but
were too big, and sent a replacement pair of a narrower width with the
proviso that Price should be sure the new ones fit before she wore them
underground. 11 FMSHRC 627.

1509

Price received the replacement pair on August 12, 1985 and wore them
at home in an attempt to break them in, but found that she could not
"keep them on [her] feet for more than an hour." 11 FMSHRC 617. Shift
manager Chauvin became aware on August 15, 1985 that Price had received
the replacement pair, and at that point he informed Price that she would
no longer be exempt from the policy and that she would have to report to
work on August 19, 1985, her next working day, with integrated metatarsal
boots. 11 FMSHRC 627. 4/ Price thereupon visited a bootery in an attempt
to have the temporary clip-on guards attached permanently to her old Red
Wing boots but, according to Price, she was told it could not be done for
"liability reasons." On August 19, 1985, Price reported for work wearing
her old boots and her own set of temporary clip-on guards. She was
refused access to the mine and marked AWOL for the day. 11 FMSHRC 628.
Price then secured another doctor's note stating that she required properly fitting boots. She also called Hy-Test to complain that the
second pair of boots did not fit and was advised to return them to
Monterey's mine warehouse so that a third pair could be provided. On
August 20, 1985, after returning the second pair of boots to the
warehouse, Price once again reported for work wearing her old boots and
temporary clip-ons. Chauvin again denied her access to the mine and
marked her AWOL. He also told her that if she failed to appear the
following day with integrated metatarsal boots she would be suspended
and perhaps discharged. 11 FMSHRC 628-29.
Price'made attempts to secure proper boots that day but was told
they would have to be specially ordered which would take two weeks. The
scenario was repeated at the beginning of the August 21, 1985 shift and
when Price and UMWA safety committeeman Burkholder complained to mine
superintendent David Lange, he informed her that she was suspended until
August 26, 1985, at which time she would have to report to work in boots
with integrated metatarsals or risk being discharged. On August 22,
1985, Price met with safety superintendent Gordon Roberts and asked
whether she could comply with the boot policy by having temporary clipon guards attached permanently to her old boots by a cobbler. After
conferring with other Monterey officials, Roberts approved this means of
compliance and a notice to that effect was posted at the mine. Id.
Thereafter Price reported for work on August 26, 1985 in her old--'hoots
with the clip-ons permanently attached and was allowed back into the mine.
11 FMSHRC 618, 629.
On August 28, 1985, the UMWA on Price's behalf filed a grievance
seeking pay for the four days she was marked AWOL or suspended (August
19, 20, 21 and 22) as well as pay for an "idle day" Price claimed she
was entitled to work (August 23) and out-of-pocket expenses connected

4/

The ALJ's decision indicates that Chauvin apparently learned of
Price's receipt of the second pair of boots and issued his ultimatum
on August 18, 1985. This must be error. August 18, 1985, was a Sunday,
a non-working day at the mine. Furthermore, both Price (post-hearing
brief at p. 16) and Monterey (brief on review at p. 8, fn -11) agree that
the correct date was August 15, 1985.

1510

with the grievance. The grievance was settled by the union for four
days' pay tn return for the withdrawal of Price's other grievance demands
but Price was not present at the time the settlement was entered into. Id.
Unsatisfied with the terms of the settlement, Price informed MSHA on
December 16, 1985 that while she had been reimbursed four days' pay, she
felt she was still entitled to the "idle day" pay and to have all references
to the dispute removed from her file. 11 FMSHRC 619.
As described above, the Secretary responded that her complaint "ha[d]
been satisfied" and that further pursuit of the complaint was not required.
In her subsequent section 105(c)(3) filing with the Commission, Price again
requested the "idle day" pay and removal of all references to the dispute
from her file. 11 FMSHRC 621. After a preliminary hearing before the ALJ,
held July 9, 1986, Price added claims for her "expenses related to the
litigation of her complaint" and "a pair of boots that fit." Id.

In his decision on the merits, the judge reduced what he described
as Price's "somewhat rambling and ambiguous complaints" to the following
basic complaint: that Price "was suspended from work by Monterey because
she in essence refused to perform work under a work rule that was un~
healthful and unsafe as applied to her." 11 FMSHRC 622. 5/ This
distilled complaint provided what the judge termed a "framework" for
analyzing the case in terms of work refusal precedents established by
the Commission.
Reviewing the evidence the judge determined: that Price's first pair
of boots was ill-fitting and caused injuries to her feet; that Price was
unsuccessful in breaking in the second pair of boots; that ill-fitting
boots would present a hazard of possible infection from abrasions and
blisters, or could cause a stumbling hazard or interfere with her safe
evacuation of the mine in an emergency; and that Price had made good
faith efforts to secure properly fitting boots before and during the
period of her suspension. On those bases the judge concluded that
Price's continued refusal to comply with Monterey's work rule requiring
the wearing of integrated metatarsal boots from August 19 through
August 22, 1985, constituted a protected work refusal based on a good
faith reasonable belief that it would have been hazardous to comply with
the rule. 11 FMSHRC 622, 630.
The judge also found that Price had sufficiently communicated the
hazards associated with her wearing ill-fitting metatarsal boots to
5/
The judge made note of other alleged acts of discrimination in
Price's post-hearing brief but held they were not properly before him
since they had not first been presented to the Secretary under section
105(c)(2). In short, he held that Price had "neither exhausted her
administrative remedies nor met a statutory condition precedent."
11 FMSHRC 622, fn. 4. The judge also noted that Price's underlying complaint had not been amended to include the .additional allegations nor
had Price or her attorney complied with Commission Rule 42(a), 29 C.F.R.
2700.42(a), dealing with the contents of a discrimination complaint. Id.

1511

various Monterey officials, including foreman Overturf and shift manager
Chauvin. Lastly, the judge concluded that Monterey's refusal to allow
Price to work from August 19 througr. August 22, 1985, was motivated
solely by her refusal to wear integrated metatarsal boots. 11 FMSHRC 630.
Having found protected activity and adverse action motivated solely
by that activity, the judge sustained Price's complaint with respect to
the loss of four days' work while she was marked AWOL or on suspension. 6/
He also held that Price was entitled to recover her costs associated with
pressing her complaint in both the proceeding before him and in the
grievance proceeding. Lastly, the judge directed Monterey to delete from
its records any references to disciplinary action taken against Price for
her refusal to wear integrated metatarsal boots. The judge denied,
however, Price's request for a company-paid pair of integrated metatarsal
boots since she had waived such an entitlement by requesting to wear her
old boots with clip-on guards permanently attached. He also denied her
claim for compensation for the "idle day" of August 23, 1985. The judge
thereupon directed the parties to submit written statements and responses
with respect to the costs to be awarded.
In the supplemental proceeding to determine fees and costs, Price
submitted the following claims: $187.36 incurred in connection with her
grievance proceeding: $4,250.98 in costs of prosecuting her section
105(c)(3) claim; and $24,107.79 in attorney's fees. Monterey opposed
the award of costs or fees on the grounds that they were not authorized
under the circumstances of the case and were, in any event, well in
excess of "any conceivable fee and expense entitlement." 11 FMSHRC
1099. Monterey argued that Price was foreclosed from recovering costs
associated with her labor grievance since that had been settled by th~
company's payment of the four days' pay in return for the dropping of
all other claims. Tha judge, however, dismissed the challenge on two
grounds. First, the costs incurred by Price in processing her grievance
were directly related to the development of evidence necessary for the
section 105(c)(3) case and were thus, in terms of 105(c)(3), "in connection with the institution and prosecution" of her discrimination complaint
before him. Second, Price had not consented to the settl~ment reached
between Monterey and the UMWA acting on het behalf. 11 FMSHRC 1100.
The judge did, however, substantially reduce the claimed court costs
and attorney fees on the ground that section 105(c)(3) limits such awards
to those costs and expenses "reasonably incurred." Id. To determine the
reasonableness of Price's costs and fees, the judge relied on Hensley v.
Eckert, 461 U.S. 424 (1983) and Copeland v. Marshall, 641 F.2d 880 (D.C.
Cir. 1980). While noting that an appropriate attorney fee may be determined by multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate, the judge indicated that the
party's partial or limited success may render the product of that
multiplication excessive. Thus, "the court necessarily has discretion
in making this equitable judgment." 11 FMSHRC 1101. The judge then
noted that while Price had alleged 31 protected activities and 14 acts
6/
As noted above,
Price had recovered her pay for the four days'
work through settlement of her grievance under the labor contract.

1512

of discrimination (some of which he called "facially frivolous"), she
prevailed on only one act of discrimination.
The judge also considered the quality of Price's representation as
another factor in determining the appropriate fee. Here, he concluded
that the inordinate length of trial - 12 days for a case that should
hav.e taken 2 days "'." was chargeable to Price's counsel. He also noted
counsel's lack of preparation, focus, and understanding of the law;
her frequent and extraordinary delays between questions; and her
repeated failure to promptly appear and be ready for trial as bases
for significantly.reducing the "lodestar" fee. Taking the above matters
into consideration, the judge reduced the request for costs and fees
to $4,800 which added together with the costs claimed for the grievance
proceeding, resulted in an award of $4,987.36.

On review, Monterey's first exception to the judge's decision is
that he erroneously characterized the dispute over the integrated
metatarsal boot policy as a work refusal case. Monterey argues that
Price never refused to work; rather, Monterey refused her access to the
mine from August 19 to August 22, 1985, because she refused to comply
with a company safety rule, i.e., wearing integrated metatarsal boots on
the job. Monterey brief pp. 17-18. Viewed from that perspective, the
company asserts, it does not matter whether Price was unwilling or unable
to comply with the metatarsal boot policy; a mine operator can establish
"proactive" company safety rules or requirements and a miner's failure
to comply, for whatever reason, should not be deemed protected activity
for purposes of the Act.
In the alternative Monterey asserts that even if the case involves
a work refusal, Price's claim should be rejected for two reasons:
(1) the "hazard" complained of did not justify Price's work refusal, and
(2) Price lacked a good faith reasonable belief that a hazard existed.
In that regard Mon~erey first avers that the complained-of hazard was
personal to Price and was not under Monterey's control. Monterey further
asserts that work refusal rights are intended to be invoked only in the
face of a hazard which is "relatively severe and imminent". Monterey
contends that the hazard faced by Price on August 19, 1985, was
"discomfort from ill-fitting boots that had not yet been broken in" and
that the judge~s finding of a hazard with respect to the boots is so
remote and speculative that it cannot justify a refusal to obey a direct
work order. Id. p. 27.
With respect to Price's good faith reasonable belief in the existence
of a hazard warranting a work refusal, Monterey asserts that Price could
have taken the necessary steps that ultimately brought her into compliance
with the work boot policy before the threat of suspension with intent to
discharge became a reality. In sum, Monterey takes the position that it
was Price's responsibility to secure a pair of boots that complied with
the company's integrated metatarsal policy and which fit to her
satisfaction; that the company made reasonable efforts to accommodate her
by extending her time to comply; and that its imposition of disciplinary
measures was justified in order to ensure her compliance.

1513

For her part, Price asserts that she· did engage in a protected work
refusal based upon her good faith, reasonable belief that her replacement
boots were unsafe or unhealthful to wear on August 19, 20 and 21, 1985.
Price further argues that once a miner expresses to an operator a good
faith reasonable fear of a hazard, the operator has a corresponding
obligation to address the perceived danger or provide another method of
performing the same work that is safe. Price contends that she continued
to reasonably respond to the perceived hazard throughout her suspension
while Monterey refused to offer her a reasonable alternative method of
performing her job until the work boot dispute could be resolved, i.e.,
an extension of time for Price to comply until she could: secure a third
pair of boots from Hy-Test, have temporary metatarsal guards permanently
attached to her old boots, or secure a specially fitted shoe.
In sum, it is Price's contention that the integrated metatarsal
boot policy was unhealthful and unsafe as applied to her, since she
was unable to secure a pair of boots during July and August of 1985
that would fit her properly and would not cause her discomfort to such
an extent that she could not work safely. Given that premise, Price
asserts, it was incumbent upon Monterey either to provide Price with a
pair of boots that both complied with its policy and did not pose a hazard
to her or offer Price an alternative, interim means of compliance until
the larger dispute was resolved.

The Comm.:l.ssion has long held that a miner seeking to establish a
prima facie case of discricrination under section 105(c) of the Mine Act
must prove that he or she engaged in protected activity and that the
adverse action complained of was motivated in any part by that protected
activity. Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC
2786, 2797-2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co., v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 817-18 (April
1981). The operator may rebut the prima facie case by showing either
that no protected activity occurred or that the adverse action was not
motivated by the protected activity. Failing that, the operator may
defend affirmatively against the prima facie case by proving that it
was also motivated by unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone. Pasula,
supra; Robinette, supra, (the so-called Pasula-Robinette test). See
also Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983).
Within this general construct, it is also well-established that in
certain circumstances a miner's refusal to work constitutes protected
activity. Pasula, supra, Robinette, supra; Miller v. FMSHRC, 687 F.2d
1994 (7th Cir. 1982); Simpson v. FMSHRC, 842 F.2d 453 (D.C. Cir. 1988).
The genesis for the recognition of certain work refusals as protected
activity is the Senate Report on the 1977 Act, which endorsed a miner's
right to refuse "to work in conditions which are believed to be unsafe
or unhealthful." S. Rep. No. 81, 95th Cong., 1st Sess. 35 (1977). In
order to be protected work refusals must be based upon the miner's "good
faith, reasonable belief in a hazardous condition." Robinette, 3 FMSHRC
812; Gilbert v. FMSHRC, supra 866 F.2d at 1439.

1514

The Commission has eschewed the setting of a bright line threshold
of severity in determining ''how severe a hazard must be in order to
trigger a miner's right to refuse work." Pratt v. River Hurricane Coal
Co., 5 FMSHRC 1529, 1533 (September 1983). We have instead preferred to
resolve that issue on a case by case basis. Id., See also, e.g., Pasula,
supra at 2793 and Robinette, supra at 809 fn.-r1. Mindful that work
refusals are not explicitly addressed in the Mine Act but are derived
from its legislative history and our own decisional attempts to implement
the overall safety and health goals of the Act, we are initially skeptical
as to whether Congress would have envisioned that discomfort arising from
a miner's wearing of ill-fitting clothing would constitute a "sufficiently
serious danger" (Robinette, 3 FMSHRC at 816) to justify a work refusal.
Mining is not the most comfortable of professions. Many items of basic
miner's apparel or gear such as clothing, personal protection equipment and
other safety accessories (e.g., cap lamps and batteries, self-rescuers, hardtoed shoes and hard hats) contribute to the general discomfort of laboring in
an underground mining environment. It is problematic, however, to compare
such discomfort, in either type or degree, to the hazards heretofore at
issue in work refusal cases brought before the Commission.
With the foregoing as a preface, our analysis of the record in this
case leads us to conclude first that the judge was correct in treating
the events of August 19 through August 22, 1985 as a work refusal on
Price's part. While it is true, as Monterey argues, that Price actually
presented herself for work on those days, but was refused access to the
mine for lack of mandated footwear, Price's refusal/failure to comply
with the company's metatarsal boot policy constitutes a refusal to comply
with a mandatory work rule. We therefore reject Monterey's assertion
that the judge erred in treating this matter as a work refusal case and
analyzing it in those terms.
We find, however, that the work refusal was not a reasonable one and
therefore was not protected by section 105(c) of the Mine Act. Consequently,
Monterey did not violate the Act by denying Price access to the mine and
suspending her until such time as she came into compliance with the metatarsal
boot policy. We reach that conclusion on the ground that the "hazard" posed
to Price by the wearing of metatarsal boots was not sufficient to warrant
her continued refusal/failure to comply with Monterey's work rule. We
further find that whatever "hazard" Price subjectively feared with respect
to wearing metatarsal boots was one within her power to overcome as she
ultimately did once disciplinary measures were imposed by Monterey. J../
7/
While substantial evidence supports the judge's finding that the
first pair of metatarsal boots did cause Price discomfort and that she
was unsuccessful in breaking in the second pair, his findings that the
boots would present a stumbling hazard or impede her safe evacuation of
the mine in the event of an emergency are highly conjectural and are
based on Price's own speculative assertions. We therefore reject
these latter findings as they relate to the work refusal at issue.

1515

Part of the difficulty in resolving this case is attributable to the
complainant's (and t some extent the judge's) tendency to narrow the dispute before us to the two or three days immediately preceeding Monterey's
denial of access to Price and her ensuing suspension. In fact, however,
disciplinary measures were not taken until a full four months after the
metatarsal boot policy was first announced and more than a month after
the new policy actually took effect. During that period Price's problems
with compliance were accommodated and extensions of time for her to comply
were granted in connection with her ongoing grievance concerning the
policy. While we do not minimize the discomfort owing to ill-fitting
shoes or boots, we are at a loss to determine what more Monterey could
have done in these circumstances where the level of comfort associated
with the wearing of new boots is a particularly subjective and personal
matter.
Furthermore, the record clearly indicates that the method by which
Price ultimately came into compliance with the policy was available to
her prior to August 19, 1985. Price testified that she was aware that
another miner experiencing problems with Hy-Test boots, Dorothy Liske,
had on July 23, 1985 removed the metatarsals from her new boots and had
them permanently attached to her old boots by a cobbler, apparently
without incident and with Monterey's knowledge. Tr. 792-794. Price,
herself, had on August 17, 1985 sought to have the clip-on metatarsals
permanently attached to her old boots at one bootery but was told it
could not be done for "liability reasons." 11 FMSHRC 628. Nevertheless,
she was able to quickly locate another cobbler who would do the work
several days later as soon as she was placed under the threat of suspension with intent to discharge.
In addition to retrofitting her old boots to achieve compliance, the
record indicates that from the outset of the policy Monterey informed the
miners that those with particular fitting problems could special order
boots from one of the designated vendors. Yet, for reasons unexplained
in the record Price had apparently never attempted to place a special
order with Hy-Test although by the time of the hearings in this case she
had ordered and sent back five pairs of boots to the vendor. Tr •. 839.
We note in this regard the grievance settlement entered into between
Price and Monterey on July 26, 1985 placed the onus of securing footwear
that met the metatarsal boot policy squarely on Price.
Lastly, it should be borne in mind that the work rule at issue is
one specifically designed to enhance Price's safety. We cannot,
accordingly, conclude that her refusal to comply with a legitimate work
rule adopted to advance the Mine Act's goal of protecting miner safety
falls within the realm of conduct intended by Congress to be protected
by section 105(c).

1516

We therefore reverse the judge's finding that Monterey discriminated
against Price in violation of the Mine Act and dismiss the complaint. In
view of our disposition on the merits, we also vacate the judge's award of
costs and attorney fees. §_/

8/
Since we are vacating the award of costs and fees, the issue raised
in Price's petition with respect to the propriety of the judge's substantial reduction of costs and fees is moot.

1517

Commissioner Doyle, concurring:
In its decision, the majority concludes that Monterey did not discriminate
against Price in violation of the Mine Act. It does so after finding that Price
was engaged in a work refusal but that the hazard posed was not sufficient to
warrant her refusal to comply with Monterey's work rule. Slip op. at 11. I
concur in the conclusion that Monterey did not discriminate against Price but do
so based on my opinion that Price's conduct was a refusal to comply with a work
rule, not a refusal to work.
Monterey Coal Company, after conducting studies of foot injuries at its
operations, determined that those injuries could be significantly reduced if
miners were required to wear integrated metatarsal-protective work boots.
After discussing its plans with the UMWA, Monterey instituted a policy
requiring all miners to wear such boots and agreed to pay for the first pair
for each miner, who purchased his boots from one of two particular vendors.
Price experienced a series of problems with the boots she ordered. As
indicated in the majority's decision, Monterey attempted for more than a
month to accommodate Price's problem with her boots. Slip op. at 12. Those
accommodations did not resolve the problem and Price reported to work on
August 19 wearing her old boots with temporary clip-on guards. She was
denied access to the mine on that day and again on August 20 and August 21,
when she was suspended. 11 FMSHRC 618, 628-29.
A min~r's refusal to perform work is protected under section 105(c) of
the Mine Act if it is based on a reasonable, good faith. belief that the work
involves a hazard. Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2789-2796
(October 1980), rev'd on other grounds, sub~· Consolidation Coal Co. v.
Marshall, 663 F;2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803, 807-12 (April 1981). 11 The case law
addressing work refusals contemplates some form of conduct or communication
manifesting an actual refusal to work." Perando v. Mettiki Coal Corporation,
10 FMSHRC 491, 494 (April 1988), quoting Secretary on behalf of Sedgmer v.
Consolidation Coal Co., 8 FMSHRC 303, 307 (March 1986).
The judge found that Price's refusal to comply with Monterey's work rule
requiring integrated metatarsal boots "was a protected work refusal based on
a good faith, reasonable belief that it would have been hazardous to comply
with." 11 FMSHRC 630. He also found that she had communicated the hazardous
nature of wearing ill-fitting integrated metatarsal boots, thus meeting the
"communication" requirement. 11 FMSHRC 630.
While the record may support the judge's finding that Price communicate9
what she saw as the hazardous nature of wearing ill-fitting boots, the record
does not show, nor did the judge find, that Price at any time communicated a
refusal to work. And while the majority agrees that Price presented herself
for work each day but was refused access to the mine, it concludes that Price's
refusal to comply with a mandatory work rule equates to a refusal to work. Slip
op. at 11. I disagree.
In Perando, 10 FMSHRC 491, the claimant, an underground miner, developed
industrial bronchitis and her physician recommended that she be placed in a
"position without exposure to coal dust." She agreed to be transfer.t"ed to a

1518

laboratory position, but then failed to report to work for a substantial period
of time. Sub quently, she filed a section 105(c) claim against the operator
because he did not retain her higher, underground rate of pay. The
administrative law judge concluded that while Perando had never refused to work
underground, her "medically substantiated inability to work underground" was
the "functional equivalent of a work refusal" and that this "refusal" was
protected activity. 8 FMSHRC 1220, 1222.
The Commission unanimously reversed the judge, finding no evidence of a
work refusal, and specifically disagreeing with the judge's determination that,
while Perando had never refused to work underground in the traditional sense,
her medical condition was the functional equivalent of a work refusal. 10 FMSHRC
495. The Commission also found that none of the doctors' reports stated directly
or indirectly that Perando was refusing to work. Even viewing the doctor's
reports and Perando's actions together, we found no work refusal. Id.
I am unable to distinguish the present case· from Perando. Price, like
Perando, presented a doctor's note, which diagnosed small blisters and
recommended that she not wear her new boots. In addition, Price presented
herself for work each day, something more than Perando did. Price's .actions
alone or taken in conjunction with her doctor's note did not communicate an
"actual refusal to work" as required by Sedgmer, 8 FMSHRC 303, or Perando.
Accordingly, I would dismiss her complaint on that basis.
The Mine Act gives miners and their representatives the right to play a
major role in enforcement of the Mine Act. In order to encourage the exercise
of those rights, section 105(c) was enacted in an effort to preclude discrimination motivated by those activities. Also protected is the right to refuse to
work in unsafe or unhealthful conditions and the right to refuse to comply with
orders that are violative of the Mine Act. 1/ Congress intended that miners not
be inhibited in exercising any rights afforded by the Act.
I see nothing in the legislative history, however, to indicate that Congress
intended to give miners the right to refuse work on the basis of problems that
are totally idiosyncratic to the miner and over which the operator has no control.
While a particular miner may hold a good faith, reasonable belief that it is
unsafe or unhealthy for him or her to wear shoes that don't f'it or a hard hat
that provokes a headache, to work underground with industrial bronchitis, to
lift timbers with a bad back or while pregnant, or to work at all because of

I/ The Senate Committee stated that section 105(c) "is intended to give
miners, their representatives, and applicants, the right to refuse to work
in conditions they believe to be unsafe or unhealthful and to refuse to comply
if their employers order them to violate a safety and health standard promulgated under the law" (emphasis added). S. Rep. No. 181, 9th Cong., 1st
Sess. 36 (1977). The Committee cited with approval Phillips v. IBMA, 500 F.2d
772 and Munsey v. Morton, 507 F.2d 1202. In Phillips the conditions involved
excessive coal dust and defective electrical wiring, 500 F.2d at 774-775, while
Munsey involved a roof fall and loose roof. 507 F.2d at 1204-1205. See S. Rep.
No. 181, 95th Cong., 1st Sess. 36 (1977).

1519

lack of sleep, I do not believe that these are rights protected by the Mine Act
or that Congress intended the oper- :or to be charged with discrimination for
failing to accommodate them, irrespective of the seriousness of the hazard.
On this broader basis, I would also dismiss Price's complaint.

e~lea.~
Commissioner

Distribution
Thomas C. Means, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Michael J. Hoare, Esq.
134 North Broadway
St. Louis, Missouri 63102
Administrative Law Judge Gary Melick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1520

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

August 20, 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of MICHAEL L. PRICE
and JOE JOHN VACHA
and
UNITED MINE WORKERS OF AMERICA

v.

Docket No. SE 87-128-D

JIM WALTER RESOURCES, INC.

BEFORE:

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

DECISION

BY:

Backlej, Doyle and Nelson, Commissioners

This proceeding, arising under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"),
involves a discrimination complaint brought by the Secretary of Labor
against Jim Walter Resources, Inc. ( 11 JWR"). The complaint alleges that
complainants Michael L. Price and Joe John Vacha were discharged in
violation of section lOS(c) of the Mine Act after they failed to provide
urine samples required under section !I.E. of JWR's Substance Abuse
Rehabilitation and Control Program ("Drug Program").
Commission Administrative Law Judge James A. Broderick concluded
that section !I.E. of the Drug Program, which applies to certain
supervisory and hourly employees, "whose duties, whether by job title or
by reason of elected office, involve safety, 11 is facially discriminatory
be.cause the only hourly employees covered are members of the safety
committees at JWR's mines. 10 FMSHRC 896 (July 1988)(ALJ). The judge
accordingly determined that the discharges of Price and Vacha pursuant
to the Drug Program after they failed to provide urine samples were
illegal under section lOS(c), 30 U.S.C. § 81S(c), and ordered their
reinstatement. The judge further found, however, that section !I.E. of
the Drug Program had not been discriminatorily applied to Price and

1521

Vacha. The judge issued a sur lemental decision awarding back pay and
expenses and assessing a civil penalty of $500. 10 FMSHRC 1108 (August
1988)(ALJ). We granted JWR's petition for discretionary review and
heard oral argument. For the following reasons, we reverse the judge's
determination that the Drug Program is facially discriminatory under
section 105(c) of the Mine Act. We also reverse the judge's conclusion
that section !I.E. was not discriminatorily applied to Price and Vacha,
and remand for further findings and analysis as explained below.
I.

Factual Background and Procedural History
JWR operates five underground coal mines, a training facility, and
a central shop, all located in Alabama, employing over 2,800 employees,
including 2,200 hourly workers represented by the UMWA. Each JWR mine
has a local union, all affiliated with District 20 of the UMWA. At all
times relevant to this proceeding, the UMWA and JWR were signatories to
a collective bargaining agreement governing labor relations in the JWR
mines.
The bargaining agreement establishes a Mine Health and Safety
at each mine composed of miners "who are qualified by mining
experience and training and selected by the local union." The committee
is given the right to inspect any portion of a mine and to report any
dangerous conditions to management. If the committee believes that an
imminent danger exists and recommends that the mine operator remove all
employees from the involved area, the operator is required to comply
with the recommendation. The judge noted: "Under the Act, the safety
committeemen are considered representatives of the miners. They may
request MSHA inspections under section 103(g), and normally accompany
the MSHA inspector during his physical inspections of the mine." 10
FMSHRC at 902. The safety committeemen are elected by members of the
UMWA, and committeemen choose their chairmen and select alternate
committee members. Id.
Committ~

At a meeting held in or around April 1986, JWR representatives and
UMWA officials agreed that a significant problem of substance abuse
existed among JWR's miners. High discharge, accident and absentee rates
were attributed, at least in part, to drug abuse. 10 FMSHRC at 898.
The representatives agreed that the problem should be addressed by a
joint company-union program. Id. Richard Brooks, JWR's Vice President
for Industrial Relations, proposed that the program include education,
drug testing, and rehabilitation. The UMWA believed that development of
the program should be subject to the collective bargaining process. Id.
Brooks subsequently prepared a proposed draft program, which was
submitted to UMWA representatives in July 1986. 'Brooks received no
response to the draft from the UMWA, and JWR distributed copies of its
Drug Program to UMWA district and local representatives at a meeting on
September 24, 1986. In October 1986, JWR advised UMWA representatives
that the Drug Program would take effect on January 1, 1987. By early
November 1986, a notice containing a copy of the Drug Program was posted
at each mine location and each employee received a copy of the program

1522

with his or her paycheck. 1/
The details of the Drug Program are swmnarized in the judge's
decision. See 10 FMSHRC at 899. At issue is section !I.E. of the Drug
Program, dealing with random drug testing, which states:
Any employee whose duties, whether by job title or
by reason of elected office, involve safety, shall
be subject to random testing for substance abuse up
to four times per calendar year. Physicals for
hoistmen shall also include testing for substance
abuse. All provisions of the prog.ram shall apply to
employees in this category.
The judge accepted Brooks' testimony that, as used in section
ILE., the phrase "employee[s] whose duties ••• by job title ... involve
safety" encompassed safety inspectors, dust and noise control
supervisors, and section foremen, all salaried positions. 10 FMSHRC at
899. The only hourly employees covered were union safety commit~eemen,
who came under the phrase "employee[s] whose duties •.. by reason of
elected office .•• involve safety." Id.
At the time the Drug Program was implemented, complainants Michael

1/

On November 5, 1986, the UMWA filed charges with the National
Labor Relations Board ("NLRB"), pursuant to the National Labor Relations
Act, 29 U.S.C. § 151 et seq. (1982)("NLRA"), challenging JWR's
unilateral implementation of the Drug Program. The NLRB def erred to
arbitration proceedings, also initiated by the UMWA, premised on the
parties' collective bargaining agreement. JWR and the UMWA subsequently
reached a settlement before the arbitrator, the terms of which were set
out in an Opinion and Award dated January 27, 1987. Under that opinion,
JWR would implement its Drug Program and the arbitrator would retain
jurisdiction to resolve any grievances arising under the program.
After the first grievances were filed and acted on, the UMWA filed
suit in federal district court to vacate the arbitrator's decision,
alleging that the union had not agreed to implementation of the Drug
Program. The district court granted sunnnary judgment in JWR's favor,
and denied the UMWA's motion for reconsideration. On July 27, 1988, the
United States Court of Appeals for the Eleventh Circuit summarily
affirmed the district court. (By order of October 12, 1988, we
permitted JWR to supplement the record in the present proceeding to
include therein a copy of the Eleventh Circuit's unpublished order.)
Meanwhile, the UMWA renewed its unfair labor practice charges
before the NLRB. In a letter dated August 31, 1988, the NLRB regional
director declined to institute an unf ~ir labor practice complaint based
on those charges. (This letter is also included in the supplement to
the record referred to above.) The Regional Director noted that the
district court and Eleventh Circuit had rejected the UMWA's claim that
it had not agreed in settling the arbitration to waive objections to
implementation of the Drug Program.

1523

L. Pr·~e and Joe John Vacha were employed at JWR's No. 4 Mine, an
underground coal mine located near Tuscaloosa, Alabama. 2/ Price had
worked for JWR for approximately nine years and had been-a union safety
committeeman for about eight and one-half years. Vacha had also worked
for JWR for nine years, and had been a union safety committeeman for
approximately six years. Price was classified as a longwall helper and
Vacha as a continuous miner operator although, in recent years, he had
actually worked on assembling self-contained rescuers.
Vacha had filed from 75 to 100 safety or health complaints with
the Secretary under section 103(g)(l) of the Mine Act, 30 U.S.C.
§ 813(g)(l), and had participated in 50 to 75 safety grievances.
Price
had filed approximately 25 section 103(g)(l) complaints annually and had
handled approximately 70 safety grievances. Price and Vacha estimated
that they spent approximately 50% of their working time on safety
committee duties. Both had been involved in disputes with management
over safety-related activities and in 1986 Price had been discharged but
reinstated following arbitration.
In late February 1987, Brooks decided to begin random testing of
the safety-related employees in all the JWR Mines under section II.E. of
the Program. He notified the industrial relations supervisors of this
decision and directed them to test all employees covered by section
II.E. on March 2, 1987. The record reflects, however, that, for various
reasons, the urine samples were obtained from affected employees on
March 2, 3, 6, and 9, and on April 8, 1987. In the No. 4 Mine, where
Price and Vacha worked, sampling was delegated by the Industrial
Relations Supervisor, Rayford Kelly, to Wyatt Andrews, a JWR safety
inspector, and Bob Hendricks, a JWR associate safety director. (In the
other mines, the samples were taken under the direct supervision of the
industrial relations supervisors.)
Price and Vacha worked on ·the day shift -- 7:00 a.m. to 3:00 p.m.
At about 8:00 a.m. on March 2, 1987, Price was informed that he would
have to submit a urine sample. Vacha was similarly notified at about
11:30 a.m. At the end of their shift, they went to the office of
Rayford Kelly. Complainants went into a bathroom with Andrews but were
unable to urinate. Water, coffee and soft drinks were made available,
but the requested urine samples were not forthcoming. At about
7:00 p.m. (four hours after completion of their shift), Kelly told Price
~/

Neither Price nor Vacha tes~if ied at the hearing on the merits in
this proceeding. The recitation of facts is based on testimony and
other evidence incorporated by the judge in his decision (10 FMSHRC at
897) from earlier proceedings concerning their temporary reinstatement.
On July 7, 1987, upon application by the Secretary, the judge ordered
that the miners be temporarily reinstated pursuant to section 105(c)(2)
of the Mine Act, 30 U.S.C. § 815(c)(2), and Commission Procedural Rule
44, 29 C.F.R. § 2700.44 (1986). We have previously affirmed that order.
9 FMSHRC 1305 (August 1987). JWR appealed the Commission's temporary
reinstatement order to the United States Court of Appeals for the
Eleventh Circuit, where the matter currently is pending (No. 87-7484,
petition for review filed August 7, 1987).

1524

and Vacha that they would be given 30 minutes to provide a sample or
they would be disciplined. Price's request that they be permitted to
return the next morning to provide the samples was refused. At
approximately 7:20 p.m., they were given five more minutes to produce a
specimen or be discharged. At 7:30 p.m., they were each given formal
five-day suspensions with intent to discharge for insubordinate conduct.
The following morning, March 3, 1987, Price and Vacha had drug screening
tests at the Emergicare Center (JWR's contract physicians) and at the
Longview Hospital, respectively. The test results were negative and
were submitted to JWR. 10 FMSHRC 900-01, 909-10. }/
On March 9, 1987, Price and Vacha filed discrimination complaints
with the Secretary pursuant to 30 U.S.C. § 815(c)(2). As noted, the
Secretary's application for temporary reinstatement was granted by the
judge and affirmed by the Conunission. Subsequently, the Secretary filed
a section 105(c)(2) complaint on their behalf and the UMWA intervened on
behalf of complainants. A hearing on the merits was held before Judge
Broderick.
At the hearing, JWR's Brooks testified that section !I.E. of the
Drug Program covered all JWR supervisors, safety and associate safety
inspectors, dust and noise control supervisors, and section and
maintenance foremen. Tr. 65-66. Safety conunitteemen were also
included, he stated, because "they have the highest responsibility for
safety of anybody in the coal mine." Tr. 67. See also Tr. 76, 77.
Brooks estimated that in carrying out safety-related duties, a safety
conunitteeman spent about 50% of his working time engaged in safety
inspections, accompanying MSHA inspectors, and preparing "paper work" in
the safety office. Tr. 72-75. Brooks had no specific knowledge about
drug problems among present conunitteemen but, because of their safetyrelated duties, began randomly testing them. Tr. 83. Under section
!I.E., he eXi>lained, JWR supervisory employees had been tested numerous
times, "almost every month," and the conunitteemen once. Tr. 86. As
part of the testing conunenced on March 2, 1987, urine samples were taken
at the No. 4 Mine from four management safety personnel and the owl
shift safety conunitteeman.
In. his decision, Judge Broderick reviewed the Drug Program and its
implementation, the functions of the safety conunittee, and industry drug
abuse programs. 10 FMSHRC at 898-906. He found initially that Price
and Vacha "had physical or psychological difficulties in providing the
required samples on March 2, 1987, ... [and] did not refuse to submit
the urine samples, but were unable to do so under the circumstances
present on the evening of March 2 at the .•. mine." 10 FMSHRC at 90506. He also examined JWR's motivation in adopting the Drug Program. He
rejected arguments by the Secretary and the UMWA that section !I.E.
}/
Price and Vacha filed grievances over their discharges. On
April 13, 1987, the arbitrator issued an opinion sustaining the
discharges. See 10 FMSHRC at 901-02. As discussed at some length in
Judge Broderick's decision, the judge determined that deference to the
arbitrator's findings and conclusions was not appropriate. See
10 FMSHRC at 910-11.

1525

intentionally targeted UMWA safety committeemen out of hostile or
discriminatory motivation:
There is no evidence that Section !I.E. or any other
part of the plan was motivated in any part by
hostility to safety committee members. I accept Mr.
Brook[s'] testimony that he included safety
committee members in section !I.E. because he
believed that they had such a high degree of
responsibility for safety in the mines.
10 FMSHRC at 904.
Notwithstanding the above finding of nondiscriminatory motivation,
the judge concluded that an operator's policy or program can itself
violate the Mine Act, regardless of the operator's motivation in
adopting the program. 9 FMSHRC at 906, citing Local Union 1110,
UMWA/Robert Carney v. Consolidation Coal Company, 1 FMSHRC 338 (May
1979). According to the judge, enforcement of such a program against a
miner or miners' representative can be prohibited under the Mine Act
irrespective of the operator's motive.. Id.
The Secretary called as witnesses 17 JWR hourly employees who were
or officials of the UMWA. Judge Broderick summarized this
body of testimony as follows:
commit~eemen

The evidence establishes that the miners at JWR
view mandatory drug testing with varying degrees of
hostility: many consider it to be accusatory and
believe that it casts suspicion of drug use on
persons being tested. They look upon the testing
procedures followed by JWR as an invasion of privacy
and an affront to their dignity. Further, some of
the miners have been exposed to news media reports
which cast doubt on the accuracy of the testing
procedures. Thus, they expressed fear that they
might be erroneously branded as drug users. These
suspicions and doubts seem to me to have resulted in
part at least from an inadequate education effort on
the part of JWR, and from the fact that the program
was instituted unilaterally, without the
participation of the unions.
The members and potential members of the mine
safety committee reacted negatively and hostilely to
the provisions of [section] !I.E. which they viewed
as unfairly singling them out for random testing
four times annually. As a result of this reaction,
some committee members have resigned; others have
considered resigning (only one test has been
conducted to date because of the pending
litigation), and further testing may cause further
resignations. Still others have refused to accept
safety committee positions or to run for election to

1526

them.
10 FMSHRC at 907.
The judge then stated:
Based on this review of the evidence, I conclude
that one effect of the drug abuse program has been
to severely limit the independence and therefore the
effectiveness of the committees. This is true
without regard to the motivation of JWR in
instituting the plan.
10 FMSHRC at 907. After discussing the importance of the safety
committees at JWR's mines, the judge concluded that the effect of the
Drug Program was to "diminish" the "rights and responsibilities of the
miners' representatives" and that, therefore, Section.II.E. was
"facially in violation of section lOS(c) of the Act." 10 FMSHRC at 90708. He further determined that the discharge of Price and Vacha
"because they refused to participate in the program" was, accordingly,
in violation of section lOS(c) of the Act. 10 FMSHRC at 908.
Based on his determination that section !I.E. was facially
discriminatory, the judge orde~ed that complainants be permanently
reinstated with back pay and other benefits, that their records be
expunged of references to their discharge, and that JWR cease
enforcement of section !I.E. against safety committee personnel.
10 FMSHRC at 911. In a supplemental remedial decision, the judge
awarded specific sums of back pay with interest and expenses and
assessed a civil penalty of $500. 10 ·FMSHRC at 1109-10.
The judge also proceeded to discuss whether, even if section !I.E.
is not facially discriminatory, it was discriminatorily applied ·to Price
and Vacha because of their activities as safety committeemen. The judge
found that both miners had engaged in protected activity as
committeemen. Specifically, he found that Price and Vacha had the
reputation of being safety activists, "notorious" for filing safety
complaints, and that their numerous safety committee activities were
"clearly protected" by the Act. 10 FMSHRC 903, 909.
The judge concluded that the discharge of Price and Vacha was
motivated in part because of their protected activity as committeemen
and that complainants had established a prima f acie case of
discrimination. 10 FMSHRC at 909-10. However, he went on to conclude
that JWR affirmatively defended by showing that it would have terminated
them in any event for the unprotected activity of failing to provide a
urine specimen.
We granted JWR's subsequent petition for discretionary review,
which essentially raises three assignments of error: (1) the judge erred
in holding that JWR's Drug Program violated section lOS(c) of the Act,
absent proof of any discriminatory motive; (2) the judge erred because
he failed to weigh JWR's legitimate safety concerns against the
purported adverse effects of the Drug Program on safety committeemen;

1527

and (3) Price and Vacha should not be reinstated because they were not
discharged for activities protected by the Mine Act.
In its brief on review, the UMWA replied to the issues raised in
JWR's petition for review and, in Part III of its brief, further argued
that the judge had erred in concluding that the Drug Program was not
discriminatorily applied to Price and Vacha. UMWA Br. 21-27. In
response, JWR filed a motion to strike the latter portion of the UMWA's
brief as being outside the proper scope of Commission review. Both the
UMWA and the Secretary responded in opposition to JWR's motion to
strike.
While this proceeding was pending on review, attorneys
representing JWR in bankruptcy proceedings (different attorneys from
those representing JWR in this proceeding) filed with the Commission a
"Notice of Automatic Stay and Notice of Case under Chapter 11 of the
United States Bankruptcy Code." This summary notice states that JWR, as
a bankruptcy debtor, has filed a petition for reorganization under
Chapter 11 of the United States Bankruptcy Code, 11 U.S.C. § 101 et seg.
(1982) ("Bankruptcy Code"), in the United States Bankruptcy Court for
the Middle District of Florida, Tampa Division, Case No. 89-9715-8Pl.
The notice recites a portion of the automatic stay provision of the
Bankruptcy Code, 11 U.S.C. § 362, and implies that the stay applies to
this discrimination proceeding.
Subsequently, the Commission issued an order directing the parties
to file supplemental memoranda "addressing the question of whether the
automatic stay provision of 11 U.S.C. § 362(a)(l) applies to this·
Commission proceeding, with particular reference to the exceptions
contained in 11 U.S.C. § 362(b)(4) & (5)." The Secretary, the UMWA, and
the attorneys representing JWR in this discrimination proceeding have
filed responses, all arguing that this discrimination proceeding is
excepted from the automatic stay provision of 11 U.S.C. § 362(a)(l).
The attorneys representing JWR in the bankruptcy proceeding did not file
a response to the Commission's order.
II.

Disposition of Issues
A.

JWR's motion to strike and effect of bankruptcy proceedings

We address first the threshold matters of JWR's motion to strike a
portion of the UMWA brief and the effect, if any, of JWR's pending
bankruptcy petition on this Commission proceeding. With respect to the
motion to strike, under the Mine Act "[a]ny person adversely affected or
aggrieved" by a decision of a Commission administrative law judge may
file with the Commission a petition for discretionary review of the
judge's decision. 30 U.S.C. §§ 823(d)(2)(A)(i)-(iii). See also
Commission Procedural Rule 70(a), 29 C.F .R. § 2700. 70(a)-.-In general,
once such a petition is granted, Commission review is limited to the
questions raised by the petition, unless pursuant to the provisions of
the Act, the Commission, ~ sponte, has directed review of other
issues. 30 U.S.C. §§ 823(d)(2)(A)(iii), (B), & (C). See also

1528

Commission Procedural P·1les 70(f) & 71, 29 C.F .R. §§ 2700. 70(f) & 71.
Here, the Secretary and the UMWA obtained below a favorable judgment
awarding complainants the remedial relief sought. Therefore, it is not
surprising that, as the prevailing parties, they did not file a petition
for discretionary review in this matter objecting to those findings and
conclusions of the judge that rejected certain of their positions.
After JWR filed its petition for review, the Secretary and UMWA
were not compelled to file cross-petitions for review in order to
preserve their right to raise on review certain objections to other
portions of the judge's decision. Rather, adopting the general federal
rule of appeal, we hold that, in such circumstances, the 11 appellee 11 may
urge in support of the judgment below any matter or issue appearing in
the record, even if it involves an objection to some aspect of the
judge's reasoning or issue resolution, so long as the appellee does not
seek to attack the judgment itself or to enlarge its rights thereunder,
in which case it would be obliged to file a cross-petition for
discretionary review. See, ~· Dandridge v. Williams, 397 U.S. 471,
475-76 n.6 (1970); United States v. American Ry. Exp. Co., 265 U.S. 425,
435-36 (1924); Freeman v. B&B Assoc., 790 F.2d 145, 151 (D.C. Cir.
1986). The UMWA's attack in Part III of its brief on the judge's
resolution of the issue involving application of the Drug Program to
Price and Vacha is based on matters in the record, is not inconsistent
with the judgment of discrimination rendered below and does not seek any
greater relief than already granted. Accordingly, upon consideration of
JWR's motion to strike and the responses thereto, we deny JWR's motion.
Concerning the effect of the bankruptcy proceeding, we concur with
the parties that this matter falls within the exceptions to the
automatic stay provisions of the Bankruptcy Code. As a preliminary
matter, we hold that we possess jurisdiction in this proceeding to
determine tne effect, if any, of the bankruptcy matter on continuation
of this proceeding. See,~· Brock v. Morysville Body Wks., Inc., 829
F.2d 383, 385-87 (3rd Cir. 1987); NLRB v. Edward Cooper Painting, Inc.,
804 F.2d 934, 938-39 (6th Cir. 1986).
As pertinent here, section 362 of the Bankruptcy Code provides:
Except as provided in subsection (b) of this
section, a petition filed under section 301 •.. of
this title ..• operates as a stay, applicable to all
entities, of-(1) the commencement or continuation, including
the issuance or employment of process, of judicial,
administrative, or other action or proceeding
against the debtor that was or could have been
commenced before the commencement of the case under
this title, or to recover a claim against the debtor
that arose before the commencement of the case under
this title; (2) the enforcement, against the debtor
or against property of the estate, of a judgment
obtained before the commencement of the case under
this title ••••

1529

*

*

*

(b) The filing of a petition under section 301
of this title
does not operate as a stay --

*

*

*

(4) under subsection (a)(l) of this section, of
the commencement or continuation of an action or
proceeding by a governmental unit to enforce such
governmental unit's police or regulatory power;
(5) under section (a)(2) of this section, of the
enforcement of a judgment, other than a money
judgment, obtained in an action or proceeding by a
governmental unit to enforce such governmental
unit's police or regulatory power .••.
11 U.S.C. § 362(a) & (b).
The term "governmental unit" is defined in the Bankruptcy Code, in
relevant part, as the "United States; ••. department, agency, or
instrumentality of the United States •... " 11 U.S.C. § 101(?6). There
is no question that the Secretary, Department of Labor, and Mine Safety
and Health Administration are all "governmental units" within the
meaning of the Bankruptcy Code. Cf. Edward Cooper Painting, 804 F.2d at
942; NLRB v. Evans Plumbing Co., 639 F.2d 291, 293 (5th Cir.
1981)(concluding that NLRB is a "governmental unit").
The present case was brought by the government, through the
Secretary, to effectuate and protect the rights secured by section
105(c)(l) of the Mine Act. This is the kind of "police or regulatory"
action covered by the exception to the automatic stay. Cf. EEOC v. Rath
Packing Co., 787 F.2d 318, 323 (8th Cir. 1986). See als~Mor~sville
Body Wks., 829 F.2d at 388; Edward Cooper Painting, 804 F.2d at 942;
Secretary on behalf of George W. Heiney & John Ghramm v. Leon's Coal
Co., 4 FMSHRC 572, 574-75 (April 1982)(ALJ). Accordingly, we conclude
that the present proceeding is not subject to the automatic stay
provisions of section 362(a)(l).
Section 362(b)(5) also excepts from automatic stay "enforcement of
a judgment, other than a money judgment, obtained in an action or
proceeding by a governmental unit to enforce such governmental unit's
police or regulatory power •.•• " (Emphasis added.) The courts have
recognized that adjudicatory bodies presiding over a governmental
"police or regulatory" action may enter a money judgment against a
respondent-debtor but may not permit collection of that pecuniary
judgment in an enforcement action • .!:..s..:_, Morysville Body Wks., 829 F.2d
at 389; Edward Cooper Painting, 804 F.2d at 942-43; Rath Packing, 787
F.2d at 325-27. See also H.R. No. 595, 95th Cong., 1st Sess. 343
(1977), reprinted in 1978 U.S. Code Cong. & Ad. News 5963, 6299. Here,
were a finding of JWR's liability ultimately made, judgment could be
entered "to fix damages for violation of the law." The enforceability
of such a judgment is a matter for other forums.

1530

For the foregoing reasons, we proceed to a disposit~~n of this
case.
B.
Is section !I.E. of JWR's Drug Program Facially
Discriminatory?
The general principles applicable to analysis of discrimination
issues under the Mine Act are settled. In order to establish a prima
facie case of discrimination under section 105(c) of the Act, a
complaining miner bears the burden of production and proof in
establishing that (1) he engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that protected
activity. Secretary on behalf of Pasula v. Consolidation Coal Co.,
2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981);
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC
817-18 (April 1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the adverse
action was not motivated in any part by protected activity. If-an
operator cannot rebut the prima facie case in this manner, it
nevertheless may defend affirmatively by proving that it also was
motivated by the miner's unprotected activity and would have taken the
adverse action in any event for the unprotected activity alone. Pasula,
supra; Robinette, supra. See also, ~, Eastern Assoc. Coal Corp. v.
FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Construction Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Baich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the
Commission's Pasula-Robinette test). Cf. NLRB v. Transportation
Management Corp., 462 U.S. 393, 397-413 (1983)(approving nearly
identical test under National Labor Relations Act).
This is the first discrimination case before the full Commission
that involves issues of workplace substance abuse programs and we begin
by placing that subject in perspective under the Mine Act.
Nothing in the Mine Act bars a mine operator from adopting a
substance abuse control program. The problem of drug abuse in society
and the effects of that problem on the workplace are well documented.
As the judge noted:
On September 15, 1986, the President of the United
States issued an Executive Order, entitled Drug-Free
Federal Workplace, in which he stated that "[D]rug
use is having serious adverse effects upon a
significant proportion of the national work force
and results in billions of dollars of lost
productivity each year." The Senate Commerce
Committee in Senate Report 100-43, lOOth Cong. 1st
Sess., to accompany S. 1041 filed April 10, 1987,
found that "Drug and alcohol abuse has become an
increasing problem in the workplace. Substance
abuse leads to impaired memory, lethargy, reduced
coordination, and a whole series of changes in
heart, brain, and lung functions. These symptoms in

1531

workers have resulted in lost productivity for
American businesses of as much as $100 billion a
year, with significant increases in employee
accident rates, health care costs, and absenteeism."
10 FMSHRC at 903. Indeed, in the context of the mining occupation,
adoption of a reasonable substance abuse program could advance the
safety and health goals of the Mine Act. We note also the Secretary's
statement that she·"is not contending that substance abuse programs are
per se unlawful or discriminatory" under the Act and that she "supports
the goal of a drug free work place." Sec. Br. 1 & n. 1.
We emphasize, however, that the Commission's jurisdiction to
entertain and resolve disputes involving substance abuse programs is
limited. As we previously observed: "[T]he Commission does not sit as a
super grievance board to judge the industrial merits, fairness,
reasonableness, or wisdom of JWR's [Drug Program] apart from the scope
and focus appropriate to analysis under section lOS(c) of the Mine Act."
9 FMSHRC at 1307. Our limited purpose is to focus simply on whether the
Drug Program or enforcement of some component thereof conflicts with
rights protected by the Mine Act.
The judge found section ILE. of the Drug Program to be "facially
discriminatory" because it "singled out" safety committeemen from JWR's
other hourly employees for mandatory drug testing and because of the
reaction of safety committeemen and potential safety committeemen to the
program, which limited the safety committees' effectiveness. We
disagree with the judge that JWR's Drug Program is facially in violation
of section lOS(c) of the Mine Act.
The Mine Act broadly defines "miner" as "any individual working in
a coal or other mine .... " 30 U.S.C. § 802(g) (emphasis added).!±_/
Section II. E. of the Drug Progr·am applies to a portion of JWR' s
"miners"; some were salaried or supervisory employees, and some were
hourly, nonsupervisory employees -- all are "miners" under the Mine Act.
Therefore, the safety committeemen were not the only "miners" subject to
mandatory testing under JWR 1 s Drug Program. Stated otherwise, safety
committeemen were not "singled out" from all other "miners" at JWR's
mines.
The Secretary and the UMWA imply that the inclusion of safety
committeemen, alone among JWR's hourly employees, evidences
discrimination against them. Not every classification or difference in
the treatment of employees, however, amounts to illegal "discrimination," especially where there is sufficient lawful reason for the
challenged distinction. We hold that, on this record, JWR advanced
adequate and reasonable business justification for including safety
committeemen, along with the other employees whose job duties involved
!!_/
It is to be noted that the safety committeemen at JWR's mines
derive their offices, not from the Act or the Secretary's implementing
standards and regulations, but wholly from the parties' private
contractual agreement.

1532

safety matters·, in tr. .; pool of miners subject to the drug testing
provisions of section !I.E. The evidence clearly shows that section
!I.E. was targeted at miners whose duties have a substantial impact on
miner safety. The evidence further reflects, and the judge so found,
that JWR genuinely believes that a substance abuse problem existed among
its employees, that the effects of any such abuse are most dangerously
manifested in job functions involving safety, that section !I.E. is
designed to address this situation, and that it was adopted for nondiscriminatory reasons.
There is no dispute that the safety committeemen spent up to 50%
of their time engaged in safety matters. Brooks testified that safety
committeemen had "the highest responsibility for safety of anybody in
the coal mine. 11 Tr. 67. It may be true that other hourly job
classifications also have a substantial impact on miner safety. Indeed,
from a general perspective, all miners' work activities affect safety.
Given that a mine operator may adopt a substance abuse program, however,
section 105(c) cannot be read as compelling mandatory drug testing of
all miners because testing is to be a part of the program. Absent a
showing of discriminatory motivation, nothing in section 105(c)
precludes an operator from proceeding in a gradual, incremental, or
limited manner, by first targeting for drug testing certain job
classifications that are viewed in good faith as being the most safety
sensitive positions. Stated otherwise, an operator is not required by
the Mine Act to remedy all aspects of a perceived substance abuse
problem or none at all. Cf., ~' Fisher v. Secretary, 522 F.2d 493,
500, 502 (7th Cir. 1975).
We accept the judge's characterization of the testimony of the
safety committeemen as showing that many committeemen opposed and
disliked implementation of section !I.E. However, a miner's opposition
or hostility to an operator's business policy is not determinative of
the validity of that policy under section 105(c) of the Mine Act. An
adverse action under section 105(c) of the Mine Act is not simply any
operator action that a miner does not like. Secretary on behalf of
Chester Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842, 1848 n. 2
(August 1984). The personal feelings of opposition and hostility to
section !I.E. held by safety committeeman, as found by the judge, are
insufficient to establish that section !I.E. was discriminatory. Again,
we note that the burdens imposed by section II.E fell equally on JWR's
supervisory staff.
Thus, we find that substantial evidence and applicable legal
principles do not support the judge's determination that section !I.E.
was facially discriminatory. Accordingly, we reverse the judge's
finding of a violation of section 105(c) under the theory of facial
discrimination.
C.
The application of section !I.E. of JWR's Drug Program to
complainants
The judge concluded that section !I.E. of JWR's Drug Program had
not been discriminatorily applied to Price and Vacha. The judge's
findings that Price and Vacha had engaged in protected activities and

1533

that their termination was motivated, at le··~t in part, by their
protected activities are supported by substantial evidence and are
consistent with controlling precedent. Accordingly, we affirm the
judge's conclusion that Price and Vacha established a prima facie case
of discriminatory discharge.
The judge also found that, although the complainants had made out
a prima facie case of discriminatory discharge, JWR had defended
affirmatively by showing that it would have fired them in any event for
the unprotected activity alone of failing to provide the requested urine
specimens. 10.FMSHRC at 909-910. As explained above, an operator
proves an affirmative defense pursuant to the Pasula-Robinette test if
it shows that (1) it was also motivated by the miner's unprotected
activities, and (2) would have taken the adverse action in any event for
the unprotected activities alone. As we have explained:
[T]he 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
justifications, but rather only to determine whether
they are credible and, if so, whether they would
have motivated the particular operator as claimed.
Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). As a
corollary to these principles, it follows that an operator does not
establish a Pasula-Robinette affirmative defense if a work rule or
policy that the miner is alleged to have violated, was applied
discriminatorily to the miner or in a manner deliberately calculated to
render his compliance difficult or impossible. In such cases, the
claimed •iindependent" basis for discipline is actually an extension of
the operator's discriminatory conduct. Further, pretext may be found,
for example, where the asserted justification is weak, implausible, or
out of line with the operator's normal business practices. ~' Haro,
supra, 4 FMSHRC at 1937-38. Ultimately, the operator must show that the
justification is credible and would have legitimately moved it to take
the adverse action in question. ~' Haro, 4 FMSHRC at 1938. Here,
the judge has entered a number of findings, not fully explained in his
analysis of JWR's affirmative defense, that raise these issues.
The judge found that prior to the attempted urine sampling at
issue, both Price and Vacha had been subjected to supervisory "joking"
concerning their future testing:
Prior to March 2, there was considerable discussion
and joking about the program among union employees
and management officials. In the subject mine, much
of the joking was directed at Price. In

1534

November 1986, Price told Wyatt Andrews, the mine
safety inspector and Bob Hendricks, associate safety
inspector that he had difficulty urinating in front
of others. Hendricks laughed and made a vulgar
remark to Price. In later November or early
December a urine specimen bottle was exhibited on
Wyatt Andrews' desk with a label on it reading "Mike
Price UMWA." Andrews laughed when Price saw the
bottle. It remained in the safety office for at
least two days before Rayford Kelly directed that it
be removed. Andrews and another safety inspector
had on two occasions jokingly thrust an empty ...
cannister and an empty coca cola toward Price and
Vacha telling them that they were practice piss
cups. Later a styrofoam cup with Price's name and
the notation "practice cup" written on it was
displayed in the safety office. All these incidents
took place prior to March 2, 1987.
10 FMSHRC at 900. The judge also determined that the complainants did
not refuse to submit urine specimens on March 2 but had genuine
"physical or psychological difficulties" in providing the requested
samples. 10 FMSHRC at 904-06. He further noted that Price and Vacha
had drug screening tests performed at the Emergicare Center (JWR's
contract physicians) and at the Longview Hospital, respectively, the
next day and submitted the results, which were negative, to JWR.
10 FMSHRC at 901. The judge stated that Price and Vacha "were unable"
to provide urine samples "under the circumstances present on the evening
of March 2 at the subject mine." 10 FMSHRC at 906.
At the other JWR mines, the Industrial Relations supervisor
oversaw the urine sampling; at the No. 4 Mine, the supervision of urine
collection was delegated to Andrews and Hendricks. 10 FMSHRC at 909.
Thus, the actual testing of Price and Vacha was carried out by those who
had made the earlier jokes, i.e., Andrews and Hendricks. Id.
In some of the mines, those supervising the
collection did not go into the bathroom with those
giving the samples. No accommodation was offered
Price and Vacha when they claimed inability to
produce urine specimens, though some accommodation
was given others involved in the drug screening
program.
10 FMSHRC at 909. Similarly, in its brief on review, the UMWA points to
evidence in the record showing that the manner of testing Price and
Vacha was different from the testing procedures followed at other mines,
that JWR accommodated other miners who.experienced difficulty urinating
on demand, and that similar discipline was not meted out to those other
miners. UMWA Br. 24-25.
We find that the judge did not fully examine and explain, in the
context of ruling on JWR's affirmative defense, the impact of the
evidence summarized above. If, in fact, Price and Vacha were fired for

1535

failing t~ comply with discriminatorily applied drug testing procedures
or if those procedures were deliberately manipulated to contribute to
such failure, a Fasula-Robinette affirmative defense based on those same
procedures cannot stand. In other words, a discharge for failure to~~
comply with a discriminatorily implemented work order would not satisfy
the affirmative defense requirements of Commission precedent.
Based on the above concerns, we remand this matter to the judge
for the narrow purpose of analyzing and explaining the impact of the
evidence discussed above on JWR's attempt to establish an affirmative
defense. On remand, the judge shall provide all parties with the
opportunity to brief the merits of the issues being remanded.

1536

IV.
Conclusion
For the foregoing reasons, we reverse the judge's conclusion that
section II.E. of JWR's Drug Program is facially discriminatory in
violation of section lOS(c) of the Mine Act. With respect to the
application of the Drug Program to Price and Vacha, we vacate that
portion of the judge's decision in which he concluded that JWR
affirmatively defended against the prima f acie case of discrimination
established by the complainants. We return this case to the judge for
further findings and analysis on that subject as explained above.
Accordingly, this matter is remanded for further proceedings consistent
with this opinion.

L. Clair Nelson, Commissioner

1537

Commissioner Lastowka, concurring in part and dissenting in part:
I agree with my colleagues that this matter falls within the exceptions
to the automatic stay provisions of the Bankruptcy Code and that the Commission
may therefore proceed to a disposition of the proceeding before us. I also
concur fully in the conclusion, and the rationale in support thereof, that
Section II. E. of JWR's Drug Program is not facially violative of section 105(c)
of the Mine Act.
I must respectfully dissent, however, from the majority's
denial of JWR' s motion to strike that part of intervenor UMWA' s brief challenging
the judge's conclusion that the specific application of JWR's Drug Program to
Price and Vacha did not violate section 105(c). As explained below, JWR's motion
to strike is well-founded and should be granted. As further explained, I would
remand to the administrative law judge for entry of a final, appealable order
concerning the specific application of the drug program.
The statutory procedure governing the raising of issues in review
proceedings before the Commission is specific and express. Under section 113(d)
of the Mine Act "any person adversely affected or aggrieved" by a decision of
a Commission administrative law judge may petition the Commission for
discretionary review of the judge's decision. 30 U.S.C. § 823(d)(2)(A)(i); 29
C.F.R. § 2700.70(a). If such a petition for discretionary review is granted,
the Commi$sion' s review authority is limited to the issues raised in the
petition. 30 U.S.C § 823(d)(2)(A)(iii); 29 C.F.R. § 2.700.70(f); Chaney Creek
Coal Corp. v. FMSHRC, 866 F.2d 1424, 1429 (D.C. Cir. 1989); Secretary v. PhelpsDodge Corp., 709 F.2d 51 (D.C.Cir 1983). Additional issues can be considered
only if the Commission sua sponte directs such other issues for review within
30 days of the administrative law judge's decision. Chaney Creek; Phelps-Dodge;
30 U.S.C. § 823(d)(2)(B); 29 C.F.R. § 2700.71.
Based on this statutory review scheme, JWR has filed a motion to strike
a portion of intervenor UMWA' s brief. JWR emphasizes that its petition for
discretionary review was the sole petition for review filed, and that its
petition challenged only the administrative law judge's conclusion that Section
II.E. of JWR's Drug Program is facially discriminatory. JWR further notes that
neither the Secretary nor intervenor UMWA petitioned the Commission to review
the judge's conclusion that JWR's specific application of the drug program to
Price and Vacha did not violate section 105 ( c). Nor did the Commission sua
sponte direct any additional issues for review pursuant to section 113(d)(2)(B).
Therefore, according to JWR, that portion of the UMWA's response brief arguing
that the judge erred in concluding that the drug program was not discriminatorily
applied raises an issue that was not brought before the Commission in accordance
with the governing statutory review scheme.
In opposition to JWR's motion to strike, the UMWA and the Secretary make
essentially the same arguments. They note that Price and Vacha prevailed on
their claim that Section II.E. is facially discriminatory. As a result, they
assert that Price and Vacha were awarded the full measure of the relief they
sought including reinstatement, back pay, expungement of personnel files and the
cessation of enforcement of Section !I.E. against safety committeemen.
Therefore, the Secretary and the UMWA submit, Price and Vacha were not "adversely
affected or aggrieved" by the judge's decision within the meaning of section
113(d), and they lacked standing to appeal the judge's denial of the "as applied"

153'8

theory of discrimination.
The Secretary and the UMWA further assert that the UMWA's brief properly
challenges the judge's findings and conclusions addressing whether Section II.E.
was discriminatorily applied to Price and Vacha. They argue that under settled
principles of appellate review a party "may offer in support of his judgment any
argument that is supported by the record, whether it was ignored by the court
below or flatly r~jected."
Sec. Response at 5, citing 9 Moore's Federal
Practice, § 204.11 [3] at 4-45; UMWA Response at 4-5. They submit that the
argument in the l!MWA's response brief challenging the judge's "as applied"
findings simply offers the Commission an allowable alternative ground for
affirmance of the judge's decision in favor of Price and Vacha. My colleagues
in the majority embrace this theory, "adopting the general federal rule of
appeal." Slip op. at 9.
I disagree. As I read section 113(d) of the Mine Act, JWR's motion to
strike must be granted. Were the Commission operating within a more traditional
appellate review scheme, I would have little hesitation in proceeding to address
the additional issue raised in the UMWA's brief. Under the federal rules of
procedure and the case law relied on by the Secretary and the UMWA, the filing
of a cross-appeal, or the urging of other error the correction of which offers
an additional basis for affirmance, would be appropriate vehicles for expanding
the scope of the issues on appeal.
The problem, however, is that the
Commission's review authority differs substantially from that found in the
typical appellate review model. The unique statutory review scheme set forth
in section 113(d) of the Mine Act more closely constrains the Commission's review
authority. Parties are not free to raise and the Commission is not free to
consider issues that have not been directed for review pursuant to section
113(d). 30 U.S.C. § 823(d); Chaney Creek Coal Corp., supra; Phelps-Dodge Corp.,
supra.
I cannot accept the Secretary's and the UMWA's explanation that they are
not seeking to have the Commission resolve an "additional" issue, but are
offering only an alternative ground in support of the ,Judge's finding of
discrimination. Although the "facially violative" and "as applied" theories were
both offered to prove that Price and Vacha had been discriminated against under
section 105(c)(l), the material facts and relevant law bearing on these theories
of discrimination are quite separate and distinct.
In its petition for
discretionary review JWR challenged only the judge's findings and conclusions
bearing on the "facially violative" theory. To nevertheless proceed to review
the correctness of the judge's discussion concerning the "as applied" theory,
as tempting as it may be in terms of appellate convenience, is to ignore the
constraints of section 113(d). In this regard it is important to note that JWR
has identified some of its own disagreements with the judge's discussion
concerning the specific application of the drug program to Price and Vacha, but
JWR correctly acknowledges that these disagreements were not placed before the
Commission through its petition for review. JWR Motion to Strike at 5.
For these reasons I would grant JWR' s motion to strike Part II I of
intervenor UMWA's brief.

1539

In my view, however, granting the motion to strike would not end the
Commission's deliberations concerning the procedural consequences of the judge's
statement that the specific application of the drug program to Price and Vacha
did not violate section 105(c) of the Mine Act. In its motion to strike JWR
asserts that Price and Vacha were "adversely affected or aggrieved" within the
meaning of section 113(d) by the discussion of the "as applied" theory of
discrimination contained in the judge's decision.
The implication of JWR's
argument is that, because Price and Vacha did not petition for review of the
judge's "as applied" discussion, the judge's conclusions in that regard are final
and unreviewable. 30 U.S.C. § 823(d)(1).
The Secretary and the UMWA counter by arguing that Price and Vacha were
not "adversely affected or aggrieved" because, in prevailing on their "facially
violative" theory, they had been awarded all of the relief they had sought.
They assert that Price and Vacha were fully satisfied by the judge's award, were
not injured thereby, and therefore lacked standing under section 113(d) to obtain
review of the judge's decision. Sec. Response at 33-4; UMWA Response at 5-6.
I agree.
In the posture of the proceeding before us, the portion of the judge's
decision denying Price and Vacha' s "as applied" theory of recovery did not
constitute a final, adverse disposition against Price and Vacha within the
meaning of section 113(d) of the Mine Act. The conclusive, determinative holding
by the judge was his conclusion that Price and Vacha had been disc;:riminated
against by JWR in violation of section 105(c). It was this holding that formed
the basis for his award of remedial relief to Price and Vacha and that caused
a party, JWR, to be "adversely affected or aggrieved". In the absence of any
appeal of the judge's decision, only JWR, not Price and Vacha, would have been
damaged as a result of the judge's decision. The judge's further discussion
indicating that he would deny the alternative theory of recovery was not
essential to his finding of liability and , was unnecess~ry.
Therefore, the
judge's comments in this regard did not adversely affect or aggrieve Price and
Vacha within the meaning of section 113(d). 1

1

As has been stated:
[T]he general rule is that a party who has obtained full
relief in the court below on a particular theory or
ground is not entitled to appeal from the judgment to
procure relief on other theories or grounds advanced by
him below.

Annotation, Right of Winning Party to Appeal from Judgment Granting him Full
Relief Sought, 69 A.L.R. 2d 701, 736-37 (1960). See also 4 Am. Jur. 2d Appeal
and Error§ 185 (1962).

1540

Accordingly, I would remand this proceeding to the administrative law
judge for entry of a final dispositional order concerning the "as applied" theory
of discrimination advanced by Price and Vacha. I would direct the judge to allow
the parties the opportunity to make any additional arguments either in opposition
to or in support of the discussion of the "as' applied" theory of discrimination
set forth in his prior decision. Any party adversely affected or aggrieved by
the entry of the judge's final order on remand could then petition the Commission
for review of this aspect of his decision.
For these reasons, I concur in part and dissent in part.

James A. Lastowka
Commissioner

1541

Chairman Ford, concurring in part and dissenting in part:
I join with my colleagues in reversing the judge's determination
that Jim Walter Resources' Drug Program is discriminatory on its face
and violative of section lOS(c) of the Mine Act, 30 U.S.C. § 815(c). As
to the automatic stay provisions of the Bankruptcy Code and the
exceptions thereto, I further concur that the instant proceeding falls
within the exceptions set forth in section 362(b) of the Code, 11 U.S.C.
§ 362(b).
With respect to the majority's disposition of JWR's motion to
strike Part III of the UMWA's reply brief, I am constrained to
reluctantly and respectfully dissent in view of the tightly
circumscribed scope of Commission review set forth in section 113(d)(2)
of the Mine Act, 30 U.S.C. 823(d)(2).
Although general federal appellate procedure may permit an
appellee to offer alternative grounds to support an ultimate judgment even those rejected by the judge below - the Mine Act by its clear terms
constricts that option here. Section 113(d)(2) of the Act states that
"review shall be limited to the questions raised by the petition" and
that "the Commission shall not raise or consider additional issues in
such review proceedings" unless it has complied with the proc~dures and
criteria for granting~ sponte review. (Emphasis added). The issue
of whether JWR's Drug Program was discriminatorily applied to Price and
Vacha was not raised in JWR's petition for discretionary review, nor was
it directed for review ~ sponte. It arose solely as a component of
the UMWA's reply brief filed well outside the 30 day time limit for
filing petitions under the Act.
The UMWA and the Secretary argue that they were not "adversely
affected or aggrieved by [the] decision" of the judge so that there was
no reason for them to file a petition for discretionary review. There
is, however, a distinction here between a "judgment", i.e., a favorable
outcome for the appellees, and the "decision" itself, and it is the term
"decision" to which section 113(d)(2) refers. In this instance the
judge's decision is composed of two distinct parts, each involving
separate allegations of discriminatory treatment, separate legal
theories to support those allegations, and separate modes of analysis to
resolve the issues raised. Indeed, one might argue that within the
single docket the judge was deciding two discrete cases: one generic
case brought in the names of Price and Vacha on behalf of all safety
committeemen against the Drug Program as designed (the "facially
discriminatory" case), and one brought exclusively by Price and Vacha
and involving only their particular relationship to and interaction with
JWR and its Drug Program (the "discriminatorily applied" case). In that
context it cannot be said that the judge's decision with respect to the
latter case was not adverse to Price and Vacha. ~/
~/
The two matters were even tried somewhat separately. Price and
Vacha did not testify at the hearing on the merits. Testimony at that
hearing on behalf of the Secretary and the UMWA was predominately
provided by safety committee members or potential members who were not
disciplined but who testified to the inhibitive effects of the Drug

1542

Appellees also object ,.u practical grounds to the filing of
"protective" petitions for discretionary review by prevailing parties,
characterizing such a requirement as "meaningless", "cumbersome," and
"nonsensical." Given the time and treasure expended in this case, the
odds of JWR's appealing the "facially discriminatory" is~so as to
place the judge's determination thereon at risk were extremely high. In
such circumstances a protective petition for discretionary review would
not have been meaningless but would have been prudent. Furthermore, the
judge's decision was issued on August 26, 1988 and JWR's petition was
filed on September 20, 1988, thus leaving the Secretary, the UMWA, or
both five days to file a pro forma petition on the "discriminatorily
applied" issue. In any event, the procedural fault at issue lies with
the restrictive review scheme devised by Congress and both the
Commission and the parties are bound by it.
In summary, Part III of the UMWA's brief raises important issues
and compelling arguments. Unfortunately, at this juncture, I find no
means by which the Commission can resurrect the "discriminatorily
applied" charge when the statute limits our consideration to those
issues contained within the four corners of the only petition for
discretionary review before us. Chaney Creek Coal Corp. v. FMSHRC, 866
F.2d 1424, 1429 (D.C. Cir. 1989).
Accordingly, I would grant the motion to strike and dismiss the
proceeding.

Program generally and its impact upon their decisions to continue
serving as committeemen or to run for committee office. That testimony
went only to the "facially discriminatory" issue. The "discriminatorily
applied" issue was tried in the June 29, 1987 hearing on temporary
reinstatement wherein Price and Vacha testified to the specific
circumstances under which they were subjected to random drug testing
under the Drug Program, their history of activism as safety
committeemen, and their perceptions of a retaliatory link between the
two. Secretary/Price and Vacha v. Jim Walter Resources, Inc., 9 FMSHRC
1305 (August 1987).

1543

Distribution
John W. Hargrove, Esq.
Bradley, Arant, Rose & White
1400 Park Place Tower
Birmingham, Alabama 35203
Colleer. A. Geraghty, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Mary Lu Jordan, Esq.
UMWA
900 15th St., N.W.
Washington, D.C. 20005
Don M. Stichter, Esq.
Stichter & Reidel, P.A.
100 Madison Street
Tampa, Florida 33602
Edward LoBello, Esq.
Levin, Weintrauo & Grames
225 Broadway
New York, New York 10007
Patrick K. Nakamura, Esq.
Longshore, Nakamura & Quinn
2101 City Federal Bldg.
Birmingham, Alabama 35203
Administrative Law Judge James A. Broderick
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1544

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

August 22, 1990
SECRETARY OF. LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket Nos. WEST 86-113-R
WEST 86-114-R
WEST 86-245-(A)

WESTERN FUELS-UTAH, INC.

BEFORE:

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

ORDER

BY THE COMMISSION:
This consolidated contest and civil penalty proceeding arising
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seg. (1988)("Mine Act" or "Act"), is before us on remand from an opinion
of the United States Court of Appeals for the District of Columbia
Circuit reversing our prior decision in this matter. Secretary of Labor
v. Western Fuels-Utah, Inc., & FMSHRC, 900 F.2d 318 (1990), rev'g,
Jl FMSHRC 278 (March 1989). At issue is whether supervisors who meet
the training certification requirements for supervisory personnel under
a state program approved by the Depa~tment of Labor's Mine Safety and
Health Administration ("MSHA") must be given task training prior to
performing work for which non-supervisory miners would be required to
have task training.
MSHA cited Western Fuels-Utah, Inc. ("Western Fuels") for a
violation of section llS(a) of the Mine Act, 30 U.S.C. § 825(a), and
JO C.F.R. § 48.7 for failing to task train one of its section foremen in
the operation of a roof-bolting machine prior to his using that machine.
Section 115(a)(4) of the Act and section 48.7 of the Secretary of
Labor's implementing regulations require task training for "miners"; as
relevant, 30 C.F.R. § 48.2(a)(l)(ii) excludes from the definition of
"miners" subject to such task training "[s]upervisory personnel subject
to MSHA approved State certification requirements." In proceedings
before Conunission Administrative Law Judge Roy J. Maurer, Western Fuels
argued that the foreman in question was exempt from the task training
requirements pursuant to the plain language of the exclusion in section
48.2(a)(l)(ii), supra. Accepting the Secretary's construction of the

1545

applicable regulations, Judge Maurer concluded that task training of the
foreman was required because the supervisory exemption applies only to a
supervisor actually and primarily engaged in supervision and not to one
engaged in the extraction and production process. The judge concluded
that Western Fuels had violated the cited provisions of the Act and
regulations and assessed a civil penalty of $180. 9 FMSHRC 1355
(August 1987)(ALJ). We granted Western Fuels' petition for
discretionary review, which was limited to the issue of whether the
judge erred in his i~terpretation of the meaning of the supervisory
exemption.
In our prior decision, we disagreed with the judge. We held that
the language of section 48.2(a)(l)(ii) "means what it says, that
supervisory personnel subject to MSHA approved State certification
requirements are exempt from the [relevant] training ... requirements."
11 FMSHRC at 282. We determined: "The exclusion of 'supervisory
personnel' from the definition of ['miners' subject to the training
requirements in issue] has a plain meaning apparent from any reasonable
reading of the regulation. '[S]upervisory personnel' means individuals
who are supervisors. Supervisors are persons having authority delegated
by an employer to supervise others." 11 FMSHRC at 283. Because it was
undisputed that the foreman in question was a mine foreman certified
under an MSHA approved State program, it followed that he was exempt
from the cited training requirements. In reaching this conclusion, we
rejected the Secretary's interpretation of section 48.2(a)(l)(ii), which
we found flatly contradicted by the plain and unambiguous language of
the regulation. 11 FMSHRC at 284-87.
The Secretary appealed our decision. In a 2-1 opinion, the D.C.
Circuit reversed. The Court subscribed to the Secretary's
interpretation of the regulation. The Court held that the supervisory
exemption applies only to the extent that a supervisor is actually
engaged in the act of supervising and does not apply once the person
diverts from supervision to actual operation of mining equipment.
Western Fuels-Utah, supra, 900 F.2d at 320-23. The Court stressed its
belief that its deference to the Secretary's position was required as a
matter of law. 900 F.2d at 321, 323. We note the observation of
dissenting Circuit Judge Edwards that "[t]he Secretary of Labor •..
seeks to overturn the judgment of the Commission because, to put it
starkly, the regulation should not be held to mean what it says." 900
F.2d at 323 (Edwards, J., dissenting).

1546

We are obliged to conform to the judgment of the Court in this
matter. No other issue remains for disposition in this proceeding.
Accordingly, the judge's decision and assessment of civil penalty are
reinstated. "!:.../

Richard V. Backley, Conunissio

g~le~~. .1.#
A.

~/~

L. Clair Nelson, Conunissioner

*/
The Conunission contacted both parties administratively and
determined that neither party wished to be further heard on remand.

1547

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

August 23, 1990

UNITED MINE WORKERS OF AMERICA,
LOCAL UNION 1769,
DISTRICT 22
v.

Docket No. WEST 87-86-C

UTAH POWER AND LIGHT COMPANY,
MINING DIVISION

BEFORE:

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

DECISION

BY:

Backley, Lastowka and Nelson, Commissioners

This compensation proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act").
Commission Administrative Law J~dge John J. Morris granted the motion of
Utah Power and Light Company ( 11 UP&L 11 ) to dismiss this proceeding after a
settlement agreement was executed by UP&L and the United Mine Workers of
America ("UMWA" or "Union"). 11 FMSHRC 1641 (ALJ)(September 1989). We
granted the UMWA's petition for discretionary review. The principal
issue presented on review is whether the judge erred in granting UP&L's
motion to dismiss. For the reasons that follow, we affirm the judge's
decision.
I.

The UMWA sought compensation from UP&L, on behalf of miners
belonging to its Local Union 1769, District 22 ("Local Union"), pursuant
to the third sentence of section 111 of the Mine Act. l/ The members of

ll

Section 111 provides in part as follows:
[1) If a coal or other mine or area of such mine is
closed by an order issued under section 103, section
104, or section 107 all miners working during the
shift when such an order was issued who are idled by
such order shall be entitled, regardless of the

1548

the Local Union are employed by UP&L at its Deer Creek Mine located near
Price, Utah.
At 12:30 p.m., on November 3, 1986, an inspector of the Department
of Labor's Mine Safety and Health Administration ("MSHA") issued an
imminent danger withdrawal order at the Deer Creek Mine pursuant to
section 107(a) of the Mine Act. 30 U.S.C. § 817(a). The citations
alleged violations for insufficient rock dust (30 C.F.R. § 75.403) and
an accumulation of .combustible materials (30 C.F.R. § 75.400). The
inspector determined that the conditions described in the citations
constituted an imminent danger. 2/ The affected area covered by the
order included "the 3rd South belt entry from #20 crosscut including
crosscuts and adjacent 1st Right entry from #34 to 3rd West." However,
the entire mine was closed for the remainder of November 3, 1986, and
result of any review of such order, to full
compensation by the operator at their regular rates
of pay for the period they are idled but for not
more than the balance of their shift. [2] If such
order is not terminated prior to the next working
shift, all miners on that shift who are idled by
such order shall be entitled to full compensation by
the operator at their regular rates of pay for the
period they are idled, but for not more than four
hours of such shift. [3] If a coal or other mine or
area of section 107 of this title for a failure of
the operator to comply with any mandatory health or
safety standards, all miners who are idled due to
such order shall be fully compensated after all
interested parties are given an opportunity for a
public hearing, which shall be expedited in such
ca~es and after such order is final, by the operator
for lost time at their regular rates of pay for such
time as the miners are idled by such closing, or for
one week, whichever is lesser ..••
.30 U.S.C. § 821.
~/

(sentence number added).

The imminent danger order states:
The following conditions which collectively
constitute an imminent danger were observed in 3rd
South belt entry and 3rd South, 1st right entry:
75.403-The rock dust which was applied in the 1st
right entry was not applied in sufficient quantities
to render the incombustible content to the required
65 percent from number 34 crosscut inby to ... 3rd
West (citation #2928498); 75.400-Combustible
material in the form of float coal dust, loose coal,
coal fines were observed in numerous locations in
3rd South belt entry, adjacent 1st Right entry and
connecting crosscuts. Also paper bags and trash at
#20 crosscut, old wood scraps & timber. (citation
number 2928499).

1549

for all shifts ·on Novem"_r 4, 5, 6, 7 and 10, 1986.
The UMWA's complaint for compensation filed January 29, 1987,
requested compensation for each miner who worked the 8:00 a.m. to 4:00
p.m. shift on November 3, 1986, and for each miner scheduled to work the
4:00 p.m. to midnight shift on November 3, 1986, the midnight to 8:00
a.m., 8:00 a.m. to 4:00 p.m., and 4:00 p.m. to midnight shifts on
November 4, 5, 6, 7, and 10, 1986. The complaint did not identify any
individual miner claimants or the amount of compensation claimed.
Rather, the UMWA stated in the complaint that it was incapable of
listing every miner affected by the imminent danger order or the exact
dollar amount claimed under section 111, and that a prompt effort would
be made to obtain this information through discovery procedures.
On February 12, 1987, the UMWA filed interrogatories addressed to
UP&L, requesting: (1) the name of each UMWA member employed at the mine
who was scheduled to work during the period covered by the complaint
(Interrogatory No. 5); (2) the name of each individual who had reported
in as unavailable to work and the purported reason for each individual's
lack of availability for work (Interrogatory No. 6a); (3) the "hourly or
daily rate of pay upon which each individual's most recent paycheck
preceding November 3, 1986, was computed" (Interrogatory No. 6b); and
(4) the name of each individual paid wages by UP&L for work performed
from November 3, 1986 to November 10, 1986, the amount received by each
individual, and the specific hours for which compensation was paid to
each individual (Interrogatory No. 6c).
On March 25, 1987, UP&L filed answers to the UMWA's interrogatories. In response to Interrogatory No. 5, UP&L provided a list,
labeled "Exhibit A, 11 which identified all miners employed at the mine
who worked or were scheduled to work during the period for which
compensation was sought. In response to Interrogatory 6a, UP&L provided
a list, labeled "Exhibit B," which identified miners who were
unavailable for work during the period in question. In response to
Interrogatories 6b and 6c, UP&L provided "Exhibit C, 11 which was UP&L's
payroll record for the period from November 3 to 10, 1986. This list
included all wages paid by UP&L to miners for work performed during the
period. It also listed the dates worked by each miner, the number of
hours worked on each date, and the applicable rate of pay for each
miner.
UMWA Legal Assistant Joyce A. Hanula reviewed these exhibits for
the purpose of identifying the miner claimants included within the
UMWA's complaint. In an affidavit, Hanula states that at least part of
her copy of Exhibit A was not legible and that she informed Thomas
Means, counsel for UP&L, of this. In her affidavit, Hanula further
asserts that Means indicated that he would contact UP&L and attempt to
get a clear copy, but that she never received another copy. Hanula also
asserts that Means and John Scott, another counsel for UP&L, told her
that "Exhibit C" was the best list to use since it had the miners' names
and hourly rates of pay. Scott, however, states in his affidavit that
he made no representations to the UMWA about Exhibit C other than to say
that it could be used to show which miners had already been paid and the
miners' rates of pay. Means states that he made no representations as

1550

to how the interrogatory answers should be evaluated by Hanula. The
UMWA filed additional interrogatories on April 3, 1987, but did not
request any further information concerning the identity of the miners
scheduled to work during the period from November 3 to 10, 1986.
On September 28, 1988, Hanula sent Scott a list of miners employed
at the mine during November 1986 and their daily rates of pay. She
stated that she could not determine from the information obtained
through discovery the shift that each of these miners was scheduled to
work and requested Scott to provide such information. She stated that
"[o]nce I receive this information I will send you the Union's complete
list of each individual entitled to compensation and the amount due."
On September 29, 1988, Scott returned the list with shift designations
beside each miner's name.
A few days later Scott suggested to Hanula that UP&L might offer
to settle the case by compensating the miners scheduled to work in the
specific area described in the imminent danger order~ On October 6,
1988, Hanula sent a letter to Robert Jennings, UMWA Health & Safety
Representative in Utah, attaching a list of the names of miners she
believed were entitled to compensation. She requested that the Local
Union review the list for accuracy. The letter further discussed UP&L's
possible offer of settlement. Jennings forwarded this information,
including the list of miners, to George Baker, President of the Local
Union.
On November 9, 1988, Hanula sent another letter to Jennings
attaching a revised list of miners, the miners' daily rate of pay, the
number of days each miner was idled, and the amount of compensation that
would be claimed by each miner in this compensation proceeding. The
letter stated that this information was gathered from UP&L payroll
records and that it was imperative that the Local Union contact her
regarding any changes or additions. The letter concluded by stating
that "[i]f I am not contacted by you or the Local by November 21, 1988,
I will assume the list is accurate and forward a copy to. the company."
On November 18, 1988, Scott proposed a settlement that would have
compensated each idled miner one shift of pay, and would have resulted
in a total payment of about $20,000. This offer was rejected by the
Local Union. The UMWA proposed a counteroffer as follows: "That each
miner listed on the enclosed attachment be paid the amount indicated
under the column entitled 'amount due' prior to December 25, 1988."
(emphasis in original.) This counteroffer is contained in a letter
dated December 5, 1988, from Hanula to Scott. The letter states that
each listed miner would be entitled to one-half the normal amount of pay
and that the amount of this settlement would total $5,961.64 more than
UP&L's offer. The attachment listed 148 miners who were entitled to
compensation and 34 miners who were not entitled to compensation. At
Scott's request, one name was subsequently deleted from the list of
miners to be paid and other adjustments were made.
By letter of agreement dated December 8, 1988, from Scott to
Hanula, UP&L accepted the UMWA's counteroffer. This letter was signed
by Scott for UP&L and approved and signed by Hanula for the UMWA. The

1551

settlement agreement states in numbered paragraph one '~.at "Exhibit A is
a list of all claimants in this proceeding" and that "UP&L shall pay to
each listed claimant the amount of compensation specified for that
claimant." Additionally, the settlement agreement provides that "UP&L
shall endeavor to make the payments by December 25, 1988, and in any
event shall do so by December 31, 1988." Furthermore, the settlement
agreement states that "[p]ayments to the claimants shall terminate any
obligations of UP&L, and the UMWA shall, after receiving notice from
UP&L that payments have been made, immediately file a motion with the
Commission to withdraw its complaint." The list attached to the
settlement agreement was identical to the list provided by Hanula with
her December 5, 1988 letter, including the agreed-to modifications, and
identified those persons who were entitled to receive payment, and the
amount to be paid. The agreement also acknowledges that the agreement
was entered into for purposes of settlement and that UP&L does not admit
that any compensation was due under the Mine Act.
UP&L filed the jointly signed settlement agreement with the judge
on December 15, 1988. In an order also dated December 15, 1988, the
judge requested the UMWA to move to withdraw its complaint for
compensation when it received notice that the miners have been paid.
On December 23, 1988, UP&L paid all the miners listed in Exhibit A
of the settlement agreement the sums therein specified, and notified the
UMWA that the payments had been completed. In late December 1988,
however, Hanula received a call from Baker, president of the Local
Union, informing her that there were four miners who were not on the
list attached to the settlement agreement, but who were "entitled" to
compensation. Scott, when informed of this matter, indicated a
willingness to approve payment to these four miners, but no more. Baker
also contacted Dave Lauriski, a UP&L manager, who took the same position
as Scott. Later in the week, however, Baker determined that 10 more
"eligible" miners has not been :focluded in the settlement and approached
Lauriski, who then indicated that UP&L would not pay any of the
14 miners.
In a letter dated January 10, 1989, Hanula informed Scott that 14
miners were not compensated and requested that these miners be paid.
Hanula stated that these miners were not compensated because she had
relied on UP~L s assertedly inaccurate payroll records to compile the
list of claimants. Hanula further indicated that as soon as these
14 miners were paid, the complaint would be withdrawn but that if the
miners were not paid, the compensation complaint would proceed. In a
letter to Hanula dated January 19, 1989, Scott stated that the 14 miners
were not entitled to compensation under the terms of the settlement
agreement and construed Hanula's request "as an attempt to set aside the
settlement agreement and as a breach of terms of that agreement."
1

UP&L then filed a motion to dismiss the complaint for compensation
on February 23, 1989. UP&L argued that the settlement agreement was
intended to resolve all issues and to terminate the proceeding in return
for payment to the 147 miners listed in the attachment to the agreement,
that UP&L had paid all of the miners on the list, and that under the
terms of the agreement the UMWA was obligated to withdraw its complaint.

1552

The UMWA took the position that the parties had agreed that all
idled miners would be compensated, but that when the agreement was
reduced to writing, it did not include 15 miners entitled to payment
under the settlement. J/ Alternatively, in the UMWA's view, the
omission of the 15 miners was the result of a mutual mistake on the part
of both parties. The UMWA argued that reformation of the settlement
agreement was necessary to include the 15 individuals along with the
appropriate amount to be paid to each, an~ requested a hearing. The
UMWA also argued that if there were a di~missal of the proceeding, such
dismissal should affect only the miners who had already received
payments under the settlement agreement, leaving the remaining 15 miners
free to pursue their section 111 claim or to negotiate a separate
settlement.
The judge denied UP&L's motion to dismiss and scheduled the case
for hearing. UP&L filed a motion for reconsideration on May 25, 1989.
Thereafter, the judge granted UP&L's motion to reconsider his earlier
ruling and he dismissed the UMWA's complaint for compensation.
The judge found that this proceeding was settled when Hanula
signed the settlement agreement on December 8, 1988. 11 FMSHRC at 1653.
After reviewing the record, the judge found that any mistake made in the
determination of who should be included in the settlement of the
compensation claim was a unilateral mistake on the part of the Local
Union or the UMWA and was not a mutual mistake. 11 FMSHRC 1652. The
judge found that the UMWA, not UP&L, prepared the list of eligible
claimants, that the UMWA had asked the Local Union on two occasions to
verify the accuracy of this list, and that the UMWA had submitted the
list to UP&L when it made its counteroffer. 11 FMSHRC 1653. In
addition, the judge held that there was no mutual mistake as to the
number of miners entitled to compensation in this case because the
parties were' consciously disputing that issue during their negotiations.
11 FMSHRC 1652. The judge found that the parties were making
concessions and compromising their positions with respect to whom, if
anyone, should receive compensation and how much money each should
receive. Id.
Having found no mutual mistake, the judge held that the agreement
could not be rescinded. He concluded that unilateral mistake could not
form the basis for rescission, and that only mutual mistake would
support a rescission. 11 FMSHRC at 1652. The judge also rejected the
UMWA's request that he hold a hearing and order that the excluded miners
be compensated. Id. He held that if a misrepresentation or mutual
mistake had occurred, the remedy was to rescind the settlement
agreement, not to reform it. 11 FMSHRC at 1653. Moreover, the judge
held that UP&L had already performed its side of the agreement, and that
to declare that the excluded miners be paid would impose a new and
different settlement agreement on UP&L. Id. The judge further
concluded that the miners of the Local Union could not keep the fruits

J/

Another miner (unnamed on this record) subsequently came forth
claiming that his name was improperly omitted from the settlement
agreement. Hanula Affidavit at n.3.

1553

of the settlement agreement and at the same time seek additional
compensation. Id.

II.
The Connnission's oversight of proposed settlements is, in general,
connnitted to the Connnission's sound discretion. See, ~· Pontiki Coal
Corp., 8 FMSHRC 668 (May 1986); Birchfield Mining Co., 11 FMSHRC 1428
(August 1989). We conclude that the judge's finding that a mutual
mistake was not established is supported by substantial evidence and
that he did not err in concluding that the settlement agreement signed
by UP&L and the UMWA on December 8, 1988, was valid and binding, and
required dismissal of the UMWA's complaint.
The UMWA maintains that the intent of the settlement agreement was
to pay all idled miners 50 cents on the dollar and that if the list was
incomplete it was a mutual mistake of both parties. The UMWA argues
that "when the parties reduced their agreement to writing they did not
include 15 of the miners who ... were entitled to a settlement." UMWA
Br. 3. It attributes this omission to a mutual mistake in the
compilation of the list of claimants. Id. The UMWA claims that UP&L
attorneys directed the UMWA to consult UP&L's payroll·· records in
Exhibit C to UP&L's answer to interrogatories, which it claims is
inaccurate, as the best list of eligible miners. UP&L denies that it
gave any such direction or that Exhibit C was inaccurate or misleading.
The judge did not resolve this particular dispute, but it is not
critical to proper resolution of this matter.
Exhibits A and C were submitted by UP&L in response to specific
interrogatories posed by the UMWA. In submitting the exhibits, UP&L was
providing to the UMWA the specific information that the UMWA requested.
Thus, in reviewing the nature of the responses, it is important to keep
in mind the specific questions asked. In this context, it is clear that
Exhibit A, attached to UP&L's response to interrogatory No. 5, would
contain the names of miners not listed on Exhibit C because of the scope
of the respective interrogatories. Exhibit A is a list of all miners
scheduled to work during the shutdown, .while Exhibit C is UP&L's payroll
record listing miners who received wages for work during the shutdown.
Miners who were paid no wages were not listed on Exhibit C. Although, a
portion of Exhibit A was apparently illegible, an answer to an
interrogatory that is illegible in whole or in part is non-responsive.
Thus, the UMWA could have demanded a complete response to its
interrogatories, but it chose to proceed to settlement without ever
clarifying the response to Interrogatory No. 5.
Furthei:'more, the record does not support the UMWA's contention
that_UP&L took joint responsibility for determining who might be
eligible to be included in the settlement. UP&L responded to the UMWA's
interrogatories. UP&L then relied on the list prepared by the UMWA and
sought only to eliminate miners who had been previously paid. It was
the UMWA that made the settlement offer that each miner on the now-

1554

challenged list be paid one- 1 ~lf of his normal wages. The Union did not
ask UP&L to verify the completeness of the list. Instead, it
appropriately asked its Local Union, twice, to verify the list's
accuracy. The obligation was the UMWA's, as representative of the
miners, to make sure that the list it was submitting for settlement
included all the miners it sought compensation for in the settlement.
The fact that a list of miners who were not entitled to compensation was
also attached to the settlement agreement does not establish that UP&L
intended to pay compensation to miners who were on neither list. Thus,
our review of the record leads us to con~lude that substantial evidence
supports the judge's conclusion that any mistake in preparing the list
of eligible miners was not mutual but was unilateral on the part of the
UMWA.
Whether UP&L believed that the UMWA's list of miners to be
compensated included all of the miners who would have been entitled to
compensation had the UMWA prevailed on its theory on the merits is
irrelevant. The UMWA agreed to withdraw its complaint if the miners on
the list were paid. UP&L was entitled to rely on the list of miners to
be paid prepared by the UMWA. The UMWA keyed its settlement offer to
the list of miners it had prepared in conjunction with the Local Union.
The evidence does not support UMWA's contention that UP&L agreed to pay
all miners 50 cents on the dollar. Rather, the evidence shows that UP&L
agreed solely to pay all miners set forth on the UMWA's list of miners
50 cents on the dollar. The evidence further shows that UP&L abided by
its part of the agreement and promptly discharged its duty by making the
payments required thereunder. Only after the payments were made and
disbursed to the 147 identified claimants did the UMWA belatedly demand
payment for another 15 miners, and refuse to do what it had agreed to do
upon payment to the listed miners, i.e., withdraw its complaint.
A settlement agreement may be reopened only on the grounds of
mutual mistake or fraud. A unilateral mistake is not sufficient to
allow the mistaken party to limit or avoid the effect of an otherwise
valid settlement agree.Illent. See, Brown v. County of Genesee, 872 F.2d
169, 174-75 (6th Cir. 1989); M'id-South Towing Co. v. Har-Win, Inc., 733
F.2d 386, 392 (5th Cir. 1984); Cheyenne-Arapaho Tribes of Indians v.
United States, 671 F.2d 1305, 1311 (Ct. Cl. 1982); Callen v.
Pennsylvania R.R., 332 U.S. 625, 630 (1948); Gaines v. Continental
Mortgage & Investment Corp., 865 F.2d 375, 378 (D.C. Cir. 1989). Only a
unilateral mistake by the UMWA in identifying the miners it believed
were entitled to compensation occurred here. Fraud or mutual mistake is
not present. Therefore, we agree with the judge that rescission or
reformation of the settlement agreement is improper.
Finally, we agree with the judge that a hearing was not required
to resolve this issue. No genuine issue of material fact has been
presented because the terms of the settlement are clear from the face of
the document itself. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-52 (1985). If the language used by the parties to an agreement is
"plain, complete and unambiguous," the intention of the parties must be
gathered solely from that language, no matter what the "actual or secret
intention of the parties may have been." 17 AM. JUR. 2D Contracts § 245
(1964). Because the language of the settlement agreement between UP&L

1555

and the UMWA is "plain, complete and unambiguous," a hearing to
determine the parties• "actual or secret intention" was not necessary.
III.

Accordingly, we conclude that the judge did not err in dismissing
the UMWA's complaint for compensation.

L. Clair Nelson, Commissioner

1556

Chairman Ford, dissenting:

This Commission has held that indiv~dual miner claimants under
section 111 of the Act, 30 U.S.C.821, are deemed to be parties even if
their miner's representative is actually prosecuting the compensation
claim as a party on their behalf. Loe. Union No. 1881, Dist. 17, UMWA
v. Westmoreland Coal Co. and Secretary of Labor, 9 FMSHRC 1195, 1196
(July 1987). Amidst the charges and countercharges exchanged in the
affidavits below, there appear to be 15 miners who have as cognizable a
claim against UP&L as the 147 miners who were paid as part of the
disputed settlement agreement.
Even if one were to assume that section 111 allows the
"compromising" of the claims of the 15 miners in exchange for the
benefits conferred by settlement upon their 147 fellow workers, the
record in this case does not support such a result.
The December 8, 1988 letter from John T. Scott III, counsel for
UP&L, to Joyce Hanula, representative for the UMWA, sets forth the terms
of the settlement agreement ultimately approved by the judge. Paragraph
No. 1 of that agreement states: "Attached as ExhibitA is a list of all
claimants in this proceeding. UP&L shall pay to each listed claimant
the amount of compensation specified for that claimant." UMWA Ex. H,
attached to Hanula Affidavit. "Exhibit A, 11 however, consists of more
than just a list of all claimants; it also includes on pp. 8-9 a list of
miners identified as "Members of Local Union 1769 Who Are Not Entitled
to Compensat.ion. 11 The ineluctible conclusion is that the attachment of
both lists to the agreement signified that ho.th the UMWA and UP&L meant
to account for all miners at the Deer Creek Mine - those who were
entitled to some compensation through the settlement and those who were,
for various reasons, not so entitled. lf
Since the names of the 15 miners do not appear on either list I
find more than sufficient grounds for establishing the mutual mistake
argued by the UMWA. To be sure, the responsibility for compiling a true
and complete list of claimants rested with the UMWA 1 s representative and
had her inquiries to the local union for verification of the claimants•
list been carefully considered and answered, this matter might not be
before us today. By attaching the list of non-claimants to the
agreement, however, counsel for UP&L in effect endorsed the UMWA 1 s error

lf

For some unexplained reason the list of those not entitled to
compensation was not submitted to the judge with the rest of the
settlement agreement. The list was, however, submitted for the record
(as part of the December 8, 1988 letter) on UP&L 1 s subsequent motion to
dismiss the proceeding. Hanula Affidavit, supra. In his order of
dismissal, however, the judge refers only to the seven page list of
claimants. 11 FMSHRC 1650.

1557

so [.__, to provide grounds for finding a mutual mistake.
The UMWA urges upon the Commission the "equitable solution" of
reforming the settlement agreement to include the 15 miners, or in the
alternative dismissing the proceeding involving the 147 miners as
settled and allowing a new complaint to proceed with respect to the 15
miners excluded from the settlement agreement. Serious impediments
stand in the way of both proposals. With respect to reformation of the
settlement agreement, such an action would amount to holding UP&L liable
for an estimated $4200.00 in additional compensation even though the
operator insists it is not liable for any compensation in the first
place and would, in the absence of the settlement agreement at issue,
reserve its option to pursue the entire matter on the merits. As for
dismissing the proceeding regarding the 147 miners already paid and
allowing a new claim on behalf of the 15 miners to proceed, such an
action would amount to reforming the settlement agreement inasmuch as
the parties, in particular UP&L, had assumed the settlement to cover all
ostensible claims arising from the withdrawal order issued at the Deer
Creek mine. Either option would, as the judge indicated, impose "an
entirely new and different settlement agreement on UP&L." 11 FMSHRC
1653.
Although the judge found no mutual mistake, I agree with his
conclusion that if one had occurred the appropriate remedy would be
rescission rather than reformation of the agreement. Shear v. National
Rifle Association, 606 F.2d 1251, 1260 (D.C. Cir. 1979). I further note
that both parties have offered rescission as an alternative to their
principally recommended dispositions of this matter. Brief of UP&L on
Review, p. 22; UMWA Reply Brief, below, at pp. 6-7.
In view of my foregoing conclusion that a mutual mistake was made
in the course of agreeing to the disputed settlement, I see no reason
for a hearing on that issue. I would therefore rescind the settlement
agreement, return the parties to the status quo ante, and remand the
matter to the judge for whatever additional proceedings may be
appropriate.

1558

Connnissioner Doyle, dissenting:
The majority, after setting forth the opposing views advanced to
the administrative law judge by affidavits of UP&L and the. UMWA as to
the intent of the settlement agreement, concludes that the judge did not
err when he found that the settlement argument was valid and binding and
required dismissal of the UMWA's complaint. I disagree.
The UMWA asserts that the settlement was intended to compensate
all miners scheduled to work during the relevant period, at the rate of
fifty cents on the dollar. UP&L asserts that the intent was to
compensate only those miners whose names were on the list attached to
the settlement agreement. Thus, we have a dispute as to an issue of
material fact. Case law is clear that, in such instances, the party
challenging the settlement agreement is entitled to a hearing on that
issue. 11 [W]hen opposition to enforcement of the settlement is based not
on the merits of the claim but on a challenge to the validity of the
agreement itself, the parties must be allowed an evidentiary hearing on
disputed issues of the validity and scope of the agreement." Mid-South
Towing Co. v. Har-Win, Inc., 733 F.2d 386, 390 (5th Cir. 1984). In that
case, the court found that the judge erred when he made a factual
finding without holding an evidentiary hearing. Id. at 391.
In Auteria v. Robinson, 419 F.2d 1197 (D.C. Cir. 1969), the court
found summary proceedings ill-suited to the resolution of factual issues
related to the formation of the contract (a settlement agreement).
Id. at 1200. There, as here, the judge appeared to rely on the
statements of the attorney representing the party seeking to uphold the
settlement agreement, which required rejection of the countervailing
version set forth in the appellants' affidavit. Because appellants
raised substantial is~ues of fact as to whether the parties were in
mutual accord on the terms of the settlement, and because there was no
opportunity for cross-examination or for credibility determinations by
the judge, the court determined that appellants were entitled to an
evidentiary hearing on the disputed facts. Id. at 1201-1203. Here, the
judge made findings of fact in support of his conclusion that the case
was settled, in its entirety, at the time the UMWA signed the settlement
agreement. 11 FMSHRC 1653. However, his conclusions are both
contradictory and unsupported by substantial evidence of record.
The judge found that "[t]he Union proposed instead that everyone
receive $.50 on the dollar" and that 11 [t]his was agreed to by UP&L. 11 Id.
at 1651. (emphasis added.) He then determined that "[u]nfortunately,
when the parties reduced their agreement to writing they did not include
14 (or 15) of the miners ••• entitled to settlement." Id. at 1651-52.
Thus, there was an unqualified finding that both parties intended to
compensate all miners and that the settlement agreement did not reflect
what both parties intended to be the settlement. The judge then found,
however, that "[i]n this case there was no mutual mistake. If a mistake
occurred it was unilateral on the part of Local 1769 or the UMWA. 11 Id.
at 1652. The judge does not explain on what he based this conclusion
but it should be noted that, while UP&L's attorneys argue this position,

1559

neither the affidavit of Mr. ~- ~tt nor that of Mr. Means asserts that it
was UP&L's intention to compensate only 147 miners rather than all
miners working or scheduled to work during the period in issue. There
being no other evidence in this record aside from the disputed
settlement agreement, except the affidavit of Ms. Hanula to the
contrary, I must conclude that there is no evidence in this record to
support the judge's finding that any mistake was unilateral. Instead,
by virtue of the judge's finding that the parties intended to compensate
all miners, it is ciear that the settlement agreement does not reflect
the parties actual agreement.
The judge also erred when he found that "there can be no mutual
mistake as to the number of miners entitled to compensation because on
this issue the parties compromised." 11 FMSHRC 1652. In support of
this finding, he cited Corbin on Contracts, which states, in relevant
part:
[W)here the parties are consciously disputing an
issue and agree upon a compromise in order to settle
it, they are making no mistake as to the matter at
issue and thus settled. There must be a mistake as
to matters that were not at issue and were not
compromised in order that the settlement may be
avoidable on the grounds of mistake.
6 Corbin, Contracts § 1292 (1963).
There is no evidence in the affidavits before the judge that the parties
were consciously disputing whether 162 or 147 or any lesser number of
miners were entitled to compensation and that the parties had agreed to
compromise on 147. Rather, the conscious disputes were over whether the
operator was required to compensate any miners, whether only those
miners assigned to the section described in the order were entitled to
compensation, whether all miners in the entire mine were entitled to
compensation, and the amount of compen~ation, if any, due each miner.
If the UMWA had agreed to settle for compensation for only those miners
on the idled section, the claim would be considered compromised. When
the UMWA agreed to settle for fifty cents on the dollar rather than full
compensation, that was a compromise. At no time (at least as evidenced
by this record) did the UMWA contemplate settling on behalf of less than
all of the miners scheduled to work during the period in issue.
Therefore, there was no "compromise" on this issue and the settlement
may be voidable on the grounds of mistake. Corbin, supra.
I must disagree with the majority that the inaccuracies in
Exhibit C are not critical to the resolution of this case. Slip. op at
7. I believe they are in error when they state that "it is clear that
Exhibit A .•. would contain the names of miners not listed in Exhibit C
because of the scope of the respective interrogatories." Id. In fact,
the scope of Interrogatories No. 5 and No. 6 are identical-.Interrogatory No. 5 applied to each UMWA member employed at Deer Creek
and scheduled to work on the dates in issue. All of the names contained
on Exhibit A should have been included on Exhibit C because
Interrogatory No. 6 states as follows:

1560

11

6. ·With respect to each of the individuals
identified in Interrogatory No. 5, please:

*

*

b. State in dollars and cents the hourly or
daily rate of pay upon which each individual's most
recent paycheck preceding November 3, 1986, was
computed;"
Complainants' First Set of Interrogatories at 2.

(emphasis added.)

In response to Interrogatory No. 6(b), UP&L answered "See Exhibit C."
Answers to Interrogatories at 4. Thus, contrary to the majority's
assertion, UP&L, in effect, represented that all of the names contained
on Exhibit A were also contained on Exhibit C. ll
Irrespective of whether an accord was reached as to whether all
miners were to be compensated, it is clear from the UMWA's Complaint for
Compensation that a claim was being made on behalf of each and every
miner who worked or was scheduled to work during the statutory period.
Complaint at 2. The individual miners are the real parties in interest
in this action, not the UMWA. The case was settled as to only 147 of
the 162 miners who appear to fall within the categories set forth in the
complaints. Because the other fifteen miners were not part of the
settlement agreement and received no consideration as a result of it,
the settlement agreement is void as to them. Therefore, I believe the
judge erred in dismissing their action.
Even if one were to assume, for the sake of argument, that the
mistake was not mutual but rather that UP&L was aware of the fifteen
additional miners and intended to exclude them from the settlement, they
would be just that, excluded from the settlement and not bound by it.
Thus, the result is the same, i.e., their claims should not have been
dismissed.
For the reasons set forth above, I would reverse the judge and
remand f.or an evidentiary hearing and a reanalysis of the law.

e~tl~

JSYce A. Doyle
Conunissioner

lf

The affidavits of UP&L's attorneys assert basically that they made
no representations as to the lists provided in response to the
Interrogatories. However, the Conunission 1 s Rule 57 requires that
interrogatories be answered under oath, a requirement with which UP&L's
attorneys failed to comply.

1561

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

August 28, 1990

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

Docket No. PENN 88-227

PENNSYLVANIA ELECTRIC COMPANY

BEFORE:

Ford, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMA:ISSION:
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"), and
is before us for a second time on review. The Secretary of Labor
alleges that Pennsylvania Electric Company ("Penelec") twice violated
30 C.F.R. § 77.400(c) by failing to guard two head conveyor drives at
its Homer City Electric Generating Station ("Generating Station" or ·
"Station"). ll
The primary question before the Commission in our previous review
was whether the cited working conditions were governed by regulations
enforced by the Secretary under the Mine Act, as argued by the
Secretary, or by regulations enforced by the Secretary under the
Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seg.
(1988) ("OSHAct"), as argued by Penelec. A majority of the Commission

ll

30 C.F.R. § 77.400(c) states:
Guards at conveyor-drive, conveyor-head, and
conveyor-tail pulleys shall extend a distance
sufficient to prevent a person from reaching behind
the guard and becoming caught between the belt and
the pulley.

The "head" end of a belt conveyor is the delivery or discharge
end. The "head drive" is the device by which mechanical power is
transmitted to the head pulley of a belt conveyor. See Bureau of Mines,
U.S. Department of the Interior, A Dictionary of Mining, Mineral, and
Related Terms 532, 533 (1968).

1562

held that the Secretary properly could decide to make mine safety and
health standards applicable to the cited area, but remanded the case to
Commission Administrative Law Judge Gary Melick for further proceedings
because the record did not clearly indicate whether the Secretary had
properly asserted Mine Act jurisdiction. Pennsylvania Electric Co.,
11 FMSHRC 1875, 1882 (October 1989)("Penelec"). The Commission stated:
Because of the pervasive ambiguity in the record on
the question of whether the Secretary of Labor,
through MSHA, has properly exercised her authority
to regulate the cited working conditions .•. we find
it appropriate to order further proceedings.
11 FMSHRC at 1885. On remand the judge held that he could not find "any
legally cognizable Secretarial impropriety in exercising her authority
to regulate [the area in question] within the framework of the Act. 11
12 FMSHRC 123, 124 (January 1990)(ALJ).

I.

Chairman Ford and Commissioner Doyle would reverse the judge's
decision and Commissioners Backley and Nelson would affirm. ~/ As a
consequence, the Commission is evenly split, a first-time occurrence at
the Commission. We conclude that the effect of the split decision is to
allow the judge's decision on remand to stand as if affirmed.
Section 113(c) of the Mine Act authorizes the Commission to
delegate to "any group of three or more members any or all of the powers
of the Commission." 30 U.S.C. § 823(c). The Commission has frequently
designated itself as a panel of three members to exercise the powers of
the Commission. The Mine Act does not expressly state that disposition
of a case (whether affirmance or reversal) shall occur through the
majority vote of the Commission or a designated group (panel) of its
members. The legislative history provides some indication that case
disposition is to be by the traditional judicial process of simple
majority vote:
The Commission is authoriz.ed to act in panels of
three members, with a majority of each panel
sufficient to decide a matter.. This organization is
patterned after that of the National Labor Relations
Board and is intended to give the Commission a more
flexible administrative organization in order to
facilitate the efficient processing of cases before
the Commission.
S. Rep. No. 181, 95th Cong., 1st Sess. 47-48 (1977), reprinted in Senate
~/

Commissioner Lastowka did not participate in the consideration or
disposition of this second review proceeding in this case.

1563

Subcommittee on Labor, Conunitr~e on Human Resources, 95th Cong. 2nd
Sess., Legislative History of the Federal Mine Safety and Health Act of
1977, at 635-36 (1978) ("Legis. Hist.")(emphasis added). However,
neither the Mine Act nor its legislative history addresses the
additional subject of the effect of an evenly divided Commission panel.
In the absence of a definitive indication in the statute and its
history, it is instructive to turn to general principles of federal
adjudication. The United States Supreme Court affirms the decision of
the lower court when the justices are evenly divided. In an early case
where the justices were divided, Chief Justice Marshall, writing for the
Court, held that "the principles of law which have been argued, cannot
be settled; but the judgment is affirmed, the court being divided in
opinion upon it. 11 Etting v. Bank of the United States, 11 Wheat. 59, 78
(1826). In practice, appellate courts allow the lower court decision to
stand when there is an evenly split decision. In a later case, the
Court explained:
If the judges are divided, the reversal cannot be
had, for no order can be made. The judgment of the
court below, therefore, stands in full force.
Durant v. Essex Co., 74 U.S. 107, 112 (1868).
In a somewhat analogous context, courts of appeal have held that
evenly split decisions of the Occupational Safety and Health Review
Conunission ("OSHRC") are reviewable. George Hyman Construction Co. v.
OSHRC, 582 F.2d 834 (4th Cir. 1978); Marshall v. Sun Petroleum Products
Co., 622 F.2d 1176 (3rd Cir. 1980). These courts determined that
because an evenly split OSHRC decision is analogous to an evenly split
court decision, the administrative law judge's decision should be
allowed to stand. Id. The courts reasoned that the party losing before
the administrative law judge is placed in a "jurisdictional limbo"
unless the OSHRC order is appealable to the Court of Appeals. Hyman
Construction Co., 582 F.2d at 837. In each case, the ·court determined
that the OSHRC decision was a final order for purposes of judicial
review and therefore subject to examination "by the next link in the
hierarchal chain of review." Marshall, supra, 622 F.2d at 1180.
Several courts of appeals, however, have held the OSHRC errs when
it issues a decision with an evenly split vote because "no official
action can be taken by the Commission without the affirmative vote of at
least two [of its three] members." Shaw Construction, Inc. v. OSHRC,
534 F.2d 1183, 1185 (5th Cir. 1976). See also, Cox Brothers, Inc. v.
Secretary of Labor, 574 F.2d 465 (9th Cir. 1978). The court in each
case determined that the OSHRC's decision was not a reviewable order
within the jurisdiction of the Court. The holding in each of these
cases, however, was based in large part on language in the OSHAct that
is not contained in the Mine Act. 11

11

Section 12(e) of the OSHAct provides that "official action can be
taken only on the affirmative vote of at least two members." 29 U.S.C.
§ 661(f).

1564

A review .of the Mine Act and its legislative history reveals no
intent to limit judicial review of Commission decisions. The purpose of
Congress in authorizing the Commission to act in panels of three or more
members was to provide "a more flexible administrative organization in
order to facilitate the efficient processing of cases." Legis. Hist. at
636. Adopting the traditional federal judicial model for handling
evenly split decisions of this adjudicatory Commission will advance that
Congressional objective. Accordingly, all C,ommissioners participating
in this matter hold that this decision is a final order of the
Commission subject to judicial review under section 106 of the Mine Act,
30 U.S.C. § 816. Because a majority of the Commission did not vote to
reverse the decision of the administrative law judge, his decision
stands in full force, as if affirmed. Set forth in section III of this
decision, infra, are the Commissioners' separate opinions with respect
to the merits of this case.

II.

Penelec also has raised two procedural matters on review. First,
Penelec argues that Judge Melick deprived it of the opportunity to
resolve ambiguities in the record by denying its motion to consolidate
this. case with other cases pending before the judge, which also raise
jurisdictional issues concerning the Generating Station. The
Commission's procedural rule provides that an administrative law judge
"may ... order the consolidation of proceedings." 29 C.F.R. § 2700.12.
A determination to consolidate lies in the sound discretion of the trial
judge. In this instance, the judge decided not to consolidate the
present case, involving two citations that had already been tried,
decided and appealed to the Commission, with challenges to 23
subsequently issued citations that had not yet been tried. Instead, the
judge stayed the hearing on the subsequently issued citations. Given
these facts, all Commissioners participating hold that Judge Melick did
not abuse his discretion in denying Penelec 1 s motion to consolidate.
Penelec also argues that Judge Melick erred in denying its motion
to reopen discovery. Penelec maintains that it was unable to present
adequate evidence at the hearing on remand to establish a basis for
determining whether the Secretary exercised her jurisdiction
appropriately. It contends that the judge denied its motion without
good cause. See 29 C.F.R. § 2700.SS(a). It states that additional
discovery was necessary because "[o]nly with the Commission's October
1989 decision was Penelec on notice that the Secretary might
legitimately assert jurisdiction" at the Generating Station. Penelec
Br. at 32.
We hold that Judge Melick did not abuse his discretion in denying
Penelec 1 s request to take discovery out of time. Penelec waited until
December 1, 1989 to request discovery with respect to the issues
remanded to the judge on October 10, 1989. Penelec has set forth no
explanation why it did not seek to initiate this discovery earlier.
Penelec's delay is particularly puzzling because the judge issued the

1565

notice of hearing on October 20, 1989 and a prehearing order on November
8, 1989. Instead of seeking discovery within a reasonable time after
the case was remanded, it waited until 12 days before the scheduled
hearing to request discovery. We agree with the judge that Penelec's
request for discovery was untimely and that it failed to show good cause
for extending the time for initiating discovery. Under these facts, all
Commissioners participating hold that the judge did not abuse his
discretion.

III.

The opinions of the Commissioners on the merits of this case
follow.
Commissioners Backley and Nelson, in favor of affirming the
decision of the administrative law judge:
A majority of this Commission previously determined that "MSHA
possesses statutory authority to regulate working conditions associated
with Penelec's preparation of coal, and that therefore the Secretary of
Labor coul~ decide to make mine safety standards applicable" to the SA &
SB head drives at Penelec 1 s Generating Station. Penelec, 11 FMSHRC at
1882. This case was remanded to the administrative law judge because
the Commission was "unable to determine with any degree of assurance
from the murky record" whether the Secretary had decided to make mine
safety standards or OSHA standards applicable to the head drives. Id.
The record contained no evidence of enforcement activity by OSHA or MSHA
prior to the issuance of the subject citations and no evidence that the
Secretary adhered to the procedures set forth in the MSHA-OSHA
Interagency Agreement ("Interagency Agreement"), 44 Fed. Reg. 22827
(1979), for resolution of jurisdictional conflicts between the two
agencies. Penelec, 11 FMSHRC at 1883. The Commission concluded that
11
[b]ecause of the pervasive ambiguity of the record on the question of
whether the Secretary of Labor, through MSHA, has properly exercised her
authority to regulate the cited working conditions at Penelec 1 s
Generating Station," the case should be remanded for the taking of
further evidence. Penelec, 11 FMSHRC at 188S.
At the hearing on remand, Inspector John Kopsic, the MSHA
inspector who issued the head drive guarding citations involved in this
case, testified that he regularly inspected the SA and SB conveyor belts
prior to the issuance of the subject citations. Remand Tr. 118-19, 122,
124-2S, 132. He further testified that he has been regularly inspecting
this area since 1982 and that he has issued citations for guarding
violations at the SA and SB head drives. Id. Based on this "newly
developed undisputed evidence," the judge found that "MSHA had indeed
previol!sly inspected, and issued citations for violations at, the
subject SA and SB head drives." 12 FMSHRC at 12S n.1. As Penelec
presented no evidence to the contrary, the judge's finding in this
regard is supported by substantial evidence.

1566

Furthermo-re, MSHA had previously issued citations at these head
drives to Rochester and Pittsburgh Coal Company ("R&P") or its
subsidiary (Iselin Preparation Company), the operator of the coal
cleaning plant at the Generating Station, and, according to Inspector
Kopsic, Penelec was aware of these previous citations because its own
employees abated the violations. Remand Tr. 127, 128-32, lSO. The
inspector further testified that on one occasion he had observed that a
Penelec supervisor was present during the abatement of a head drive
violation. Remand Tr. 128. Inspector Kopsic stated that he issued the
present guarding citations to Penelec becaus"e the safety director of
R&P's coal cleaning plant informed him that Penelec employees had
removed the guards from the head drives and that it was Penelec 1 s
responsibility to maintain that area. Remand Tr. 1S3. Based on this
evidence, the judge concluded that Penelec was aware of the previous
inspections and violations at the head drives. 12 FMSHRC at 12S n.1.
Again, Penelec did not present any evidence on this issue, and
substantial evidence supports the judge's finding.
Based on the evidence presented at the remand hearing, it is
apparent that the Secretary has consistently applied mine safety and
health standards to the SA and SB head drives. No evidence was
presented that the Secretary has applied occupational safety and health
standards to these head drives. Consequently, we conclude that the
Secretary has demonstrated that she has properly exercised her authority
to regulate the working conditions at the cited area under the Mine Act.
In addition, the record makes clear that Penelec had actual or
constructive knowledge that citations had been issued in the past for
violations of mine safety and health standards at the SA and SB head
drives. Its employees participated in the abatement of these previous
violations. The fact that past citations were issued to R&P is not
controlling. An owner and its independent contractor are "operators"
under section 3(d) of the Mine Act, 30 U.S.C. § 802(d), and either, in
appropriate circumstances, may be held liable for violations of safety
standards regardless of fault. See ~· International Union, UMWA v.
FMSHRC, 840 F.2d 77 (D.C. Cir. 1988). Thus, the fact that MSHA cited
R&P, an independent contractor, rather than Penelec, the owrier, for past
violations in the disputed area does not, by itself, negate MSHA 1 s
enforcement history or Penelec 1 s knowledge of it.
The Interagency Agreement was developed, in part, to "provide a
procedure for determining general jurisdictional questions." 44 Fed.
Reg. 22827. In the Commission's previous decision, the majority
determined that the first clear assertion of MSHA jurisdiction in the
record was contained in an April 12, 1988 letter from the 'MSHA District
Manager to Penelec stating that MSHA was expanding its inspection
authority at the Generating Station to include all areas directly
involved in the coal preparation process. Penelec, 11 FMSHRC at 1883.
The record revealed that a copy of this letter was sent to the OSHA Area
Office. On the basis of this evidence, the Commission questioned
whether the Secretary had properly invoked her jurisdiction through the
procedures set forth in the Interagency Agreement.
The evidence produced by the Secretary on remand makes clear that
the particular area in question has been inspected by MSHA since at

1567

least 1982 and no evidence was produc~ to show that OSHA has ever
inspected it. As a consequence, the Interagency Agreement has n~
bearing on this case because no question or conflict between OSHA and
MSHA existed. We now know that the Secretary has consistently inspected
the head drives under the Mine Act rather than the OSHAct. As discussed
above, Penelec had notice of this fact.
Penelec and Edison Electric Institute ("Edison"), amicus curiae,
also question at this stage MSHA's jurisdiction to inspect the head
drives. Because the Commission previously determined that such
jurisdiction exists, we need not respond to these arguments. 4/ We
adopt the holding of the majority in our previous decision th~t MSHA has
jurisdiction over the SA & SB head drives.
Accordingly we would affirm the decision of the administrative law
judge.

~~

'Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

~/

We note that Penelec's and Edison's additional argument that MSHA
cannot preempt OSHA's jurisdiction without first promulgating rules and
regulations addressing the working conditions in electric generating
facilities was not previously presented to the judge. Except for good
cause shown, no assignment of error by a party may rely on any question
of fact or law upon which the judge has not been afforded the
opportunity to pass. 30 U.S.C. § 823(d)(2)(A)(iii); Union Oil Co.,
11 FMSHRC 289, 297 (March 1989). Penelec has not shown any cause why
this argument was not made to the judge. In addition, we note that MSHA
does have broad safety standards in place governing belts and head
drives. Thus, MSHA's standards address the working conditions of the
cited area. MSHA is not necessarily reguired to develop more
particularized standards that apply exclusively to those portions of
'electric generating facilities that are subject to its jurisdiction.

1568

Chairman Ford, in favor of reversing the decision of the administrative
law judge:
As a member of the majority in the Commission's prior
consideration of this case, 11 FMSHRC 1875, I ,concurred in the decision
to vacate Judge Melick's initial decision and to remand the matter for
the taking of additional evidence on the jurisdictional issues giving
rise to this dispute. I further concurred in the view that the broadly
drawn definitions of "coal or other mine" and "coal mine" in section
3(h) of the Mine Act, 30 U.S.C. § 802(h), did implicate certain
facilities at Penelec's Homer City Steam Electric Generating Station,
such that the Secretary could assign occupational safety and health
enforcement regarding those facilities to the Mine Safety and Health
Administration.
The prtncipal question that led me to join my colleagues in the
majority was whether the Secretary had indeed assigned such enforcement
authority to MSHA. Flowing from that principal question was my concern
as to whether the assignment, if executed, was executed with sufficient
clarity as to have given Penelec adequate notice that its coal handling
activities at the Generating Station would be subject to Mine Act
authority before the enforcement actions at issue were taken. The
majority had concluded that such questions could not be answered on the
basis of the "murky record" before us. 11 FMSHRC 1882. Regrettably,
the record developed on remand and now before us on review is in many
respects even murkier.
As supplemented by the remand proceeding, the record still
exhibits inconsi~tencies in enforcement policies and practices (some of
which the judge characterized as "bizarre"); unanswered questions as to
whether there is an overall Departmental plan for accommodating
jurisdictional tensions between the Mine Act and the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et seq., (1982) at coal-fired
electric power plants; and a patchwork scheme of inspections that does
not adequately address the prior majority's concerns respecting the
"whipsaw effects to which an employer can be subjected when important
jurisdictional issues appear to be resolved with no assurance that
potentially competing agencies have reached a mutual and definitive
determination as to their respective roles." 11 FMSHRC 1885.
For those reasons I must part company with my two colleagues who
find that "the Secretary through MSHA has properly exercised her
authority to regulate the cited working conditions at Penelec's
Generating Station." Id. It has not been demonstrated that the
agencies involved, let alone Penelec, had a clear understanding of the
jurisdictional lines of demarcation at the time the citations were
issued.
The record, both initially and on remand., establishes the
following pertinent chronology:

1569

July 5, 1977 - District Manager Huntley by letter
informs William Mason, OSHA operations officer, that
contrary to OSHA's position that the Iselin
Preparation Plant is under OSHA's jurisdiction, the
Deputy Associate Solicitor for Mine Health and
Safety (Department of the Interior) has determined
that the Iselin Preparation Plant is under the
Mining Enforcement and Safety Administration's
(MESA's) jurisdiction. (Gov. Ex. 1).
July 28, 1977 - Coal Mine Inspection Supervisor
Robert G. Nelson by Memorandum delineates those
locations at the Generating Station where Iselin
Preparation Co. "has or will have control." (Gov.
Ex. 2). They include a "blending bin" subsequently
identified at the remand hearing as being the same
as bin No. 2 by Inspector Kopsik (Tr. p. 133). No
specific reference, however, is made to the SA and
SB conveyors or to their head drives.
August 2S, 1977 - Penelec and MESA meet and reach
an oral agreement as to the jurisdictional lines
between MESA and OSHA at the Generating Station.
September 6, 1977 - R.C. Herman, Penelec
representative at the August 25 meeting,
memorializes his understanding of the August 25,
1977 agreement that states in part: "At #2 Bin MESA
will have jurisdiction above the top of the bin
except for the portions of #SA and #SB conveyors
within the structure including the drive units and
head pulleys." (Joint Ex. 1). (No record of MESA's
understanding of the August 2S, 1977 agreement has
been produced in this proceeding.)
April 17, 1979 - The MSHA/OSHA Interagency
Agreement is published whereby procedures are
established for resolving disputes over jurisdiction
between the two agencies. 42 F.R. 22827, 22828.
November 29, 198S - In a Motion to Dismiss filed
with the Commission in Utility Fuels, Inc., Docket
No. CENT 8S-89, Counsel for the Secretary states:
"MSHA traditionally has not inspected power plants.
Although the Secretary is not able to cite to a
particular memorandum incorporating this policy,
MSHA and its predecessors have consistently found
the production of power to be outside the
jurisdiction of the agency. MSHA has taken into
account that a portion of the process utilized to
produce electric power from coal requires handling
and processing coal but has determined that those
activities are subsumed in the specialized process
utilized to produce electric power, and that the

1570

overall power plant process is more feasibly
regulated by OSHA."
January 7, 1988 - MSHA Inspector Kopsic issues the
two citations on review alleging violations of
30 C.F.R. § 77.400(c) with regard to guarding at the
SA and SB head drives at the Generating Station.
The citations are issued to Penelec rather than to
the Iselin Preparation Plant as had been the custom
up to that date.
February 2S, 1988 - Mr. Richard E. Orris, manager
of safety for Penelec, writes to District Manager
Huntley asking for Huntley's position with respect
to MSHA's jurisdiction over facilities at the
Generating Station including the SA and 5B
conveyors, their head pulleys and their drive units.
April 12, 1988 - District Manager Huntley responds
by asserting that the 1977 Mine Act "extends to all
areas which contribute to or play a part in the work
of preparing coal." (Joint Ex. 3). Attached to the
letter is a list of facilities that MSHA "is
currently not inspecting but which MSHA has
jurisdiction over and will be inspecting" and
includes "[b]in No. 2 including motors, plug shoot
probe, control buttons, conveyors SA and SB and all
floors."
April 14, 1988 - District Manager Huntley forwards
a copy of the April 12, 1988 letter to Mr. Gary
Griess, Area Director of OSHA. (Gov. Ex. 3). (This
letter was apparently lost or misdirected within
OSHA since a duplicate was sent after the
Commission's October 10, 1988 decision and remand
and before the judge's December 13, 1989 hearing on
remand. Tr. 1S7-160).
December 30, 1988 - Judge Melick issues his
initial decision finding Mine Act jurisdiction over
the SA and SB head drives.
January 31, 1989 - OSHA issues proposed rule
29 C.F.R. Part 1910 relating to Electric Power
Generation, Transmission, and Distribution;
Electrical Protective Equipment, wherein the agency
states the rule covers work practices at "[f]uel and
ash handling and processing installations such as
coal conveyors and crushers." S.4 F.R. 4974, S009.
June 28, 1989 - At oral argument in a companion
case, Westwood Energy Properties v. Secretary of
Labor, MSHA, 11 FMSHRC 2408 (December 1989), counsel
for the Secretary indicates that other coal

1571

consuming industries such as steel mills and alumina
plants may be subject to Mine Act jurisdiction if
they engage in coal processing activities. (Oral
Argument Tr. pp. 22-23, 2S-26).
October 10, 1989 - The Commission issues its
decision and remand in this case.
December 13, 1989 - Judge issues his decision on
remand.
If there is a consistent or even discernible pattern of
enforcement in the above chronology, I fail to see it. Nor does
Inspector Kopsik's testimony on remand serve to resolve or reconcile the
discrepancies set forth above. While he testified to having inspected
the SA and SB conveyors including the head drives and to having issued
citations thereon prior to January 7, 1988, his testimony is equivocal
as to the locations of the violations. Tr. 123. He had no recollection
of the dates when the citations were issued and it appears that the
citations, when issued, were issued because Iselin employees were
exposed to the alleged hazards cited. Tr. lSS. Unfortunately, none of
the citations Inspector Kopsik testified to was introduced into evidence
so as to document his generalized testimony with respect to the scope of
his pre-1988 inspections at the Generating Station. In any event,
regardless of what Inspector Kopsik and his immediate supervisors
considered to be the scope of Mine Act jurisdiction at the Generating
Station, there existed on January 7, 1988.no official Department of
Labor policy that assigned coal handling and processing activities
undertaken by an electric utility to MSHA's jurisdiction. On the
contrary, the last official pronouncement of record prior to January 7,
1988 that addressed such activities was the Secretary's declaration in
Utility Fuels, supra, that coal handling and processing at power plants
was "more feasibly regulated by OSHA·. 11
Furthermore, there are a number of other anomalies revealed on
remand that confound any productive inquiry into the jurisdictional
issues placed before the Commission in this case. First, it appears
that for several years the jurisdictional lines between MSHA and OSHA
were determined by the union affiliation of the employees in the various
locations throughout the Generating Station. That rule of thumb seems
to have been imposed early on (See attachment to the MESA memorandum of
July 28, 1977 identified as Gov. Ex. 2 and Tr. pp. 97-102.) and was only
officially rescinded in District Manager Huntley's letter of April 12,
1988 (Joint Ex. 3). Such a distinction assuredly has no foundation in
the Mine Act.
Second, for enforcement purposes MSHA considers the Iselin
Preparation Company as the mine "operator" and identifies it as such,
while the agency considers Penelec an "independent contractor" to,
Iselin. (Once the January 7, 1988 citations were issued, MSHA required
Penelec to obtain a "contractor" identification number. Tr. p. 88). In
reality the Iselin Preparation Plant is owned by Penelec but is operated
by Iselin, Penelec's independent contractor and a subsidiary of the
Rochester and Pittsburgh Coal Company. Thus, the enforcement scheme

1572

employed by MSHA is based upon a characterization that is the complete
obverse of the actual contractual relationship obtaining at the
Generating Station.
Third, on review the Secretary takes the position that all fuel
handling facilities at the Generating Station that handle "run of mine"
coal are subject to Mine Act jurisdiction and MSHA enforcement while all
facilities handling processed coal are subjeGt to OSHA jurisdiction and
enforcement. (Secretary's Brief, p. 21). Y,et the schematic "coal flow
diagram," introduced in the initial hearing as Exhibit B, clearly
indicates that the Huntley letter of April 12, 1988 sought to extend
MSHA's jurisdiction over facilities solely dedicated to the handling of
processed coal. For example, the bottom of the diagram depicts a route
for truck-delivered pre-processed coal that completely bypasses the
processing facilities at the Generating Station and delivers the coal
directly to generating unit 3 of the power plant. Nevertheless, the
schematic identifies this bypass as subject to MSHA's jurisdiction.
In sum, the above evidence of record leads me to conclude that
MSHA's authority to regulate the cited conditions at Penelec's
Generating Station has not been properly exercised inasmuch as Penelec
had insufficient and conflicting notice as to the scope of Mine Act
authority up to the time the citations were issued in early January of
1988. - Accordingly, on that basis alone I would reverse the judge and
vacate the citations.
On a more fundamental-level, however, the record thus far adduced
calls into question whether dual enforcement by both MSHA and OSHA at
the Homer City Generating Station and others similarly situated comports
with Congressional intent and achieves the goals of the respective
statutes from which the two agencies derive their authority and purpose.
In her brief on review the Secretary acknowledges a contradictory
position respecting Mine Act jurisdiction over power plants taken by her
predecessor in Utility Fuels, supra, Secretary's brief, p. 12, but does
not repudiate it. It could therefore be inferred that jurisdiction over
the coal handling facilities at electric generating plants may be
decided on an ad hoc, case by case basis. Such an approach, however,
gives utilities and other coal consumers little guidance and less notice
as to what their compliance responsibilities are to be from one location
to another or from one day to another. lf It would also frustrate any
attempts to develop corporate-wide safety programs for utility companies
with multiple generating stations - some under OSHA jurisdiction alone,
and some under combined MSHA and OSHA jurisdiction.

11

In that connection, I note with interest the settlement agreement
approved on August 3, 1990 by the judge in Westwood Energy Properties,
supra, a companion case to the instant case, whereby MSHA agrees not to
assert jurisdiction over an electric power generating station and its
fuel handling facilities located on an abandoned coal mine site even
though the fuel, known as culm, contains refuse coal and undergoes
processes similar to those at issue here. 12 FMSHRC

1573

Such a lack of consisten~y and uniformity can have negative safety
consequences even at a single location such as the Homer City Station.
For instance, MSHA electrical standards for surface coal mines and
facilities incorporate by reference the provisions of the National
Electric Code (NEC). The NEC, however, explicitly exempts electric
utility installations from its coverage. National Electric Code, § 902(b)(5) (1971). The irony of this contradiction was not lost on the
Fourth Circuit Court of Appeals when it held that a utility was not an
independent contraGtor for purposes of the Mine Act: "MSHA would apply
to electric utilities a code which by its very terms excludes electric
utilities." Old Dominion Power Co. v. Donovan, 772 F.2d 92, 99
(1985). '!:_/
These specific standard-based conflicts attest to the "whipsaw"
effects that concerned the majority in our prior decision. Viewed
against the safety and health goals of the two statutes in question,
however, these conflicts loom larger than mere inconveniences to those
industrial entities subject to dual enforcement: they constitute a
potential for confusion that can actually diminish safety as the Fourth
Circuit warned. Surely Congress could not have intended such a contrary
result.
The Mine Act's jurisdictional map as drawn by Congress is to be
found in Section 3, specifically in the definitions of "coal or other
mine" and "coal mine." Those definitions are not models of verbal
brevity and clarity, but it is generally accepted that the definitions
were broadly drawn in order to avoid questions of jurisdiction such as
those that arose in the course of the Buffalo Creek disaster wherein the
Bureau of Mines, MSHA 1 s predecessor, encountered challenges to its
authority to regulate impoundments and retaining dams directly
associated with coal mining. See S. Report No. 95-181, 95th Cong., 1st
Sess. 14, reprinted in U,S. Code Cong. & Admin. News 1977, 3401, 3414.

'!:_/
Amicus Edison Electric Institute (EEI) argues that even if a clear
line of demarcation could be drawn between those areas subject to MSHA
jurisdiction and those subject to OSHA jurisdiction at a single
location, inconsistencies between the respective standards of the two
agencies could have adverse consequences for employee safety. For
example MSHA standards require a lock out and tagging system while
repairs are made on electrical systems while OSHA permits utilities to
employ a tagging system only. Compare 30 C.F.R. § 77.501 with 29 C.F.R.
§ 1926.950(d). Similar differences arise with respect to clearances
between mobile equipment and overhead power lines. Compare 30 C.F.R.
§ 77.807.2 with 29 C.F.R. 1926.950(d) (Table V-1); 952(c)(2).
EEI
argues that such conflicting compliance requirements would complicate
equipment design as well as employee safety work rules and training, and
goes on to quote the Fourth Circuit in Dominion, supra: "Requiring
electric utility employees suddenly to adhere to conflicting stanliards
dependfng on their job location can only lead to danger, especially
where work around high voltage is involved." 772 F.2d at 99. From a
safety standpoint, the arguments of amicus and the conclusions of the
Fourth Circuit are most compelling.

1574

The definition of "coal or other mine," set f(_th in section
3(h)(l) of the Act is divided into three parts: (A) an area of land from
which minerals are extracted; (B) private ways and roads appurtenant
thereto; and (C) a panoply of facilities and structures associated with
the extraction, milling, and preparation of coal and other minerals.
Traditionally, the three subparts of section 3(h)(l) have been
considered separate and discrete so that an entity falling within any
one of the three could generally constitute a "mine" for purposes of the
Act. Donovan v. Carolina Stalite Co., 734 F.2d 1S47 (D.C. Cir. 1984).
Such a reading of the definition has led the Secretary here to argue
Mine Act jurisdiction over Penelec's SA and SB head drives since they
are "equipment" used in "the work of preparing coal" which is in turn
defined in section 3(i).
A plausible alternate reading of section 3(h)(l) would hold that
subparts (B) and (C) are subordinate to subpart (A), i.e., that the
facilities and structures referred to in (C) are those associated with
the "area of land" referred to in (A). This alternate reading of
section 3(h) (1) is more clearly reflected in the definition of "coalmine," section 3(h)(2), derived verbatim from the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C. § 801 et seq. (1972).
Close analysis of section 3(h)(2) indicates that the facilities
listed therein are all delimited by a geographical referent: the "mine"
as that is generally and traditionally understood. Stripped of all
extraneous language except that necessary for discussion here, section
3(h)(2) would read as follows:
Coal mine means an area of land and all ...
facilities •.• placed upon ... or above the surface
of such land •.. used in the work of extracting ...
bituminous coal .•. and the work of preparing the
coal ... and includes custom coal preparation
facilities.
Put another way, the definition could be viewed as a pyramid, the
delimiting and all-encompassing base of which is "an area of land" and
the apex of which is "custom coal preparation facilities."
To date the Commission has not exercised strict adherence to the
traditional interpretation of "coal or other mine." If it had, Oliver
W. Elam, Jr. Co., 4 FMSHRC S (January 1982) would have been decided
differently. In Elam the Commission held that a commercial dock loading
operation that broke and crushed coal for easier loading was not a
"mine" even though, by a strict reading of sections 3(h)(l) and 3(i), it
was a "facility" and it engaged in "the work of preparing coal" to the
extent that it engaged in "breaking," "crushing" and "loading" coal.
Similarly, strict adherence to the alternative interpretation of
sections 3(h)(l) and 3(h)(2), proferred above, would result in an,overly
circumscribed scope of jurisdiction that would limit Mine Act authority
to those facilities located on the same parcel of land from which the
coal is extracted.
A rational path between the two extremes and one that comports

1575

with Congressional intent is that. devised by the Commission in Elam:
that one looks not only to the facility or activity in question but also
"into the nature of the operation performing such activities" Id. p. 7.
In other words, as pithily expressed by Commissioner Doyle in her
earlier dissent, Congress did not intend MSHA "to follow the coal
wherever it might go." 11 FMSHRC 1890.
The "nature" of Penelec's operation is electric power generation.
The feedstock for that power generation could be oil, gas, uranium, culm
or coal. The fact that coal was the chosen feedstock here does not
compel a conclusion that the SA and SB head drives constitute a "mine"
for purposes of the Act.
At some point one has to look up from the text of the statute and
view the jurisdictional question through the lens of common sense and
practicality, mindful that Congress intended to regulate a specific and
identifiable sector of commerce by passing the Mine Act. I conclude
that Penelec's coal handling facilities, including the SA and SB head
drives, do not fall within that sector nor within the range of
facilities meant to be included in sections 3(h)(l) and 3(h)(2).
That conclusion is buttressed by the record adduced here. Dual
jurisdiction between OSHA and MSHA at Penelec 1 s Generating Station and
others similarly situated, with its attendant potential for conflicting
compliance requirements, can have negative consequences for safety in
contravention of the Congressional purposes at the heart of both the
Mine Act and the Occupational Safety and Health Act.
Accordingly, upon careful consideration, I would vacate the
citations at issue for lack of jurisdiction and dismiss the proceeding.

1576

Commissioner Doyle, in favor of reversing the decision of the
administrative law judg·e:·
For the reasons set forth in my dissent, a copy of which is
attached, I disagreed with the Commission's earlier determination that
"MSHA possesses statutory authorization to regulate working conditions
associated with Penelec 1 s preparation of. coal •.• 11 11 FMSHRC 1875, 1882
(October 1989). Nothing in either the administrative law judge's
decision on remand or the decision affirming that decision dissuades me
from my earlier view that the operations cited by the Secretary are not
subject to the jurisdiction of the Mine Act. Accordingly, I would
reverse the judge and dismiss the case against Penelec.

g~.d,~(z
Commissioner

1577

Commissioner Doyle, dissenting:
The respondent, Pennsylvania Electric Company ("Penelec"), is the
rator of an electric power generating station and has for some years
been doing on-site processing of some of the coal used at of its generating station, in order to insure compliance with EPA emission standards,
issued in 1977. The coal conveyor cited in this case transports coal
received from the Helen and Helvetia Mines between bins on the generating
station grounds, most of the coal eventually going to the cleaning plant.
Trucked coal is transported on different conveyors with only the run-ofmine portion being diverted to the cleaning plant.
o~

In January 1988, MSHA for the first time inspected the head drives
of the SA and SB conveyors and sometime thereafter an ~SHA district
manager advised Penelec that MSHA was also asserting jurisdiction over
additional areas of the power plant.
The case before us deals only with alleged violations with respect
to the head drives and was submitted on stipulated facts. The administrative law judge found in favor of MSHA and Penelec petitioned for
review, asserting that it was not subject to the Mine Act based on:
1.

The plain language of the statute and its
legislative history;

2.

Its work not being that usually performed
by an operator of a coal mine;

3.

Its being the ultimate consumer of the coal.

The majority of the Commission finds that the processes performed
at Penelec's plant "are performed to prepare the coal to meet particular
specifications and emission requirements" and are thus "activities •••
usually performed 'by custom preparation facilities, undertaken to make
coal suitable for a particular use or to meet market specifications."'
Slip op. at 6. The majority also finds Penelec's work to he "the type
of work 'usually done by the operator of [a] 'coal mine.'" Slip op. at
7. They discount any exemption for the ultimate consumer of coal and,
based on the language of the statute, conclude that the Secretary "properly could decide to make mine safety standards applicable to the
disputed area." They are, however, unable to determine from the record
whether the Secretary has made such a determination. Slip op. at 8.
The majority cites numerous factors both wit.-4.n and out-side of the
record that show conflicting indications as co which agency in the
Department of Labor exercises safety and health authority over operations such as Penelec's. Because of this ambiguity, they remand the
matter to the administrative law judge for the taking of further
evidence on the jurisdictional question and the entry of a new
decision.

1578

I disagree that the head drives of the SA and SB conveyors fall within the definition of a "coal mine" as set forth in the Mine Act or that
they are subject to that juri~diction simply because, in some instances,
they convey run-of-mine coal to the preparation plant, as opposed to conveying processed coal.
I further believe that the case should be decided
on the record before us rather than being remanded for the taking of additional evidence.
Section 3(h), 30 U.S.C. §802(h), states:
"coal or other mine" means (A) an area of land from which
minerals are extracted in nonliquid form or, if in liquid form,
are extracted with workers underground, (B) private ways and
roads appurtenant to such area, and (C) lands, excavations,
underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools,
or other property including impoundments, retention dams,
and tailings ponds, on the surface or underground, used
in, or to be used in, or resulting from, the work of extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers underground, or used in, or to be used in, the milling of such
minerals, or the work of preparing coal or other minerals,
and includes custom coal preparation facilities. In making
a determination of what constitutes mineral milling for purposes of this Act, the Secretary shall give due consideration
to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect
to the health and safety of miners employed at one physical
establishment;
(2) For purposes of titles II, III, and IV, "coal mine"
means an area of land and all structures, facilities,
machinery, tools, equipment, shafts, slopes, tunnels, excavations, and other property, real or personal, placed upon,
under, or above the surface of such land by any person, used
in, or to be used in, or resulting from, the work of extracting in such area bituminous coal, lignite, or anthracite from
its natural deposits in the earth by any means or method, and
the work of preparing the coal so extracted, and includes
custom coal preparation facilities.
(1)

The "work of preparing coal" is defined· in section 3(i), 30 U.S.C.
§802(i), as follows:

1579

[i] "work of preparing the coal" means the breaking, crushing,
sizing, cleaning, washing, drying, mixing, storing and loading
of bituminous coal, lignite, or anthracite, and such other
work of preparing such coal as is usuallydone by the operato ...
of the coal mine.
A portion of the legislat1ve history pertaining to these sections
has been widely quoted in determining Mine Act coverage. That language
states that the definition of a mine is to be given the broadest possible interpretation and that doubts should be resolved in favor of
inclusion. However•. examination of that entire passage of the
legislative history indicates a context in which Congress was contemplating regulation of mines in a more traditional sense. The complete passage reads as follows:
Thus, for example, the definition of 'mine' is clarified
to include the areas, both underground and on the surface,
from which minerals are extracted (except minerals extracted
in liquid form underground), and also, all private roads and
areas appurtenant thereto. Also included in the definition
of 'mine' are lands, excavations, shafts, slopes, and other
property including impoundments, retention dams, and tailings
ponds. These latter were not specifically enumerated in the
definition of mine under the Coal Act. It has always been the
Committee's express intention that these facilities be included
in the definition of mine and subject to regulation under the
Act, and the Committee here expressly enumerates these facilities within the definition of mine in order to clarify its intent. The collapse of an unstable dam at Buffalo Creek, West
Virginia, in February of 1972 resulted in a large number of
deaths, and untold hardship to downstream residents, and the
Committee is greatly concerned that at that time, the scope
of the authority of the Bureau of Mines to regulate such
structures under the Coal Act was questi.oned. Finally, the
structures on the surface or underground, which are used or
are to be used in or resulting from the preparation of the
extracted minerals are included in the definition of 'mine'.
The Committee notes that there may be a need to resolve jurisdictional conflicts, but it is· the Committee's intention that
what is considered to be a mine and to be regulated under this
Act be given the broadest possibly [sic] interpretation, and it
is the intent of this Committee that d01•bts be resolved in favor
of inclusion of a facility within the ccverage of-the Act." s.
Rep. No. 95-181, 95th Cong., 1st Sess. 14 (1977), reprinted in
U.S. Code Cong. & Admin. News 1977, 3401, 3414.
While that language is expansive, it is mine oriented, and it cannot be
forgotten that the Act was intended to establish a "single mine safety

1580

and health law, applicable to all minin~ activity." S. Rep. No. 461,
95th Cong., 1st Sess. 37 (1977) (emphasis added). "The statute is
aimed at an industry with an acknowledged histor•;- of serious accidents."
Marshall v. Stoudt's Ferry Preparation Co., 602 1'' .. 2d 589, 594 (3d Cir.
1979). There is no indication of any intention to follow the coal
wherever it might go and certainly no indication that Congress intended
to regulate other industries such as electric utilities or steel mills
as only recently asserted by the Secretary. 1/ Indeed, the courts have
recognized that it is "clear that every company whose business brings it
into contact with minerals is not to be classified as a mine within the
meaning of section 3(h)." Donovan v. Car6lina Stalite Co., 734 F.2d
1547, 1551 (D.C. Cir. 1984).
I recognize that, in addition to considering Congress' concerns
as set forth in the legislative history, deference is generally to be
accorded interpretations by the agency charged with enforcing the law.
Here, however, the record contains no evidence that, since the Mine Act
.became effective in 1978, the Secretary has made any previous attempt,
either by the issuance of regulations or otherwise, to include electric
power plants within the Act's coverage or to put the operators of such
facilities on notice of liability under the Mine Act. Nor does the
record indicate that the efforts of a district manager to bring Penelec 's facility within its coverage represents anything more than
the district manager's own personal interpretation of the Mine Act.
It should be noted that the Secretary's counsel stated at oral argument that resolution of this case rests solely on the language of the
Mine Act itself, which he asserted mandates coverage, and has nothing to
do with deference to the Secretary's interpretation of the Mine Act. Tr.
32, Oral Argument, June 28, 1989. It is not surprising that the Secretary eschews deference to her interpretation of this portion of the Mine
Act since the Secretary's policy wlth respect to whether electric
utilities come within Mine Act coverage has been exhibited in a variety
of ways as follows:
1. Her implied interpretation that coal handling at electric
power generating stations does not come within the Mine Act, based on
her failure to assert such jurisdiction for approximately ten years
after passage of the Mine Act.

1/
This position was advanced by the Secretary during oral argument before the Commission in Westwood Energy Properties v. Secretary of Labor,
MSHA, PENN 88-42R, Tr. 26, June 28, 1989.

1581

2.

Her position as set forth in an earlier Commission case that:
MSHA traditionally has not inspected power plants. Although the Secretary is not able to cite to a particular
memorandum incorporating this policy, MSHA and its predecessors have consistently found the production of power
to be outside the jurisdiction of the agency.
MSHA has taken into account that a portion of the
process utilized to produce electric power from coal
requires handling and processing coal hut has determined that those activities are subsumed in the
specialized process utilized to produce electric power,
and that the overall power plant process is more feasibly
regulated by OSHA.

Utility Fuels Inc., Docket No. CENT 85-59 (Sec. Motion to Dismiss,
November 29, 1985).
3. Her position that coal handling at electric utilities comes within coverage of the Mine Act, as asserted in this case.
4. Her position that coal handling at electric power generating
facilities is governed by the OSHAct, as set forth in regulations
recently proposed by OSHA for the operation and maintenance of electrical
power generation facilities, which regulations include detailed provisions
governing coal handling and processing at those facilities. 54 Fed. Reg.
4974-5024 (1989).
5. Her position that OSHA's proposed rules would apply only to
electric generating facilities using already processed coal arid that
facilities using run-of-mine coal would be subject to Mine Act juris-·
diction, as asserted by her counsel at oral argument before the Commission in this case. Tr. 24, 29, 33, Oral Argument, June 28, 1989. :!;/
Because her interpretations have been neither longstanding nor consistent, any deference that would ordinarily be due to the Secretary in
interpreting the Mine Act is not appropriate to this instance. See,
e.g., I.N.S. v. Cardozo-Fonseca, 480 U.S. 421 (1987); American Mining
Congress v. EPA, 824 F.2d 1177, 1182 (D.C. Cir. 1987); Sec. v. BethEnergy Mines, 11 FMSHRC 1445, 1451 (August 1989); Sec. v. Florence
Mining Co., 5 FMSHRC 189, 196 (February 1983).

2/
Since some conveyors in Penelec's operation transport coal that meets
the emission standards without further processing, those conveyors would,
under this theory, presumably remain subject to OSHA jurisdiction rather
than MSHA jurisdiction, a position that seems to belie that any consideration was given "to the convenience of administration resulting
from the delegation to one Assistant Secretary of all authority with
respect to the health and safety of miners employed at one pllysical
establishment," as required by Section 3(h) of the Mine Act, 30 U.S.C.
§802(h)(l).

1582

I also view the Commission's holding today as inconsistent with
our precedent.. The Commission previously found that a commercial dock
in which coal was stored, broken and crushed did not fall within the
coverage of che Mine Act because the coal preparation was not done to
"meet customers' specifications nor to render the coal fit for any particular use." MSHAv. Oliver M. Elam, Jr., Co., 4 FMSHRC 5, 8 (January
7, 1982). After noting that the Commission had concluded in Elam that
the Mine Act requires an inquiry "not only into whether the operation
performs one or more of the listed work activities [in section 3(i)],
but also into the nature of the operation performing such actlvities,"
the Commission today avoids an examination of the nature of Penelec's
operation and finds that, because the station's coal must meet "particular specifications and emissions requirements," an electric power
generating plant is really a coal mine. Slip op. at 6.
(emphasis in original).
I am unable to find any basis in either the statute or the legislative history for the distinctions made by either the Secretary (if the
conveyor belt moves processed coal, OSHAct governs; if it moves run-ofmine coal, Mine Act governs) or the Commission majority (if coal
processing is done other than to meet customer specifications, np Mine
Act coverage; if coal is processed to meet "particular specifications,"
Mine Act coverage) nor do I see that these distinctions have anything
to do with the Mine Act's overall aim, which is to regulate the safety
and health of miners. Rather, I think these artificial distinctions
have arisen as a result of various words and phrases of Mine Act
definitions having been examined in isolation, with no consideration
being given to Congress' overall aim, and with no consideration being
given to the Commission's language in Elam, supra, that requires inquiry
into "the nature of the operation" as well as examination of the particular operations being performed. 3/ Had Congress wanted to regulate not
only mines but electric power generating stations, steel mills and other
coal consumers, I think it would surely have given some indication of
that intent.

3/
As noted by the United States Court of Appeals for the District of
Columbia Circuit, statutes "must be interpreted in light of the spirit
in which they were written and the reasons for their enactment." General
Serv. Emp. U. Local No. 73 v. N.L.R.B., 578 F.2d 361, 366 (D.C. Cir.
1978). In the same vein, .Judge Learned Hand observed that "the duty
of ascertaining [the} meaning [of a statute} is difficult at best and
one certain way of missing i t is by reading i t literally ••• " See
Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 326 F.2d
841, 845 (2d Cir. 1963).

1583

In determining what constitutes a "coal mine" as defined by the
Mine Act, the majority also dismisses out of hand the precedential value
of any cases decided under the Rlack Lung Benefits Act. 30 U.S.C.§901
et seq. (1982). I do not believe those cases can be so lightly dismissed. The majority has determined that these cases lack precedential
value because "black lung benefits are financed by a trust, funded by a
tax on 'coal sold by producers,'" whereas "the Mine Act's goal is to
assure safe and healthful working conditions for the nation's miners."
Slip op. at 8, n. 7. "Under the Mine Act 'coal mine' is defined in
broad terms to better effectuate the salutary effects of that goal."
Slip op. at 8, n. 7~ In fact, the definition of "coal mine" set forth
in section 3(i) of the Mine Act specifically applies not only to the
Mine Act but also to the Black Lung Benefits Act. I find nothing in
the Mine Act, the Black Lung Benefits Act or the legislative history
that suggests the term is to be construed differently for purposes of
determining Mine Act coverage than in determining Black Lung benefits
coverage. And while the majority quotes the court in Stroh v. Director,
Office of Workers' Compensation Programs, 810 F.2d 61 (3d Cir. 1987) to
the effect that the function of a miner seeking black lung benefits
should be "integral to the ..• preparation of coal, not ancillary to the
delivery and commercial use of processed coal" (slip op. at 8, n. 7) as
additional evidence of the irrelevance of the Black Lung cases, I view
the test developed by the Stroh court and other courts for eligibility
for Black Lung benefits as quite relevant in determining when an operation falls within the definition of a "coal mine" as set forth in the
Mine Act. 4/ In fact, the United States Court of Appeals for the Third
Circuit, in deciding a black lung case, made specific reference to its
earlier holding in Marshall v. Stoudt's Ferry Preparation Co., 602 F.2d
589 (3d Cir. 1979), a Mine Act case, as authority for its construction of
the terms "coal mine" and the "work of preparing coal." Dowd v •. Director,
OWCP, 846 F.2d 193, 195 (3d Cir. 1988).

4/
The test set forth is Stroh and earlier cases for determining
eligibility for black lung benefits involves a two-prong test, the
first being a "situs" test, which requires work'in or around a coal
mine or coal preparation facility and has required the courts to
construe the terms "coal mine," and "work of preparing coal" as defined in section 3 of the Mine Act. The second ryrong is the "function"
test referred to by the majority, which require~.b that the ..claimant's
job be "integral to the extraction or preparatL:1 of coal, not ancillary
to the delivery and commercial use of pr.ocessed coal." It should be
noted that, if one agrees with the Secretary and the majority that
Penelec's operations include "coal preparation," those of Penelec's
employees who work in such preparation would fall within the definition of "miner" set forth in the Black Lung Benefits Act, i.e., " •••
any individual who works or has worked in or around a
coal
preparation facility in the ••• preparation of coal.'' 30 U.S.C. §902(d~

1584

The Secretary also asserts that the Black Lung cases are of no
avail to Penelec because they involve "the handling of coal that
already had been preparec.' Sec. br. at 14. I believe the Secretary
misreads those cases. In the cases to which she refers, the courts have
made the determination, .as part of their construction of the terms "coal
mine" and "the work of preparing coal," that once coal has entered the
stream of commerce or reached the ultimate consumer, coal preparation
has been completed and that, thus, the facilities at which those
claimants worked did not fall within the definitions of "coal mine" or
"work of preparing coal" set forth in sec;tions 3(h) and 3(i) of the Mine
Act. Based on their determination that the term "coal preparation"
was much narrower in scope, the claimants were found ineligible for
benefits. In Eplion v. Dir., OWCP, 794 F.2d 935 (4th Cir. 1986), cited
by the Secretary, the mine operator washed coal for a second time because of dust complaints. Because the washing was "not necessary for
processing of the coal into its marketable form," the court declined to
extend the definition of a "coal mine" to include that facility. Eplion
v. Director, OWCP, supra, at 937. (emphasis added). Likewise, the court
in Southard found that the "preparation of coal occurs precedent to its
retail distribution and consumption." Southard v. Director, OWCP, 732
F.2d 66, 69 (6th Cir. 1984). Accord Director, OWCP v. Ziegler Coal
Co., 853 F. 2d 529, 536 (7th Cir. 1988); Johnson v. Weinberger, 389
~Supp. 1296 (S.D. W.VA. 1974).
Also, as noted by the Secretary, the Third Circuit in Dowd, found
the claimant to be a miner, but in so doing stressed that "the claimant's employer ••• does not consume the coal, and does not utilize coal
to produce a product other than coal." Dowd, supra, at 195. As further
noted by the Secretary, -the court in Str"'Oi1found the claimant to be a
miner but also emphasized that the "processing plant to which Stroh delivered was not an ultimate consumer ••• " Stroh, supra, at 64. Similarly,
the Fourth Circuit in Roberts v. Weinberger found the claimant to be a
miner, stating that coal is extracted and prepared when it is "in condition for delivery to distributors and consumers." Roberts v. Weinberger, 527 F.2d 600, 602 (4th Cir. 1975). These cases, while not
affirmatively holding that coal consumers do not fall within the
definition of "coal mine," expressly limit their holdings to facilities
that are not coal consumers.
As noted above, I believe that, while the definition of "coal
mine" as set forth in the Mine Act is to be broadly interpreted, the
interpretation is not wi thou.t limitations. I am of the opinion that
the plain language of the statute does not bring Penelec's operation
within coverage of the Mine Act, that the legislative history does not
suggest the breadth of coverage asserted by the Secretary and that the

1585

Secretary's interpretation, as set forth in this case, is not entitled
to deference. In addition, I am not convinced that ultimate consumers,
engaged in the producti 'U of a product other than coal, are subject to
Mine Act jurisdiction.
For the foregoing reasons, I would reverse the judge and
dismiss the case against Penelec.

z~1.a~

Commissioner

Distribution
John P. Proctor, Esq.
Scott W. Clearwater, Esq.
Timothv N. Atherton, Esq.
Bishop-, Cook, Purcell & Reynolds
1400 L Street, N.W.
Washington, D.C. 20005
Carl C. Charneski, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Stephen C. Yohay, Esq.
Jones, Day, Reavis & Pogue
1450 G Street, N.W.
Washington, D.C. 20005
Administrative Law Judge Gary Melick
Federal Hine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

1586

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

August 29, 1990
HARRY RAMSEY

v.

Docket No. WEST 88-246-DM

INDUSTRIAL CONSTRUCTORS
CORPORATION
BEFORE:

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

DECISION

BY THE COMMISSION:
In this discrimination proceeding arising under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act"
or Act"), Industrial Constructors Corporation ("ICC"), seeks review of a
decision by Commission Administrative Law Judge John J. Morris
sustaining a complaint of discrimination brought by Harry Ramsey
pursuant to section 105(c)(l) of the Mine Act. !/ In an Interim Order
the judge found that two acts of discrimination by ICC had occurred: the
first, when Ramsey was constructively discharged on August 13, 1987, as
the result of a safety related complaint, and the second, when ICC
subsequently refused to rehire him. 11 FMSHRC 1585 (August 1989)(ALJ).
In a final decision ICC was ordered to pay Ramsey back pay, interest,
attorney's fees and costs. 11 FMSHRC 1988 (October 1989)(ALJ). The
Commission granted ICC's petition for discretionary review. For the
reasons that follow, we reverse the judge's decision.
Complainant Ramsey was employed at ICC's Colosseum gold mine,
located near San Bernadine, California, from May 1987 until August 1987.
With both his prior employer and his own company, Ramsey operated and
hired operators of heavy equipment. At ICC, Ramsey initially opera~ed

lf

Section 105(c)(l) provides in pertinent part:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
[Act].

30 U.S.C. § 815(c)(l).

1587

various types of equipment at the mine site .-nd briefly worked as a
laborer. Tr. 24-36. In June or early July 1987, Ramsey was assigned as
a loader operator to ICC's newly established rock crusher operation, but
actually worked as the crusher operator because the individual hired as
the crusher operator failed to appear for work. On July 18, 1987, he
was reclassified by the foreman, Clifford Morrison, from loader operator
to crusher operator with a pay increase. Exh. C-2, Tr. 37-38, 155.
As a crusher operator Ramsey was located in the control tower, an
8'x8' building, 20 feet in height with windows on all sides, affording
the operator a view of the working area. Tr. 40-42, Exh. C-3. The
duties of the crusher operator were to monitor and insure the continuous
flow of material (rock) into and out of the hopper and to shut down the
crusher whenever the hopper became blocked up or when a problem with the
conveyor belt arose. Tr. 38-40, 44.
Ramsey testified that under normal procedures, when the mechanic
or the foreman noticed a buildup of material, they would inform him by
hand signal of the problem. Ramsey, under the foreman's or mechanic's
instructions, would then alert the three or four workers in the area,
first by a horn signal, as a general alert, and then by hand signals,
directing them to the specific problem area. When all workers were in
view, the machinery was then shut down, and the blockage or spillage
could then be safely removed. Tr. 38-40, 44-45. From a designated area
the mechanic or foreman would also inform him by hand signals when they
wished him to shut off the water spray system, which primarily
controlled dust during production and at times was used to increase the
moisture content of the material being processed. Tr. 47. It is
undisputed that standard operating procedure, shortly before the end of
each production shift, was to clean the buildup of mud from the screens
by turning off the water sprays while keeping the crusher running, thus
allowing the dry material to hit the screens, chip.ping away the mud.
Tr. 55, 160.
On August 12, 1987, Ramsey worked the swing shift, which began
about 4:00 p.m. and ended about 2:00 a.m. the next morning. Ramsey
testified that about 45 minutes before the end of the shift while in
production crushing rock, foreman Morrison gave him a hand signal from
the work area to shut off the water sprays. Ramsey initially failed to
comply, explaining that this was the first shift since the operation had
started that they had "run full production all night"; that production
"had been running smooth all night"; that "we had a heck of a stockpile
of material out there"; and that he was not anticipating any shut down
with 30 to 45 minutes production time still remaining before their
normal shut down time. Tr. 45-46.
When Morrison, after a minute or two, "gave me a real strong
signal again to shut it off, 11 Ramsey then did as directed. Tr. 44-47,
123-24. According to Ramsey, within a few minutes the dust was such
that he "couldn't see the window of the control tower in front of me"
and was unable to see any of the employees. He testified that normal
procedure was to shut down the machinery automatically if the dust was
so thick that you couldn't see at all. Tr. 47-50. After two or three
minutes, he shut down the crusher and he stated that about 5 minutes

1588

later the dust had cleared sufficiently so that he could see "a little
bit," making out "more or less shadows or whatever the equipment is."
Tr. 52. At that point Mo.rrison climbed into the tower and asked why
Ramsey had "shut the plant down." Ramsey responded that if he could not
see after the water was cut off, he could not operate. According to
Ramsey, Morrison replied "I'll tell you when to shut the water on and
when to shut it off." Tr. 54, 59, 124-26.
Morrison left the tower and Ramsey restarted the belt for about
five minutes, the normal procedure used to clean off the screens before
the next shift. Tr. 54-56. Ramsey then met Morrison outside the tower
where he again asked if he (Ramsey) had the "latitude" to turn the water
on and off when he could not "see the people under me", and received the
same reply. Tr. 59-61, 120. The conversation continued and Ramsey
repeated a number of times that if he did not have the "latitude" to
turn the water off, "I wouldn't work for him under those conditions,"
because "it is not safe." Tr. 60-61, 120. Ramsey testified he meant
not working for Morrison, and that it was not his intention to stop
working for ICC. Tr. 61, 116. The judge found, however, that turning
in his hard hat and flashlight and saying he "quit" established that he
did quit. 11 FMSHRC 1589. At about 10:00 a.m. that same day, Ramsey
telephoned mine superintendent Orville Hildebrandt to inform him of the
events and was told by Hildebrandt that he would check into it and get
back to him. About one week later, during which Ramsey did not work, he
was told by Hildebrandt's secretary that there was no work available for
him. Tr. 65-69. Ramsey testified that he has continuously but
unsuccessfully sought employment based on his work experience, sending
out 60-70 resumes or applications. Tr. 81-84. He has worked at other
jobs, operating an unsuccessful novelty sales company, managing a mobile
home park, and working as a "ranger" at a golf course. Tr. 87-89. On
cross-examination Ramsey stated that his understanding with respect to
being hired by ICC was that his employment was to be continuous during a
three-year project, but that there was no specific agreement on that
issue. Tr. 112.
ICC Supervisor Morrison testified that ten or fifteen minutes
before the end of the shift on August 13, he signaled Ramsey to turn off
the water sprays in order to clean the screens. He had personally
insured the safety of all employees by gathering them together with him
or in the parts van, and that all could be seen by Ramsey. Tr. 160-61,
178-79. After turning off the water, Ramsey also turned the crusher
off. Tr. 160. Morrison also testified that Ramsey had authority to
shut down if the employees could not be seen by him. Tr. 160-61.
Morrison believed the disagreement with Ramsey was over the authority to
shut off the water, not to shut down the crusher. Tr. 162. He stated
that outside the tower Ramsey handed him his hard hat and flashlight and
said he quit, and that Morrison then said nothing, but walked away.
Tr. 162. He stated there was never any dispute that Ramsey had
authority to shut down the crusher for safety reasons. Tr. 163. In his
opinion, visibility that night never reached a dangerous extent, and he
could always see Ramsey in the tower. Tr. 165-66.
Dick Nash, ICC personnel manager, testified that the crusher
operations were completed in September 1987, and that Morrison, together

1589

with everyone on the crusher night shift, was terminated on
September 25, 1987, and everyone on the day shift, one day later.
Tr. 200-03. Mine Superintendent Hildebrandt testified that he decided
not to rehire Ramsey because of the August 12 incident and because of an
earlier incident in which Ramsey had complained to him and threatened to
quit in a disagreement with another supervisor about the correct method
of using the bucket on a loader so as to not damage the equipment. Tr.
246-48.
On August 30, 1987, Ramsey filed a complaint of discrimination
with the Department of Labor's Mine Safety and Health Administration
("MSHA"), and on June 14, 1988, the Secretary of Labor filed a
discrimination complaint on behalf of Ramsey pursuant to 30 U.S.C.
§ 815(c)(2).
On October 20, 1988, counsel for the Secretary moved to
dismiss that complaint and to permit Ramsey to file a complaint on his
own behalf, pursuant to 30 U.S.C. § 815(c)(3), on the grounds that
Ramsey had refused to accept a settlement offer considered reasonable by
the Secretary. Following retention of counsel by Ramsey, the judge, on
January 23, 1989, granted the Secretary's motion and the matter
proceeded to hearing. ~/

In upholding Ramsey's complaint of discrimination, the judge found
that Ramsey was engaged in a protected activity when he complained to
Morrison about the dusty conditions, which precluded him from seeing the
workers in proximity to the crusher, and concluded that "the facts here
involve a mix of what would occur when the crusher operator turned off
the crusher and/or the water. The critical point is that Ramsey's
complaint was clearly safety related." 11 FMSHRC at 1595. Quoting
extensively from Ramsey's September 15, 1987 statement to MSHA
investigators, the judge found a good faith concern for the safety of
other miners and a nexus between his complaint and possible injury to
others. 11 FMSHRC at 1595-98. As to whether Ramsey communicated his
complaint to management, the judge concluded:
It is apparent from the record here that the words
spoken encompassed and communicated the safety
hazard. Further, by their very nature safety
complaints often revolve in a heated and
argumentative manner. Compare, Secretary on behalf
of John Gabossi v. Western Fuels-Utah, Inc.,
9 FMSHRC 1481 (1987).
1d. at 1598.
Next, the judge found that Ramsey was constructively discharged in
that "ICC created or maintained conditions so intolerable that a
reasonable miner would have felt compelled to resign," which is the
standard of law applied to constructive discharge under Simpson v.
FMSHRC, 842 F.2d 453 (D.C. Cir. 1988). Further, the judge rejected
~/

The judge's granting of the Secretary's motion effectively
converted the complaint to an action brought pursuant to 30 U.S.C.
§ 815(c)(3).

1590

ICC's reasons for not rehiring Ramsey and held that he was discriminated
against a second time when ICC refused to rehire him. 11 FMSHRC at
1599-1600. Lastly, rejecting ICC's contention that Ramsey along with
all other crusher employees would have been terminated on September 27,
1987, the judge awarded back pay with interest from August 13, 1987, to
August 31, 1989, when Ramsey declined reinstatement under an agreement
between the parties. 11 FMSHRC at 1603.
A miner alleging discrimination under the Act establishes a prima
facie case of prohibited discrimination under the Mine Act by proving
that he engaged in protected activity and that the adverse action
complained of was motivated in any part by that activity. Secretary on
behalf of Fasula v. Consolidation Coal Co., 2 FMSHRC at 2786, 2797-2800
(October 1980), rev'd on other grounds, sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf of
Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981).
The operator may rebut the prima facie case by showing either that no
protected activity occurred or that the adverse action was in no part
motivated by protected activity. If the operator cannot rebut the prima
facie case in this manner, it nevertheless may defend affirmatively by
proving that it also was motivated by the miner's unprotected activity
alone and would have taken the adverse action in any event for the
unprotected activity. Fasula, supra; see also Eastern Assoc. Coal Corp.
v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987); Robinette, supra; Donovan
v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v.
FMSHRC, 719 F.2d 194, 195-96 (6th Cir. 1983)(specifically approving the
Commission's Fasula-Robinette test).
At issue before us here is a work refusal based on an asserted
s&fety hazard to miners other than the complainant himself. In
Secretary on behalf of Philip Cameron v. Consolidation Coal Co.,
7 FMSHRC 319 (March 1985), aff'd sub nom Consolidation Coal v. FMSHRC,
795 F.2d 364 (4th Cir. 1986), the Commission held that 11 in certain
limited circumstances," the protection of section 105(c) of the Mine Act
does attach to a work refusal premised on hazards to others:
Therefore, we hold that a miner who refuses to
perform an assigned task because he believes that to
do so will endanger another miner is protected under
section 105(c) of the Mine Act, if, under all the
circumstances, his belief concerning the danger
posed to the other miner is reasonable and held in
good faith. Bjes v. Consolidation Coal Co.,
6 FMSHRC 1411, 1418 (June 1984), citing Secretary on
behalf of Robinette v. United Castle Co., 3 FMSHRC
at 807-12. We emphasize, however, the need for a
direct nexus between performance of the refusing
miner's work assignment and the feared resulting
injury to another miner. In other words, a miner
has the right to refuse to perform his work if such
refusal is necessary to prevent his personal
participation in the creation of a danger to others.
Of course, as with other work refusals, it is
necessary that the miner, if possible, "communicate,

1591

or at least attempt to communicate, to some
representative of the operator his belief in the .•.
hazard at issue," Sammons v. Mine Services Co.,
6 FMSHRC 1391, 1397-98 (June 1984)(emphasis added),
quoting Secretary on behalf of Dunmire and Estle v.
Northern Coal Co., supra, 4 FMSHRC at 133, and that
the refusal not be based on "a difference of opinion
-- not pertaining to safety considerations -- over
the proper way to perform the task at hand."
Sammons, 6 FMSHRC at 1398.
7 FMSHRC at 324.
Our review of the testimony convinces us that the substantial
evidence of record does not support the judge's conclusion that Ramsey
was engaged in protected activity on August 13, 1987. As this
Commission has consistently recognized, the term "substantial evidence"
means "such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." See, ~· Secretary v. Michael
Brunson, 10 FMSHRC 594, 598 (May 1988), Secretary v. Mid-Continent
Resources, Inc., 6 FMSHRC 1132, 1137 (May 1984) quoting Consolidated
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). We are guided by the
settled principle that in reviewing the whole record, an appellate
tribunal must also consider anything that "fairly detracts" from the
weight of the evidence that may be considered as supporting a challenged
finding and must not sustain a finding "merely on the basis of evidence
which in and of itself justified it, without taking into account
contradictory evidence or evidence from which conflicting inferences
could be drawn ... "Universal Camera Corp. v. NLRB, 340 U.S. 474, 487
(1951).
Ramsey, himself, on direct examination twice testified
unequivocally that he initially refused and then reluctantly complied
with Morrison's signals to turn off the water sprays solely because he
thought production was going so well, that a large amount of material
awaited crushing, and that he considered it too early in the shift to
cut off the water sprays, which was routinely done shortly before the
end of each shift in order to clean the screens. Ramsey also testified
that under Morrison's instructions whenever a potential problem or
safety hazard arose, Ramsey would alert the employees first by a horn
signal, then by hand signals, directing them to an area where they could
be observed by him. Tr. 38-40, 44-45. If, despite his testimony,
Ramsey's reactions to Morrison's signals were safety related, we find it
inconsistent that he did not use the established audio and visual
signals to alert the employees and ensure their safety before any dust
visibility problem arose.
The testimony of both Ramsey and Morrison at hearing consistently
identified the basis of Ramsey's complaint as his "latitude tf turn the
water on or off." The testimony further establishes that Ramsey's
authority to turn off the crusher for safety related concerns was not
challenged. Unlike the judge, we place little reliance on Ramsey's
September 15, 1987 statement to MSHA investigators quoted extensively in
the decision at 1195-97. We view Ramsey's statement as unproved

1592

allegations made in support of his discrire .1ation complaint, and we
consequently cannot accord it sufficient weight to overcome his contrary
testimony adduced under oath at the hearing subject to the rigors of
cross-examination.
In Sammons, supra, this Commission emphasized that in
discrimination complaints involving work refusal, the alleged protected
activity must not be based on a "difference of opinion -- not pertaining
to safety considerations -- over the proper way to perform the task at
hand." 6 FMSHRC at 1398. Ramsey's own testimony makes clear that his
initial refusal and later reluctance to shut off the water sprays were
entirely production oriented. He simply believed it too early in the
shift, with production going well and a large stockpile of raw materials
yet to be processed, to stop production in order to clean the screens
for the oncoming shift. In light of his own testimony, we view Ramsey 1 s
subsequent attempts to link his work refusal with safety related
concerns to be too little, too late, and inconsistent with the facts.
Accordingly, under Cameron, supra, we find that Ramsey 1 s work refusal
was not a protected activity under section lOS(c) of the Mine Act.
For these same reasons we find that Ramsey failed to communicate
to Morrison any true concern with a safety hazard underlying his work
refusal. In so concluding, we recognize that as the judge noted, safety
complaints are often couched in a heated or argumentative manner, and
that a brief, simple communication rather than a detailed statement is
sufficient, so long as it describes the nature of the safety hazard to
the operator. See~· Secretary/UMWA v. Emerald Mines Corp., 8 FMSHRC
1066, 1074, (July 1986), aff 1 d sub nom. Emerald Mines Co. v. FMSHRC, 829
F.2d 31, (3rd Cir. 1987).----r;-this instance however, there was no
communication descriptive of a safety complaint but only a heated
disagreement with a supervisor over Ramsey 1 s "latitude" to shut the
water on and off and who would make the decision to stop production.
See also Conatser v. Red Flame Coal Co., Inc., 11 FMSHRC 12, 17,
(January 1989).
We next address the judge 1 s conclusion that Ramsey was
constructively discharged. In Simpson, supra, the court adopted the
11
objective" standard for establishing constructive discharge, holding
that constructive discharge occurs whenever "a miner engaged in a
protected activity can show that an operator created or maintained
conditions so intolerable that a reasonable miner would have felt
compelled to resign." 842 F.2d at 461. That standard, the court
explained, is the one employed in cases arising under the Civil Rights
Act of 1964 and is the same test employed in adjudicating constructive
discharge cases under other statutes protecting employees against
adverse job actions. 842 F.2d. at 461-62. The cases cited by the court
in Simpson agree that a finding of constructive discharge must
demonstrate "aggravating factors such as a continuous pattern of
discriminatory treatment." Watson v. Nationwide Insurance Co., 823 F.2d
360, 361 (9th Cir. 1987); Clark v. Marsh, 665 F.2d 1168, 1174 (D.C. Cir.
1981). The cases also have consistently emphasized that "a single
isolated instance of employment discrimination is insufficient as a
matter of law to support a finding of constructive discharge." Watson,
supra, 823 F.2d at 361; see also Satterwhite v. Smith, 744 F.2d 1380,

1593

1381, (9th Cir. 1984); Nolan v. Cleland, 686 F.2d 806, 813; (9th Cir.
1982).
In Simpson, the complainant quit his job after the operator had
failed repeatedly over a period of several weeks to perform the required
pre-shift or on-shift examinations or to test for the presence of black
damp, gas, or water in the underground coal mine. The Commission
referred to the operator's repeated failures as "blatant violations of
the Mine Act, 11 (8 FMSHRC at 1038) a description noted by the court in
its finding that S1mpson had been constructively discharged. 842 F.2d
at 463.
Although the judge stated in his decision that he felt constrained
under the Court's holding in Simpson to reach a finding of constructive
discharge, we find no parallel between the working conditions involved
in Simpson and the conditions of August 13 described by Ramsey in this
case. Nor do we see any similarity between the continuous pattern of
misconduct on the part of the operator in Simpson and the single
incident on which this case rests. In sum, we are persuaded by the
testimony of record that Ramsey voluntarily quit his job at the end of
the shift and find no evidence to support a finding that a reasonable
miner would have felt compelled in this instance to resign because of
intolerable conditions created or maintained by operator misconduct as
required under Simpson for a finding of constructive discharge.
On review, ICC also challenges the judge's finding that a second
act of discrimination occurred when ICC refused to rehire Ramsey after
August 13, 1987. If Ramsey's work refusal constituted protected
activity under the Mine Act, ICC's refusal to rehire him would be a
second unlawful act of discrimination if the evidence demonstrated that
the refusal was based on that protected activity. Simpson, 842 F.2d at
454, 464. If Ramsey's work refusal did not constitute protected
activity, ICC's refusal to rehire him would be discriminatory only if
the evidence established "some nexus to protected activity." 842 F.2d
at 464. Rejecting ICC's arguments that Ramsey was not rehired because
of two non-safety related disagreements with supervisors, the judge
found that the incident of August 13, 1987 involved protected activity
and that ICC's refusal to rehire Ramsey was therefore a second act of
discrimination.
Because we have found that Ramsey's work refusal of August 13 was
not a protected activity, a finding of discriminatory conduct in ICC's
refusal to rehire him must rest on evidence establishing "some nexus"
with other protected activity. Other than the August 13 incident,
however, no other protected activity is alleged. As the judge noted at
11 FMSHRC 1593, n. 3, Ramsey's earlier complaint to Hildebrandt alleged
that supervisor Brown's instructions as to how the loader should be
operated would result in damage to the equipment and was not safety
related. Absent any nexus with other protected activity, we find no
evidence to support the judge's finding that ICC discriminated against
Ramsey for a second time when it refused to rehire him.

1594

Accordingly, we reverse the judge's findings that Ramsey engaged
in protected activity and was constructively discharged. We also
reverse his finding that ICC's refusal to rehire Ramsey constituted a
second act of discrimination. }/

}/

Commissioner Lastowka elected not to participate in this decision.

1595

Distribution
Michael T. Heenan, Esq.
Ronald E. Heisburg, Esq.
Smith, Heenan & Althen
1110 Vermont Avenue, N.W.
Suite 400
Washington, D.C. 20005
William T. Murphy, Esq.
Washington Corporations
101 International Way
Missoula, Montana 59802
Norman J. Reed, Esq.
Nathaniel J. Reed, Ltd.
1405 S. Maryland Pkwy.
Las Vegas, Nevada 89104
Administrative Law Judge John J. Morris
Federal Hine Safety and Health Review Commission
280 Colonnade Center
1244 Speer Boulevard
Denver, Colorado 80204

1596

ADMINISTRATIVE LAW JUDGE DECISIONS

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

AUG 21990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-12
A.C. No. 46-03805-03933

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Vi.rginia, for
the Petitioner;
Rebecca J. Zuieski, Esq., FURBEE, AMOS, WEBB &
CRITCHFIELD, 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 a civil penalty assessment in the amount of $850 for an
alleged violation of mandatory safety standard 30 C.F.R.
§ 77.807-3, as stated in a section 104(d) (2) "S&S" Order
No. 2944317, served on the respondent by an MSHA inspector on
May 22, 1989. The respondent filed a timely answer contesting
the alleged violation and a hearing was held in Morgantown,
West Virginia. The parties filed posthearing briefs, and I have
considered their arguments in my adjudication of this matter.
Issues
The issues presented in this case are (1) whether the
condition or practice cited by the inspector constitutes a
violation of the cited mandatory safety standard, (2) whether the

1597

alleged violation was "significant and substantial" (S&S),
(3) whether the violation was the result of the respondent's
unwarrantable failure to comply with the cited standard, and
(4) the appropriate civil penalty to be assessed for the violation, 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 seg.
2.

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

3.

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

§

820(i).

Stipulations
The parties stipulated to the following (Tr. 8-10, exhibits
P-1, P-1-A, P-2):
1. The respondent is the owner and operator of
the Martinka Mine, and the operations of the mine are
subject to the Act.
2. The presiding judge has jurisdiction to hear
and decide this matter.
3. MSHA Mine Inspector Spencer Shriver was acting
in his official capacity when he issued the contested
order, and a true copy of the order was served on the
respondent or its agent as required by the Act.
4. A copy of an MSHA's Proposed Assessment Data
Sheet (exhibit P-1), which sets forth (a) the number of
assessed non-single penalty violations charged for the
years 1986 through February, 1989, (b) the number of
inspection days per month in said period and (c) the
mine and controller tonnage for year 1988, is admitted
for the record in this case, and the respondent has no·
facts to contradict the accuracy of this information.
5. The respondent does not contest the fact that
the Martinka Mine has not had a complete inspection
free of unwarrantable violations since the issuance of
Citation No. 0859286 dated September 1, 1981.
6. A prior violation alleging a violation of
section 77.807-3, was issued to the respondent at the
Martinka Mine on or about February 2, 1989.

1598

7. A copy of an MSHA computer print-out reflecting the history of prior assessed violations issued at
the Martinka No. 1 Mine for the period May 30, 1987
through May 29, 1989, may be admitted as part of the
record in this case (Tr. 10, exhibit P-1-a).
8. Assuming the petitioner establishes that a
violation of section 77.807-3, occurred in this case,
the parties agree that the violation is significant and
substantial (S&S) (Tr. 28).
Discussion
This case concerns a section 104(d) (2) "S&S" Order
No. 2944317, issued on May 22, 1989, by MSHA Inspector Spencer
Shriver, alleging a violation of mandatory safety standard
30 C.F.R. § 77.807-3. The cited condition or practice states as
follows:
At about 11:30 a.m., on May 19, 1989, an electrical accident occurred at the North Mains drift substation, while spreading gravel north of the substation
fence, an LTL 9000 Ford triaxle truck operated by
Robert Radabaugh of Radabaugh Trucking Inc., contacted
an energized 34,500-volt powerline with the elevated
bed of his truck. None of the truck drivers on this
job had received hazard training on maintaining clearance from high voltage lines. There were no plans or
prints available at the job site giving the height of
the powerline above ground. Also, Citation No. 3106019
was issued by Edwin w. Fetty on February 2, 1989, for
failure to maintain 10 fe·et clearance of 34, 500-volt
circuit over trucks with elevated beds at the refuse
area. This should have caused mine managem·ent to take
effective action to prevent contact of truck beds with
high-voltage lines.
Petitioner's Testimony and Evidence
MSHA Inspector Spencer A. Shriver testified that he is an
electrical engineer and holds bachelor's and master's degrees
from the West Virginia University. He confirmed that he went to
the mine on Friday, May 19, 1989, after his supervisor informed
him that a dump truck had contacted a high voltage line, and when
he arrived at the mine he met Paul Zanussi, a company safety
representative, and he confirmed that an accident had occurred.
Mr. Spencer stated that he observed a Ford tri-axle dump truck
under the high voltage line, and that several tires had been
apparently blown out by the electrical contact with the line. A
mechanic for the trucking company was changing the tires to
prepare the removal of the truck. Mr. Spencer concluded that a

1599

violation of section 77.807-3, occurred because section 77.807-2,
prohibits the operation of equipment within 10 feet of an energized overhead powerline~ and if this should occur, section
77.807-3, requires the powerline to be deenergized or other
precautions. Since the truck contacted the powerline, resulting
in considerable damage to the truck, he concluded that a violation had occurred (Tr. 13-17).
Mr. Shriver spoke with the respondent's project engineer,
James Barton, and to the foreman of the general contractor, Mike
Powers, who were eye witnesses to the incident. Mr. Barton told
him that he had observed three or four trucks "tailgating gravel"
through the area in question, and that the last truck through,
which was driven by Robert Radabaugh, contacted the overhead
neutral line with the truck bed overhang, pulling the two wooden
support structures close together, and when the phase conductors
dropped down and contacted the truck, a "fairly spectacular short
circuit" occurred (Tr. 18).
Mr. Shriver stated that Mr. Powers informed him that he was
following the trucks, and was positioned to the left of
Mr. Radabaugh's truck watching the flow of gravel out of the
truck, and he explained that as the truck's continue travelling
and laying down a layer of gravel, the driver has to continue
raising the truck bed to keep the gravel flowing out. Mr. Powers
was observing the truck in question to make sure that the gravel
was not being spread too thick or too thin, and he was also
watching for contact with high voltage lines. When Mr. Powers
saw that the truck bed had hooked the overhead neutral conductor,
he signaled for Mr. Radabaugh to stop, and another driver yelled
for him to stop. However, before stopping, Mr. Radabaugh's truck
pulled the support structures together, and the conductors
dropped down and contacted the truck resulting in a short circuit
(Tr. 19) .
Mr .. Shriver stated that Mr. Radabaugh was taken to the
hospital as a precautionary measure, and that he spoke with him
3 days later when he was back at the job site. Mr. Radabaugh
confirmed that Mr. Powers was following behind him giving him
hand signals, and he also confirmed that he was told not to drive
past a wooden footbridge across a gully near the one-pole structure which supported the overhead powerlines. Mr. Radabaugh also
stated that when he was near the northeast corner of the substation, he became concerned that he would go over the bank and
was standing up in the cab of his truck in order to look out over
the engine to see how close he had come to the bank, and that
while doing so hooked the neutral conductor which resulted in the
short circuit (Tr. 20). Mr. Shriver identified a memorandum
which he prepared for the MSHA district manager concerning his
accident investigation findings, and a copy of his notes and a
sketch of the accident sketch which he prepared (exhibits P-5
through P-7).

1600

Mr. Shriver believed the violation resulted from an unwarrantable failure on the part of the respondent because it did not
know how high the voltage line was above the ground, did not know
how close the trucks could come to the high voltage line, and did
not know how high the truck bed would be when it was fully
raised. He confirmed that Mr. Barton had no knowledge of any of
this information, and although they found several prints or
drawings of the area in the contractor's trailer, they did not
show how high the voltage line was above the ground. Mr. Shriver
believed that the respondent was negligent for not having this
information. He also confirmed that another MSHA electrical
inspector (Fetty) had previously issued a citation at the site on
February 2, 1989, because a truck was under the same voltage
line, within 10 feet of the line, and that this should have
caused the respondent to take steps to insure that no vehicles
are within 10 feet of the line (Tr. 29).
Mr. Shriver stated that when he previously worked for a
power company, any time vehicles were in the area of high voltage
lines, he knew the height of the truck and the lines, and that if
there were any questions about this, someone would be assigned to
stop a vehicle before it got too close to a line, or barricades
or flagged and roped barrels would be put up to warn a driver
(Tr. 3 0) •
Mr. Shriver stated that Mr. Barton did not inform him how
long he had been present at the site, or whether it was .his first
visit there. Mr. Shriver confirmed that when he spoke with
Mr. Radabaugh and his brother, they informed him that they had
not received any hazard training with respect to overhead lines.
However, the following Monday after the accident, a company
official gave all of the truck drivers hazard training concerning
overhead powerlines (Tr. 31).
On cross-examination, Mr. Shriver stated that with respect
to the "other precautions shall be taken" language found in
section 77.807-3, and assuming that one knew that a truck would
come within 10 feet of an energized powerline, he would expect a
barricade with a rope or flags to be installed so that a truck
could not pass through the area, or as a minimum precaution,
someone should be stationed in the area so that he could stop the
truck. Any such precautions would have to be as effective as
deenergizing the powerline (Tr. 32).
Mr. Shriver confirmed that his notes reflect that Mr. Powers
told him that he had instructed Mr. Radabaugh not to go past a
wooden footbridge near the last pole of the high voltage circuit,
which would have kept the truck bed about 15 feet from the power
conductors, and that Mr. Radabaugh admitted that he had received
this 1nstruction (Tr. 34). Mr. Shriver also confirmed that

1601

Mr. Powers ·told Mr. Radabaugh not to go beyond the wooden footbridge so that he would not contact the powerline, and if
Mr. Radabaugh had not gone beyond that location, he would not
have contacted the power conductors (Tr. 36).
Mr. Shriver confirmed that he issued the contested section
104(d) (2) order to the respondent, and also issued section 104(d)
citations to Radabaugh Trucking and the contractor (Coal Fuel
Services), and that they were all essentially identical (Tr. 37).
He also confirmed that he was not familiar with MSHA's hazard
training policies, and that he included the lack of training as
part of his order because Mr. Radabaugh contacted the powerline
and told him that he had not been trained. Although Mr. Shriver
issued no citation for failing to hazard train Mr. Radabaugh, he
considered the lack of training as part of his unwarrantable
failure finding because he believed the driver needed training
because he contacted the powerline (Tr. 41).
Mr. Shriver confirmed that he issued a section 107(a) imminent danger order to the contractor, Coal Field Services, and
that he did indicate to respondent's personnel on the day of the
accident that he did not believe that the respondent was negligent. He concluded that the respondent was negligent on the
Monday following the accident after again speaking with
Mr. Powers, Mr. Barton, and Mr. Radabaugh, and with his supervisor and MSHA's chief of engineering services (Tr. 44).
Mr. Shriver confirmed that the prior citation issued by
Inspector Fetty was one of the factors on which he based his
unwarrantable failure finding, and that the other factor was the
fact that Mr. Barton, the respondent's project engineer, was
watching Mr. Radabaugh bring gravel under the high voltage line
(Tr. 44). Mr. Shriver acknowledged that Mr. Fetty•s prior citation concerned one of the respondent's trucks operating in the
mine refuse area, and he assumed that the driver was employed by
the respondent and under the control of one of its supervisors.
He believed that both situations were "similar enough" because
once the respondent was on notice of the danger of a truck
getting into a powerline it should have been alerted by the prior
citation and taken effective steps to preclude this from happening again (Tr. 45).
Mr. Shriver acknowledged that he was aware of the fact that
the general contractor's employee, Michael Powers, was directly
supervising the hauling and dumping of gravel, and that Radabaugh
Trucking was the subcontractor hired directly by the general
contractor (Tr. 46). Mr. Shriver confirmed that Mr. Radabaugh
told him that he had been involved in a prior incident of contacting a high tension line with his truck, and that he knew he
should not leave his truck when such contact is made (Tr. 47).

1602

Mr. Shriver defined an unwarrantable failure as follows: "it
is aggravated negligence or conduct on the part of the operator.
I think the question of repeat violations enters into it and
knowing that something occurred and failing to take some effective action to stop an accident" (Tr. 48).
In response to further questions, Mr. Shriver stated that
the powerline in question was approximately 27 feet 4 inches
above the ground, and that the height of the truck bed when fully
raised was 24-1/2 feet. The neutral wire was 4 to 5 feet under
the other wires, and the overhang of the front of the truck bed
hooked the neutral wire. The neutral wire is not considered a
high voltage wire because it is basically at ground potential and
carries no voltage. However, the bed of the truck, when it is
fully raised, would contact the neutral wire, and if it did, it
would be within 10 feet of the high voltage line. If the truck
bed had not been raised, it would not have contacted the neutral
wire, and other trucks had already passed under the wires (Tr.
53-54).
Mr. Shriver confirmed that the instructions to Mr. Radabaugh
not to go beyond the footbridge were given so that he would not
be within 10 feet of the powerline. He had no reason to believe
that the instructions were not given, and Mr. Radabaugh admitted
that he was so instructed (Tr. 56). With regard to Mr. Petty's
prior citation, Mr. Shriver confirmed that it did not involve any
truck contact with a powerline, and that the trucks wer'? simply
within 10 feet of a high voltage line (Tr. 56). A copy of this
prior citation, (exhibit P-8), reflects that the cited trucks
were parked in a raised position directly under energized high
voltage transmission lines near the refuse bin, and the citation
is a section 104(a) "S&S" citation, with a moderate negligence
finding (Tr. 58).
Mr. Shriver confirmed that the height of the high voltage
line itself was in compliance with the required standard, and if
a truck had driven under it without the bed raised, there would
be no chance of contact with the wire, and it would be in compliance. However, in the instant case, the truck, with its bed
raised, contacted the neutral wire and pulled it down, causing
the two poles supporting the high voltage lines to come together
in "a looped position," and they contacted the truck.
If the
raised truck bed had pulled down only the neutral wire, without
causing the tires to blow out, a citation would still have issued
because the truck bed which hooked the neutral line would have
been within 5 feet of the energized powerline, and the standard
requires that equipment not be within 10 feet of such a powerline
(Tr. 60-61) .

1603

Respondent's Testimony and Evidence
Michael L. Powers testified that he is employed by Coal
Field Services, and that he was the field work supervisor at the
site at the time of the accident. He confirmed that Coal Field
was the general contractor of the project, under contract with
the respondent. He stated that all contractor employees working
on the project were hazard trained on the first day they were on
the job, and he identified copies of the "hazard training slips"
for the employees (Tr. 76; exhibits R-1-B, c, and D). He confirmed that Coal Field hired Radabaugh Trucking to haul and dump
gravel at the site, and also hired c. W. Stickley to do the
actual grading work. He was in direct control, and supervised
the work of Radabaugh Trucking. Mr. Barton came to the site to
make sure that the work was being done in conformance with the
contract specifications, and he occasionally came to the site
three or four times a day. The truckers employed by Radabaugh
did not leave their vehicles at any time while at the site, and
the respondent advised Mr. Powers that they were not required to
be hazard trained because they only came to the site to dump
gravel and would leave (Tr. 76-78).
Mr. Powers stated that he was serving as the truck spotter,
and that he instructed the drivers where they were to dump their
gravel loads each time they came to the site. He told them to
watch for any powerlines, and remained behind the trucks and used
hand signals to show tnem where to dump and how much to dump (Tr.
78-79). He estimated that the powerlines were located approximately 10 to 15 feet past the end of the foot bridge, and he
described how the incident occurred (Tr. 80-83). He specifically
told Mr. Radabaugh not to go past the footbridge, and that one of
the other drivers called Mr. Radabaugh by radio and told him that
he was getting too close to the powerlines. Mr. Powers stated
that he was using hand signals in an attempt to stop
Mr. Radabaugh from moving further, but instead of stopping, he
continued to move his truck forward, and as he did, the truck bed
hooked the neutral line, bringing the poles together.
Mr. Radabaugh told him that he knew better than to attempt to
jump from the truck after it contacted the wires because he had
previously contacted some powerlines with his truck "on a highway
somewhere around Fairmont" (Tr. 85).
Mr. Powers confirmed that Coal Field Services has its own
MSHA I.D. number, and it was his understanding that MSHA policy
does not require hazard training for pickup and delivery drivers,
and that only those drivers who were at the site and out of their
trucks were required to be trained (Tr. 86). He stated that
Mr. Barton had visited the site on two occasions on the morning
of the accident "to check to see how things were going," and came
out again before lunch to ask him to have dinner with him (Tr.
87) •

1604

On cross-examination, Mr. Powers stated that prior to the
accident, Mr. Barton came to the site four or five times a day to
check the progress of the work and to see if the contract was
being followed. They discussed safety practices on quite a few
occasions, and Coal Field Services conducted its own safety
meetings when it had people at the site (Tr. 89, 91). Mr. Powers
explained the procedures for dumping and spreading the gravel at
the time of the accident, and he confirmed that when he was
preparing to start the project he did not gather any data as to
how high the voltage lines were from the ground (Tr. 92-95). He
confirmed that the first three or four trucks which preceded
Mr. Radabaugh backed under the powerlines, and as they started
forward, they opened their truck gates, and raised their truck
beds as they traveled away from the lines. None of the other
trucks contacted the neutral powerline and there was ample room
to clear the lines over the neutral line (Tr. 98).
Mr. Powers confirmed that he told Mr. Radabaugh not to go
beyond the footbridge because of the powerlines, and because of
other transformer lines in the area. He stated that he carefully
maneuvered Mr. Radabaugh away from the transformers, started him
in the other direction toward the footbridge, but told him not to
go past tqe footbridge where. it was necessary for him to back up
because there was no room to turn around. He stated that
Mr. Radabaugh told him that he went beyond the footbridge because
he was distracted by the other driver who was yelling at him and
that he lost contact with him while he was signalling him to stop
and had his head out of the window trying to determine the location of the powerline (Tr. 99).
Mr. Powers stated that he had prior experience working
around overhead powerlines. He confirmed that he knew how high
the lines were above the truck beds, and how much the beds could
be raised to stay away from them and stay outside of the 10 foot
minimum distance required by the standard, but he did not know
the distance between the neutral line and the other lines. He
knew by "instinct" that the trucks would clear the wires by
backing in and using the reverse spreading procedure, and he
confirmed that he did not discuss the powerlines with Mr. Barton
before the accident while he was at the site (Tr. 102). He
confirmed that Coal Field did not employ any of the truckers
hauling gravel (Tr. 105).
Robert W. Radabaugh testified that he is employed by
Radabaugh Trucking, and that it is owned by his parents. He
confirmed that he was operating the truck when it contacted the
high voltage lines on May 19, 1989, and that he was hauling
limestone that day for c. w. Stickley, a subcontractor of Coal
Field Services. Mr. Powers was instructing him where to dump his
load op that day, and was serving as his truck "spotter."
Mr. Radabaugh stated that he backed into the area where he
started to dump his load, and that Mr. Powers instructed him "to

1605

go toward the bridge and spread it as far as it would go" (Tr.
114). He did not recall that Mr. Powers told him not to go
beyond the footbridge, but that he did tell him "to be careful,
there are wires everywhere" when he made his first trip to the
job site that morning (Tr. 114). He denied that Mr. Powers was
giving him hand signals or directing him where to dump the
gravel, and that Mr. Powers was behind his truck when he began
spreading gravel.
Mr. Radabaugh stated that Mr. Powers backed him into the
area where he started to dump his gravel load, and told him "to
go on." Since he was spreading gravel to a depth of 4 to
6 inches, Mr. Radabaugh believed that he would have traveled
approximately 120 to 180 feet, and that during this time, it
would have been impossible for him to see Mr. Powers in his
mirror when he first started to move out of the area where he had
backed in. At the same instant that he felt the neutral line
catch his truck, he heard another driver calling him over the
radio telling him that he was into the power wires (Tr. 116).
Mr. Radabaugh denied that he had directly contacted a powerline with his truck on a prior occasion, and stated that he has
had "experience with wires before" while spreading asphalt, and
that he was "in the machine, and the power arced from the wire to
my bed." The individual who was on the machine was shocked and
his feet were burned, and after seeing the arc, Mr. Radabaugh
drove his truck out and dumped the asphalt, and "saved the man's
life" (Tr. 117). Mr. Radabaugh confirmed that he was driving the
truck when this incident occurred.
On cross-examination, Mr. Radabaugh stated that he had made
a prior trip to the site during the morning spreading gravel on a
parking lot, and that Mr. Powers was directing him where to start
and where to go to spread his loads, and that he asked Mr. Powers
to give him signals if he were spreading the gravel to thick or
too thin (Tr. 120). He stated that when he "felt" that he was in
the neutral wire at the time the other driver alerted him, "the
first thing I did was to make a quick look to see if the wire was
big enough that I could break it" and that he had no indication
at that time that there was power in the wire or that it had
arced. When he saw that he would not break the wire, he looked
to both sides and put the truck in reverse, and when he looked
into his mirror, he saw Mr. Powers running up behind him motioning for him to stop, and that he did. Mr. Radabaugh denied that
he was aware of the powerlines before starting to move forward,
and the last instructions that he heard from Mr. Powers was "to
go toward the bridge as far as the gravel will go" (Tr. 121). He
confirmed that he was standing up on his truck watching to see if
the truck would empty by the time he got to the downgrade or bank
(Tr. 123) .

1606

Mr. Radabaugh confirmed that he appealed the citation served
on Radabaugh Trucking because he disagreed with the assertion
that he had acknowledged that Mr. Powers told him not to go
beyond the footbridge, but that his father decided to pay the
civil penalty assessment because "it was not worth missing
another day's work." Mr. Radabaugh denied that he ever told
Inspector Shriver that he received instructions not to pass the
bridge, and he stated that he had not received any such
instruction (Tr. 128).
Mr. Powers was recalled by the respondent in rebuttal, and
he stated that he accompanied the Radabaugh Trucking drivers with
each load and gave them directions and hand signals once they
started to spread their load, and that they were under his control at all times. The only trucks that he did not stay close to
were those which were in an open area where "there was nothing
they could get into," and he let them know when their trucks were
empty. He reiterated that he stayed to the rear and left of
Mr. Radabaugh at all times, and that he could see his face in the
truck mirror while he was watching him. Mr. Powers further
explained Mr. Radabaugh's movements, and he confirmed that
Mr. Radabaugh acknowledged that he was told where to stop during
the interview with Inspector Shriver and a state inspector, and
in the presence of Mr. Barton (Tr. 133-141).
James Barton, testified that he was employed by American
Electric Power, as a civil engineer in its design and construction group, and that he holds a B.S. degree in mining engineering
and has served as a mining engineer and as a strip and surface
foreman in West Virginia and Ohio. He stated that his duties as
the project engineer for the work being performed for the respondent on May 19, 1989, entailed assuring that the contract specifications for the quality of the work being performed were being
followed, and that he was there that day to oversee the remainder
of the surfacing project. He confirmed that Coai Field Services
was hired as the general contractor for the work, and that the
work was being supervised by Coal Field's employees, and he
identified the contract provision in this regard (Tr. 143-147;
exhibit R-1-(f)). The contract called for Coal Field to insure
that the work was completed in a safe manner, including the work
of subcontractors, and that Coal Field was responsible for
enforcing all applicable safety laws (Tr. 148-149).
Mr. Barton stated that he maintained no control over the
procedures or manner in which the gravel was being hauled,
dumped, or spread by Radabaugh Trucking, and that Radabaugh
Trucking was not hired by the respondent to do the work (Tr.
149). He confirmed that he observed three to five gravel trucks
on the morning of the accident in order to insure whether the
proper amount of gravel was being spread, and that the trucks
were under the control of Mr. Powers by means of hand and verbal

1607

communication. He stated that he did not see Mr. Powers directing Mr. Radabaugh's truck and was paying no particular attention
to it because he was in another area. He did not see
Mr. Radabaugh's truck contact the powerline, but when it did, he
turned and saw that his truck had contacted the wires, and heard
the "electrical shorting sound" (Tr. 149-152).
Mr. Barton stated that he spoke with Inspector Shriver
regarding the incident on May 19, 1989, but he could not recall
whether the inspector informed him that the respondent would be
held liable or negligent for the incident. He confirmed that he
was not concerned about the manner in which the work was being
done because it appeared that the dumping and spreading of the
gravel was being controlled by Mr. Powers, and the drivers were
complying with his hand signals (Tr. 154). He confirmed that in
·the event he observed any drivers engaging in any unsafe acts he
had the authority to put a stop to it (Tr. 155).
On cross-examination, Mr. Barton confirmed that the respondent is a subsidiary of American Electric Power, and that he was
present at the mine site for approximately a week. During that
week, he observed and saw to it that safety standards were met,
but he did not meet with any contractor employee to discuss any
measures to be taken to insure that the gravel would be spread in
a safe manner. He confirmed that he went to the site on the
morning of the incident to see how the job was progressing and to
have lunch with Mr. Powers. He confirmed that he was concerned
that elevated trucks would be used around high powerlines, but
trusted the contractor because the work was being done in a very
controlled manner. He did not provide the contractor with any
data concerning the height of the powerlines, and this data was
not available to him even though he was the direct contact representative between the respondent and the contractor (Tr.
158-159).
Mr. Barton stated that since the trucks were under the
control of each driver, he would expect the driver to visually
look out for the powerlines. He believed that the accident
resulted from a failure in communications, and that short of
being the direct supervisor over the job, he could not be there
at all times.
In hindsight, he agreed that if he knew that the
trucks could not clear the powerlines, the gravel may have been
spread in a different manner, and he further agreed that the
contractor should alert the drivers to stay clear of the lines
(Tr. 161) .
Larry G. Massey testified that he was employed by the
respondent as the mine staff electrical engineer. He confirmed
that he investigated the incident in question and spoke with
Mr. Radabaugh. He stated that Mr. Radabaugh told him that he had
contacted the power wires and did not leave his truck after
making contact because "he had got into high voltage lines before

1608

at another time" (Tr. 163). Mr. Massey confirmed that he spoke
with Inspector Shriver on the day of the incident, and that at no
time did Mr. Shriver indicate that the respondent would be held
liable for the incident. When he again spoke with Mr. Shriver on
the Monday following the incident, Mr. Shriver informed him that
he issued the unwarrantable failure order to the respondent
because the incident occurred on mine property and it was the
total responsibility of the respondent. Mr. Shriver also
informed him that the incident was similar to a prior violation
issued by Inspector Fetty (Tr. 164).
Paul s. Zanussi, testified that he was employed in the
respondent's safety department as an accident prevention officer,
and that he became aware of the incident when he received a
telephone call from the superintendent of engineering. He confirmed that he investigated the incident, and he described what
he observed when he arrived at the scene shortly after the incident. He confirmed that the footbridge in question was not
located directly under the overhead powerlines, and he estimated
that it was located approximately 10 feet away (Tr. 166-168).
Mr. Zanussi confirmed that the inspector did not issue any
order to the respondent on the day of the incident, but that the
contractor received an order that day, and that the inspector
told Mr. Zuleski, the respondent's mine safety and health manager, that he decided to issue an order to the contractor (Tr.
169-170). Mr. Zanussi stated that it was his understanding that
the contractor was taking responsible precautions and had a
spotter watching the truck and that the drivers knew of the
dangers and their responsibilities (Tr. 175). Mr. Zanussi confirmed that no one from the mine safety department was assigned
to be at the job site to insure that the work was being done
safely, and that he received no instructions to visit the site
(Tr. 177).
Inspector Shriver was called in rebuttal by the petitioner,
and he stated that on the basis of his diagram of the accident
scene, and Mr. Zanussi's testimony that the footbridge was
10 feet in front of the neutral overhead wire, if Mr. Radabaugh
had stopped his truck at the point where he looked out of the
window of his truck, he would have been within 10 feet of the
phase conductor. If Mr. Radabaugh had stopped his truck "as he
was driving, right by the bridge," Mr. Shriver still believed
that his elevated truck bed would be within 10 feet of the wire
(Tr. 179) .
on cross-examination, Mr. Shriver stated that he was aware
of no MSHA regulations requiring that plans or prints be made
available on the job site in question in this case. He confirmed
that his inspection notes confirm that Mr. Powers told him that
he instructed Mr. Radabaugh not to go past the footbridge (Tr.
183) . He again confirmed that he. issued "unwarrantable failure

1609

type papers" to Radabaugh Trucking, Coal Field Services, and the
respondent (Tr. 185). He explained his reasons for doing so as
follows at (Tr. 186-188):

Q. How was the driver here, Mr. Radabaugh, guilty of
aggravated conduct?
A. According. to statements made to me by other
parties, he had been told not to go past the bridge,
and on Monday he conceded he had gone past it. You
know, I don't know whether I caught him cold, or what,
but he had just dismounted from the truck and

Q.

And he confirmed that he had been told?

A. Right. He later said at a conference on the citation that he had not really said that.

Q. The contractor here, how was the contractor guilty
of aggravated conduct?
A. The general contractor, while having the people,
the trucks, travel under high voltage lines, he did not
put up an effective barrier to prevent him from going
past it.

Q. So, if the contractor didn't prevent the driver
from doing it, and if the driver himself did it knowing
or flaunting the instruction not to do it, and both of
that is aggravated conduct, how does Martinka come on
the receiving end of aggravated conduct also?
A. Well, again, Mr. Barton, the project engineer, on
Friday -- and I believe again on Monday, I talked to
him on Monday -- stated that he had watched these
trucks go through there and he had watched this
particular truck go through, and he had made no effort
to ensure that it was low enough to get under, or the
power lines were high enough for them to get under,
without trouble.
The second thing was that he as the project
engineer did not have any knowledge of how high the
line was and therefore from my standing there, looking
at it, it was very difficult for me to tell how high
the line was.
I would hesitate to tell a truck driver that he
could drive that through there with his bed down.
It
is highly misleading when you look up if you don't
actually know how high the line is.
It is very risky

1610

to go under it. And also, he had no knowledge of how
high the truck beds were.
·
The third was Mr. Petty's citation on a similar
violation for having the refuse trucks under this same
circuit; not the same identical line.
Findings and Conclusions
Fact of Violation
The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 77.807-3, which provides as follows:
When any part of any equipment operated on the surf ace
of any coal mine is required to pass under or by any
energized high-voltage powerline and the clearance
between such equipment and powerline is less than that
specified in section 77.807-2 for booms and masts, such
powerlines shall be deenergized or other precautions
shall be taken.
(emphasis added).
The respondent does not dispute the fact that the raised bed
of the truck which was operated by Mr. Radabaugh on its mine
property did in fact come within 10 feet of an energized powerline.
Indeed, the truck bed contacted the wire, causing an
electrical short circuit and arcing, and the contact damaged the
truck tires. The inspector concluded that a violation of section
77.807-3, occurred because the raised truck bed contacted the
overhead energized powerline causing considerable damage to the
truck. Since the clearance between the raised truck bed and the
powerline was less than the 10 feet clearance mandated by section
77.807-2, and since the powerline was not deenergized and no
other precautions to avoid contact were taken, as required by
section 77.807-3, the inspector found a violation of that
standard.
Section 77.807-3, requires that certain clearance distances
be maintained when any part of any equipment operated on the
surface of any coal mine is required to pass under or by any
energized high voltage powerline. Section 77.807-2, which is
incorporated by reference as part of section 77.807-3, requires a
10 foot clearance or separation between the booms and masts of
equipment and an energized overhead powerline.
I conclude and
find that the cited truck in question was a piece of "equipment"
within the meaning of sections 77.807-2, and 77-807-3.
I further
conclude and find that the device used to raise the truck bed was
a "boom or mast" within the meaning of section 77-807-2, and that
the raised truck bed which contacted the powerilire was "part" of
the truck, and within the meaning of section 77.807-3.

1611

Although the parties have not directly raised the issue as
to whether or not the truck was required to pass under the overhead energized powerline, the respondent takes the position that
the truck driver was specifically instructed not to go beyond the
area of a footbridge in the proximity of the powerlines. The
evidence establishes that Mr. Powers, the individual who was
serving as a truck spotter, and who was directing the traffic
flow and the dumping and spreading of' the gravel, was aware of
the powerlines and had instructed the drivers to watch out for
them. Mr. Powers relied on his visual observation of the powerline and his "instinct" that the trucks would clear the power
wires by backing under the wires and using a "reverse spreading
procedure." As a result of the traffic pattern utilized to dump
and spread the gravel under the control of Mr. Powers, three or
four trucks which proceeded Mr. Radabaugh's truck backed under
the power wires, and Mr. Powers instructed them to begin raising
their truck beds as they traveled away from the wires.
Mr. Radabaugh testified that following Mr. Powers' instructions,
he backed his truck up, and as he proceeded in a forward direction to spread his gravel load, he contacted the wire after
traveling approximately 120 to 180 feet. Under all of these
circumstances, I conclude and find that in the process of spreading the gravel, all of the aforementioned trucks, including
Mr. Radabaugh's, were required to pass under or by energized
overhead power wires.
The respondent's defense to the violation focuses on the
unwarrantable failure finding made by the inspector, the respondent's alleged negligence for the violation, and whether or not a
production operator, such as the respondent, may properly be
cited for a violation attributable to an independent contractor.
The responderlt takes the position that it should not be held
liable for the violation of its independent contractor because it
did not contribute to the violation, or let it exist, none of its
miners were exposed to any hazard, and it retained no control or
supervision over the contractor's work or the alleged violative
condition.
In support of its arguments, the respondent cites the
Commission's decision in Cathedral Bluffs Shale Oil Company,
6 FMSHRC 1871 (August 1984), and a court decision in Brock v.
Cathedral Bluffs Shale Oil Company, 796 F.2d 553 (D.C. Cir.
1986). The respondent maintains that the facts and evidence
presented in this case do not support MSHA's position that it was
properly cited pursuant to the Act, as well as MSHA's independent
contractor regulations and policies.
In the Cathedral Bluffs Shale Oil Company case, the
Commission affirmed a Judge's decision vacating a citation issued
to a production operator on the ground that MSHA improperly
applied its newly promulgated and adopted independent contractor
enforcement policy. The Commission found no credible evidence in
that case to support any conclusion that the production operator's employees were exposed to any hazard as a result of the

1612

violation, or that the operator exercised sufficient control over
the work activities of its independent contractor so as to establish a link or nexus with the contractor's violation. MSHA
appealed the decision, Brock v. Cathedral Bluffs Shale Oil
Company, and the Court reversed the Commission's decision, and
held that the Commission improperly regarded MSHA's general
independent contractor enforcement policy as a regulation which
MSHA was required strictly to observe. The Court clearly recognized that MSHA retained broad discretion to cite a mine operator, as well as contractors, for violations, and stated that
"the statement here in question pertains to an agency's exercise
of its enforcement discretion - an area in which the courts have
traditionally been most reluctant to interfere," 796 F.2d 538,
and the cases cited therein. The court further stated as follows
at 796 F.2d 538:

*

*

*

*

*

*

*

[W]e see no basis for overturning the Secretary's
judgment that his independent contractor enforcement
guidelines do not constitute a binding, substantive
regulation. The language of the guidelines is replete
with indications that the Secretary retained his discretion to cite production-operators as he saw fit.
The statement characterizes itself as merely a "general
policy" to "be used by inspectors as guidance in making
individual enforcement decisions." At its very outset
it warns production-operators that nothing it contains
should be regarded as altering their basic compliance
responsibilities:
Production-operators are subject to all provisions of the Act, standards and regulations
which are applicable to their mining operation. This overall compliance responsibility
of production-operators includes assuring
compliance with the standards and regulations
which apply to work being performed by independent contractors at the mine. As a
result, independent contractors and production-operators both are responsible for compliance with the provisions of the Act,
standards and regulations applicable to the
work being performed by independent
contractors.
(Emphasis added).
It seems clear to me that production operators are jointly
and severally liable for violations involving independent contractors at their mines. Cyprus Industrial Minerals Co. v.
FMSHRC, 664 F.2d 1116 (9th Cir. 1981). It is also clear that a
mine owner-operator is liable for the independent contractor's
safety violations without regard to the owner's fault.
See:

1613

Consolidation Coal Company, 10 FMSHRC 745, 749 (June 1988), and
the decisions cited therein by Judge Weisberger. The Commission
affirmed Judge Weisberger's findings that MSHA's discretion was
not abused in citing both the production operator and its contractor, and took note of the Court's decision in Brock v.
Cathedral Bluffs Shale Oil Co., supra, with respect to MSHA's
wide enforcement discretion, 11 FMSHRC 1439, 1443 (August 1989).
There is no evidence in this case that any employee of the
respondent was exposed to the-hazard presented by the violation.
The work was being conducted and directly supervised by the
contractor's supervisor, Michael Powers, pursuant to a contractor
with the respondent. The respondent points out it did not hire
the contractor and sub-contractor employees performing the work,
and only "monitored the contractor's work performance."
Mr. Barton testified that pursuant to the contract, the contractor was responsible for the safe completion of the work as well
as the enforcement of all applicable safety laws. Altho~gh not
specifically raised by the respondent as an issue, I reject any
notion that a production operator may contract away or delegate
its statutory duty to prevent safety hazards or violations which
may occur on its property or its strict liability as established
by the Act.
MSHA takes the position that as an owner-operator, the
respondent is charged with the responsibility of assuring
contractor compliance with the safety requirements of the Act and
its safety regulations, and that the respondent may be cited for
the aots and omissions of its contractor. MSHA relies on its
independent contractor enforcement policy guidelines which state
that it is appropriate to cite the owner-operator as well as the
contractor when the "· . • production-operator has contributed by
either an act or an omission to the occurrence of a violation in
the course of an independent contractor's work or . . . when the
production operator has either contributed to the continued
existence of a violation committed by an independent
contractor. • . " .
MSHA maintains that the respondent contributed to the violation by failing to provide wire height information to its
contractor, by failing to meet with the contractor to systematically enforce the safety provisions of its contract with the
contractor, and by wrongly advising the contractor that it did
not have to train its drivers. With regard to Mr. Barton's role
in connection with the violation, MSHA points out that the work
area in question was an electrical substation and that a high
voltage line accident was clearly the most likely and foreseeable
hazard faced by the drivers. Since -Mr. Barton was an employee of
American Electric Power, and was a trained and experienced civil
and mining engineer, MSHA believes that he should be held to a
higher standard of prudence and care than a regular mine supervisor or a lay person.

1614

MSHA further argues that Mr. Barton had the responsibility
of overseeing the contract performance of the contractor retained
by the respondent, and that the contract required the work to be
performed in a safe manner under competent supervision. MSHA
asserts that Mr. Barton apparently did nothing to assure contractor compliance with this contract provision, did not meet with
the contractor regarding safety measures to be taken, and did not
ascertain whether the contractor had familiarity with wire
heights or truck bed heights, or whether it was familiar with the
hazard inherent in the job. MSHA points out that Mr. Barton
apparently never advised Mr. Powers that he was contractually
responsible for the safety of the project, and that Mr. Powers
testified that he was not familiar with its safety provisions.
Finally, MSHA suggests that the respondent must bear derivative liability for the acts or omission of Mr. Powers. Since the
contractor was apparently delegated the sole responsibility for
safety considerations pursuant to the contract, MSHA concludes
that the contractor became the respondent's agent as that term is
used in section 3(e) of the Act and stands in the shoes of its•
directly employed supervisory agents, and is accountable for the
acts or omissions of Mr. Powers.
In the instant case, the inspector cited and found three
separate entities who he believed were responsible for the violation in question. In addition to the respondent, he also issued
section 104(d) citations to the respondent's general contractor
(Coal Fuel Services), and the contractor's sub-contractor
(Radabaugh Trucking Company). The inspector explained his
reasons for citing all three of these parties.. His reasons for
citing the respondent are summarized as follows:
The violation occurred on the respondent's mine
property.
The respondent's project engineer, James Barton,
was at the work site and observed the trucks
(including Mr. Radabaugh's truck) spreading gravel
under the powerlines, and made no effort to ascertain the clearance distances between the trucks
and the power wires.
The respondent's electrical prints, which were
available at the site, did not reflect the height
of the power wires above the ground, and
Mr. Barton did not know the height of the power
wires, how close the trucks would drive to the
power wires, and did not know the height of the
truck bed when it was in a fully raised position.

1615

The respondent was previously cited for a violation of section 77.807-3, on February 2, 1989, for
failing to maintain a 10-foot clearance between
its trucks which were parked under energized highvoltage lines which was part of the "electrical
circuit" involved in the instant matter. The
inspector believed that this prior citation should
have alerted the respondent' to be aware of the
potential hazard and take appropriate action.
The lack of training for the truck driver
(Radabaugh) whose truck contacted the overhead
power wires in this case
Mr. Barton confirmed that he was present at the work site
.for approximately a week during the course of the work being
performed by the contractor. Contrary to the respondent's assertions that "there is no testimonial evidence establishing the
duration of the visits nor what specifically was observed"
(pgs. 9-10, posthearing brief), Mr. Barton testified that one of
the reasons for his visits during the week was to see to it that
safety standards were met, and he confirmed that he was at the
site on the morning of the accident and observed three or four
trucks spreading gravel under the direction of Mr. Powers.
Although Mr. Barton denied that he observed Mr. Powers directing
Mr. Radabaugh's truck, and stated that he did see the truck
contact the power wire because he was in "another area," he was
apparently close to the scene of the accident because at the
moment of contact, he turned and saw the truck and heard the
"electrical shorting sound." Mr. Powers testified that prior to
the accident Mr. Barton came to the site four or five times a day
to check the'progress of the work, and that he had visited the
site on two occasions on the morning of the accident to "see how
things were going" and returned again that day to ask him to have
lunch or dinner with him.
Although Mr. Powers testified that he and Mr. Barton discussed "safety practices" during Mr. Barton's visits to the work
site, he admitted that they did not discuss the powerlines during
any of Mr. Barton's visits prior to the accident. Mr. Barton
testified that during the week of his visits to the work site to
observe whether all safety standards were met, he did not meet
with any contractor personnel to discuss measures for insuring
that the gravel was spread in a safe manner, and although he had
observed the trucks coming and going, and spreading the gravel,
he was not concerned about the methods being used because he
believed that Mr. Powers had matters under control.
Mr. Barton .confirmed that he was concerned that elevated
trucks were being used around high powerlines, and Mr. Powers was
apparently also concerned because he testified that he instructed

1616

the drivers to "watch out" for the overhe~d wires. Notwithstanding these concerns, Mr. Barton and Mr. Powers never discussed the
hazards of trucks operating at the electrical substation area
where the presence of overhead energized powerlines was readily
obvious and apparent. Further, even though electrical prints and
drawings were subsequently found by the inspector and Mr. Barton
in a contractor's trailer, they did not include any information
with respect to the height of the powerlines above the ground.
Although he was acting as the respondent's direct contact representative with the contractor, Mr. Barton was ignorant of the
height of the powerlines, and he apparently made no effort to
obtain this information and communicate it to the contractor.
Mr. Barton expected each truck driver to visually look out
for the overhead power wires, and Mr. Powers relied on his
"instinct" and the "reverse spreading" p:r:ocedure as a means of
preventing a truck from contracting a wire.
I conclude and find
that the failure by Mr. Barton and Mr. Powers to make any
meaningful determination as to the safe working parameters for
the trucks which were working in a rather confined electrical
substation area around overhead powerlines, or to specifically
determine the height of the overhead power wires, prior to the
beginning of the work in question, and to discuss and exchange
such information with each other, constituted qmissions on their
part which contributed to the violation.
Respondent's safety representative, Paul Zanussi, testified
that he was never instructed to be at the site, and that no one
from the safety department was assigned to be present to insure
that the work was done in a safe manner. While there is no
evidence that Mr. Barton was aware of the previous citation
issued some 3 months earlier for a violation of the same standard
cited in this case, I believe that one may reasonably conclude
that the safety department was aware of it. Although the presence of a safety representative may not be required on a daily
basis at the site where a contractor is performing work, given
the fact that Mr~Barton was concerned about the trucks working
around overhead powerlines, and the fact that the respondent had
recently been charged with a similar violation, I believe that it
is not unreasonable to expect at least some communication between
the respondent's safety and engineering departments and the
contractor to insure that the work was being done in a safe
manner and that truckers were not exposed to potential hazards.
As noted earlier, the respondent may not absolve itself of all of
its statutory safety responsibilities by simply "contracting them
out" to a contractor.
Although Mr. Barton took the position that the contractor
was responsible for insuring that the work was performed in a
safe manner, and was responsible for enforcing all applicable
safety laws, he conceded that he had the authority to act or
intervene if he observed any drivers engaging in any unsafe acts.

1617

He also conceded that part of his responsibilities during his
site visits was to insure that all safety standards were met, and
in "hindsight," he agreed that if he knew that the trucks could
not clear the powerlines, the gravel would have been spread in a
different manner. It seems to me that if Mr. Barton had the
authority in "hindsight" to dictate the manner in which the
gravel was spread if he believed that the spreading methods used
exposed the truck drivers to a hazard of contacting the overhead
powerlines, he also had that authority prior to the time of the
accident. Under all of these circumstances, the respondent's
suggestion that it had no safety responsibility for the work
being performed by the contractor, and that Mr. Barton's presence
at the work site was for the limited or sole purpose of insuring
contract compliance with only the job specifications is rejected.
I conclude and find that Mr. Barton had an obligation and
duty, which were inherent in his position as the project engineer
on the job, to insure that the contractor work being performed in
and around the electrical substation area which was located on
the respondent's property, an area which was rather confined, and
where energized overhead powerlines and other electrical equipment were located, was done in a safe manner.
I conclude and
find that Mr. Barton's failure in this regard constituted
omissions which contributed to the violation.
In view of the foregoing findings and conclusions, I conclude and find that MSHA has established a violation by a preponderance of the credible and probative evidence adduced in this
case. I also conclude and find that the respondent was properly
cited in this case, that the inspector's reasons for citing the
respondent were reasonable and proper in the circumstances and
were in compliance with MSHA's independent contractor policies
and guidelines, and that the inspector did not act arbitrarily by
citing the respondent as well as the contractor and its subcontractor. Accordingly, the contested violation IS AFFIRMED.
Significant and Substantial Violation
The parties stipulated that in the event the violation is
affirmed, it was indeed a significant and substantial violation.
Accordingly, the inspector's finding in this regard IS AFFIRMED.
Unwarrantable Failure Violation
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to

1618

comply with such standard if he determines that the
operator involved has failed to abatethe 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 recent 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. * * *
In my view, the direct and proximate cause of the accident
was the result of the truck driver's failure to adhere to the
instruction by Mr. Powers not to drive beyond the footbridge.
Although Mr. Radabaugh denied that he was so instructed, I find
the testimony of Mr. Powers to be more credible. In addition,

1619

the inspector had no reason to believe that the instructions were
not given.
Indeed, he testified that Mr. Radabaugh admitted that
he was so instructed, and the inspector's notes made at the time
of the incident reflect that Mr. Powers informed him that he had
instructed Mr. Radabaugh not to go beyond the footbridge and that
Mr. Radabaugh admitted that this was in fact the case. The
inspector also confirmed that the reason Mr. Powers instructed
Mr. Radabaugh not to go beyond the footbridge was in order to
avoid contact with the powerwire, and if Mr. Radabaugh had
complied with the instruction he would not have contacted the
wire. Under the circumstances, I do not believe Mr. Radabaugh's
testimony that the he was not instructed not to proceed beyond
the footbridge.
The evidence establishes that the incident in question was
not the first time Mr. Radabaugh had contacted an energized power
wire with his truck. Although Mr. Radabaugh denied that he saw
the power wire as he proceeded away from the area where he had
dumped gravel while under Mr. Powers' direction, he testified
that when he truck initially made contact with the neutral wire,
another driver alerted him to this fact. Although the neutral
wire did not arc, and there was no indication that the wire had
any power on it, rather than stopping his truck at that point,
Mr. Radabaugh looked at the wire to determine whether he could
break it, and when he determined that he could not break it, he
put his truck in reverse, and as he backed up he saw Mr. Powers
through his rear view mirror running toward him and motioning him
to stop. Although Mr. Radabaugh stopped, the neutral wire which
he initially caught with his truck bed brought the power line
support poles together causing the neutral wire to contact the
energized power wire and the truck.
In my view, if Mr. Radabaugh
had simply stopped his truck and not attempted to break the wire
with his truck by moving it further, the accident may have been
avoided.
Inspector Shriver confirmed that in addition to the respondent, he also charged the contractor and its sub-contractor with
unwarrantable failure violations in connection with the accident
in question. He believed that the respondent was guilty of
aggravated conduct because Mr. Barton informed him that he had
observed the trucks, and in particular, Mr. Radabaugh's truck,
travelling under the powerlines while spreading gravel,
Mr. Barton's lack of knowledge of the height of the overhead
wires or the height of the raised truck beds, and the prior
citation issued by another inspector for parking trucks with
their raised beds under the same overhead power circuit. He also
considered Mr. Radabaugh's admission that he had received no
training with respect to overhead powerlines.
Although the evidence establishes that Mr. Barton observed
the gravel trucks operating in the area of the overhead powerlines on the day of the accident, Mr. Barton testified that he

1620

did not observe Mr. Powers directing Mr. Radabaugh's truck and
paid no particular attention to it because he was in another
area. Mr. Powers testified that three or four trucks preceded
Mr. Radabaugh and backed under the wires. Mr. Shriver's notes
reflect that Mr. Barton told him that he had observed three or
four loads of gravel spread in the area north of the substation
fence, and this information was incorporated in an accident
memorandum submitted by Mr. Shriver to MSHA's district manager on
June 1, 1989. Although Mr. Radabaugh was spreading gravel at the
area noted in the notes and memorandum, the information contained
in these documents do not reflect that Mr. Barton specifically
observed Mr. Radabaugh's truck. They simply reflect that
Mr. Barton "watched three loads of gravel spread north of the
substation fence" (exhibits P-5 and P-6). Mr. Radabaugh confirmed that he had made an earlier trip to the site spreading
gravel on a parking lot.
While it is true that Mr. Barton conceded that the trucks
operating and spreading gravel in the area of the powerlines
cause him some concern, his credible testimony reflects that he
relied on the fact that Mr. Powers was serving as the truck
spotter directing and supervising the spreading of the materials,
and that he trusted Mr. Powers judgment that the work was being
done in a safe manner. Mr. Powers had previous experience working around powerlines, and he cautioned each driver as they
arrived at the site to be aware of the lines. Although I have
concluded that Mr. Barton had a duty to communicate with the
contractor in order to insure the availability of information
regarding the height of the powerlines and the height of the
raised truck beds, in the circumstances then presented, including
the fact that Mr. Radabaugh disregarded a direct order by
Mr. Powers not to go beyond the footbridge, I cannot conclude
that Mr. Barton could have reasonably anticipated that
Mr. Radabaugh would not follow instructions and place himself in
a position to contact the powerlines. Under all of these circumstances, I conclude and find that Mr. Barton's failure to act
when he initially observed the truck was the result of inattention rather than aggravated conduct.
With regard to the prior citation issued by Inspector Fetty,
I am not persuaded that this singular violation supports, or
contributes to, a finding of aggravated conduct. The prior
citation concerned a different factual situation, and I find no
evidence that Mr. Barton was aware of it.
With respect to Mr. Radabaugh's lack of training, I take
note of the fact that the inspector did not issue any violations
for lack of training, and I find no probative evidence that the
respondent was required to train Mr. Radabaugh. The unrebutted
testimony of Mr. Powers establishes that the contractor hazard
trained its employees, and I assume that Radabaugh Trucking
Company, who was also a contractor, had some responsibility for

1621

training its own drivers. Although it may .be true that the
respondent advised Mr. Powers that the truckers employed by
Radabaugh Trucking were not required to be trained, there is no
evidence that Mr. Barton gave this advice, and even if he did, I
am not convinced that the basis for this opinion was incorrect.
Mr. Powers confirmed that the truckers did not leave their
vehicles at any time while at the work site, and it was his
understanding that MSHA's training policy did not require hazard
training for pickup and delivery drivers who remain in their
vehicles. The policy referred to by Mr. Powers, exhibit R-1,
supports this conclusion, and I find no evidentiary basis for
concluding that the advice given to the contractor by the respondent was other than a reasonable and good faith opinion based on
the work being performed by contractor truckers.
I take particular note of the fact that Mr. Shriver admitted
that he was not familiar with MSHA's training policy and that he
abated and terminated the violation after the respondent. stated
that it would provide hazard training for contractor truckers,
and that it "will ensure that contractors provide this hazard
training to trucking subcontractors." Thus, it would appear that
the inspector put the onus on the contractor to train its own
subcontractors. Under all of these circumstances, I cannot
conclude that Mr. Radabaugh's lack of training supports, or
contributes to, a finding of aggravated conduct by the
respondent.
In view of the foregoing findings and conclusions, I conclude and find that the violation was a result of the respondent's inattention and failure to exercise reasonable care rather
than aggravated conduct. Accordingly, the inspector's unwarrantable failure finding IS VACATED, and the order IS MODIFIED to a
section 104(a) citation with significant and substantial (S&S)
findings, and as modified, the citation IS AFFIRMED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Abili£y to Continue in Business
I conclude and find that the respondent is a large mine
operator and that the civil penalty assessment for the violation
in question will not adversely affect the respondent's ability to
continue in business.
History of Prior Violations
The respondent's history of prior violations, as reflected
by an MSHA computer print-out, (exhibit P-1-a) , shows that for
the period May 30, 1987 through May 29, 1989, the respondent paid
$251,308 for 1,047 violations issued at the Martinka No. 1 Mine.
one-thousand and fourteen (1,014), were for violations found to
be significant and substantial (S&S). No prior violations of
section 75.807-3, are noted. MSHA has not argued or suggested

1622

that the respondent's compliance record warrants any additional
increases to its proposed civil penalty assessments, and I assume
that it considered the respondent's history of compliance when
the assessments were initially made. However, I have considered
this compliance history in the penalty assessment which I have
made for the violation which has been affirmed.
Good Faith Compliance
The record reflects that the respondent timely abated the
violation by providing hazard training to contractors, and insuring that the contractors will provide hazard training to its
subcontractors. I conclude and find that the respondent timely
abated the violation in good faith.
Negligence
Although the record reflects that the height of the powerlines were otherwise in compliance with MSHA's regulations, I
conclude and find that the failure by Mr. Barton or the respondent to make any determination as to the height of the raised
truck beds operating in the area of the powerlines, or to otherwise discuss the matter with the contractor, or to communicate
this information to the contractor in advance of the start of the
project, constitutes a lack of reasonable care amounting to
ordinary negligence.
Gravity
As noted earlier, the respondent stipulated that the violation was significant and substantial. The truck contact with the
energized powerline caused considerable damage to the truck, and
Mr. Radabaugh was fortunate that he was not seriously injured or
killed.
I conclude and find that the violation was serious.
Civil Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that a civil penalty assessment of $500
is reasonable and appropriate for a violation of mandatory safety
standard 30 C.F.R. § 77.807-3, as noted in the modified section
104(a) "S&S" Citation No. 2944317, May 22, 1989.
ORDER
The respondent IS ORDERED to pay a civil penalty assessment
in the amount of $500 for the violation in question, and payment

1623

is to be made to MSHA within thirty (30) days of the date of this
decision and order. Upon receipt of payment, this matter is
dismissed.

Distribution:
Mark R. Malecki, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & CRITCHFIELD,
Attorneys at Law, 5000 Hampton Center, Suite 4, Morgantown, WV
26505 (Certified Mail)
/fb

1624

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

AUG
WESTWOOD ENERGY PROPERTIES,
Contestant

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

3 1990

..
.
.
.

CONTEST PROCEEDINGS
Docket Nos. PENN 88-42-R
PENN 88-43-R
and
PENN 88-73-R
PENN 88-89-R
thru
Refuse Culm Bank
CIVIL PENALTY PROCEEDINGS

.

Docket No. PENN a8-148
A.C. No. 36-07888-03501
Refuse Culm Bank

WESTWOOD ENERGY PROPERTIES,
Respondent
DECISION APPROVING SETTLEMENT
ORDER OF DISMISSAL

Before:

Judge Broderick

By Decision issued December 20, 1989, the Commission
remanded these cases to me to determine whether the Secretary
properly exercised her authority to regulate the cited working
cond.itions at the subject facility.
By order issued January 22,
1990, I granted Westwood's motion to reopen discovery and I
extended the time for prehearing submissions. Extensive
discovery including interrogatories, production of documents and
a deposition was conducted between January and March 1990.
On August 1, 1990, the Secretary filed a motion to approve a
settlement between the parties and to dismiss these proceedings.
The settlement agreement provides that Westwood will withdraw its
contest proceedings and pay the $900 in civil penalties assessed
in my decision of January 26, 1989. It further provides that
MSHA will not assert jurisdiction over Westwood's facility in the
future, so long as Westwood does not materially change ~he manner
in which it processes culm as described in the Commission
decision.
If MSHA determines that a material change has occurred
and decides to reassert its jurisdiction, it will so notify
Westwood. Westwood does not admit MSHA's jurisdiction over any
portion of the Westwood facility and its withdrawal of the

1625

notices of contest is without prejudice to its right to contest
any future assertion of jurisdiction by MSHA.
I have considered the motion in the light of the Commission
Decision of December 20, 1989, and in the light of the provisions
of section 110(i) of the Act and conclude that it should be
approved.
Accordingly, the settlement agreement is APPROVED, and
Westwood is ORDERED TO PAY the sum of $900 within 30 days of the
date of this order.
IT IS FURTHER ORDERED that subject to the payment of the
above penalty the captioned contest and civil penalty proceedings
are DISMISSED.
A

'

A k

,,

, --

I

/!1 !/6 ./-I-'/~'.: T{k_,,_vz_ cf(/,
ames A. Broderick
Administrative Law Judge

Distribution:
Joseph Mack, III, Esq., Thorp, Reed & Armstrong, One Riverfront
Center, Pittsburgh, PA 15222 (Certified Mail)
Robert A. Cohen, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

1626

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

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

3 1990
CIVIL PENALTY PROCEEDING
:

Docket No. WEVA 89-278
A.C. No. 46-03805-03939

v.
Martinka No. 1 Mine
SOUTHERN OHIO COAL COMPANY,
Respondent
DECISION
Appearances:

Mark R. Malecki, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia, for
the Petitioner;
Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB &
CRITCHFIELD, 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 five alleged violations of
certain mandatory safety standards found in Parts 75 and 77,
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. Two of the alleged violations
were settled by the parties, one was dismissed by the petitioner,
and testimony and evidence was taken with respect to two alleged
violations. The parties filed posthearing briefs, and I have
considered their arguments in the course of 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 standards, (2) whether two of

1627

the alleged violations were "significant and substantial" (S&S),
(3) whether the violations were the result of the respondent's
unwarrantable failure to comply with the cited standards, and
(4) the appropriate civil penalties to be assessed for the violations, taking into account the 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. § 820(i).

3.

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

Stipulations
The parties stipulated to the following (Tr. 7-11; exhibit
P-1) :
1. The respondent is the owner and operator of
the Martinka Mine, and the operations of the mine are
subject to the Act.
2. The presiding judge has jurisdiction to hear
and decide this matter.
3.

A copy of an MSHA's Proposed Assessment Data
Sheet (~xhibit P-2) which sets forth (a) the number of
assessed non-single penalty violations charged for the
years 1986 through February, 1989, (b) the number of
inspection days per month in said period and (c) the
mine and controller tonnage for year 1988, is admitted
for the record in this case, and the respondent has no
facts to contradict the accuracy of this information.
4. A copy of an MSHA computer print-out reflects
the history of prior assessed violations issued at the
Martinka No. 1 Mine for the period April 26, 1987
through April 25, 1989 (exhibit P-3).
5. The MSHA inspectors who issued the contested
orders were acting in their official capacity when the
orders were issued, and true copies were served on the
respondent or its agent as required by the Act.

1628

6.
The respondent knows of no evidence to contradiet the peti tioner' s assertion that the Martinka No. 1
Mine has not had a complete inspection free of unwarran table failure violation since the issuance of
Citation No. 0859286 dated September 1, 1981.

Discussion
case.

The parties settled three of the contested orders in this
The remaining two orders are as follows:

Section 104(d) (2) Order No. 3117868, May 23, 1989, cites an
alleged violation of 30 C.F.R. § 77.404(a), and the cited condition or practice states as follows:
Based on a complaint investigation a D-7 caterpillar dozer company number 29423 had been operated
from 5-15-89 to 5-19-89 with two broken cat pads, which
are part of a walkway platform on which the machine
operators walk to mount and dismount the machine.
This
condition had been known by the foreman in charge, Jim
Richards, and had been recorded in the machine operator's daily examiners record book on 5-16-89.
Section 104(d) (2) Order No. 2944318, May 24, 1989, cites an
alleged violation of 30 C.F.R. § 75.1704, and the cited condition
or practice states as follows:
On Bll longwall, the intake escapeway is not
maintained to insure passage of any person, i~cluding
disabled persons.
In the crosscut just inby
station 22031, between the track and intake entries,
there were the following obstructions:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)

Ten 5-gallon cans of hydraulic oil, two
deep
20-pieces of belt structure
20 belt rollers
Mandoor from stopping
Two wooden pallets
A 3' x 4' x 4' wooden crate full of pan
line chain
Four 3/4" x 2' x 4 1 steel plates
A scoop Tire

In the crosscut from the belt to the track, there
was about 30 feet of water and mud 12 inches deep.
One
block outby in escapeway (outby station 22032) there
was a water hole 40 feet long rib to rib, 12 inches
deep, with a 2 foot drop off to water.
The foreman
stated that this crosscut was entrance to intake
escapeway entry, and there was a green arrow escapeway

1629

sign hanging in track entry, pointing into this
crosscut.
Citation No. 2944303 was issued on 5-1-89 for
obstructed intake escapeway on D-4 longwall. This
should have caused operator to take effective action to
prevent obstructed intake escapeways.
Petitioner's Testimony and Evidence (Order No. 3117868)
MSHA Inspector Bretzel Allen confirmed that he conducted a
surface inspection of the mine on May 23, 1989, after receiving a
section 103(g) complaint from a representative of the miners.
The complaint concerned a D-7 bulldozer with broken cat pads
being operated in the refuse dump area. He confirmed that the
broken pads had been replaced prior to his inspection, but that
he determined that they were previously missing through his
discussion with the equipment operators, foreman Jim Richards,
and the respondent's accident prevention officer, Wesley·oobbs.
Mr. Allen identified exhibit P-4-E, as a copy of an equipment
record book which reflects that the broken pads had been reported
by the machine operator, and he stated that Mr. Richards confirmed that this had been done (Tr. 12-16).
Mr. Allen stated that he was informed that new replacement
cat pads were ordered and received on May 17 or 18, 1989, and
were installed on the dozer on May 19. The complaint was made
because the dozer had not been taken out of service and was
continuously used from May 15 to May 19. He confirmed that the
primary purpose of the cat pads is to provide traction for
tramming the dozer, and they are also used as a travelway for the
machine operator to access and exit the cab of the machine. The
operator walks along the pads to reach the left door of the cab
which is normally used to get in and out of the machine. He
confirmed that he has observed dozer operators enter and exit a
dozer, and they aJways use the left track as a walkway (Tr.
16-19).
Mr. Allen stated that the pads normally break off at the
location of the mounting bolts, and this leaves an opening
9-1/4 inches wide by 12 inches long. He believed that a missing
pad would pose an injury hazard because the dozer tracks are
slippery, and the operator normally takes short steps while
walking across the cleats and he needs to hold onto a handrail or
some part of the machine to get on off. The dozer in question
can be expected to be used at night, and visibility of the tracks
is poor because the dozer operates in a muddy and wet area and
someone may not notice any missing pads because they may be
covered or "caked" with mud. He believed that a slip or fall off
the machine would result in "lacerations, strains, sprains,
fractures, different things" (Tr. 23). He confirmed that dozer

1630

operator Bill Bice lost 3 days of work when he slipped on a
broken cat pad and received a back injury.
Mr. Allen stated that he based his unwarrantable failure
finding on the fact that the respondent knew the pads were broken
because the condition had been reported and recorded in the
record book. Although replacement parts were ordered, the
respondent continued to use the dozer with the broken pads
instead of removing it from service until it could be repaired,
and this did not comply with section 77.404(a). Mine management
gave him no reason for not installing the cat pads on May 17 or
18, and replacement could have been achieved by removing and
replacing four bolts. He confirmed that management was aware of
Mr. Bice's injury because it promptly reported the incident to
MSHA (Tr. 24).
On cross-examination, Mr. Allen stated that the operator's
controls on the right side of the cab would hinder his exit from
that door and that the manufacturer put two exit doors on the
machine "in case of an emergency." He confirmed that a missing
pad would leave an opening 9-1/2 wide by 12 inches long by measuring a pad which was on the machine. He also confirmed that the
accident report concerning Mr. Bice reflects that he lost 1 day
of work, and that weekends are not counted as workdays (Tr. 26).
Mr. Allen confirmed that he cited a violation of 77.404(a),
because he believed that the two half-broken cat pads on the
cited dozer rendered the machine unsafe to operate, and that the
respondent should have immediately removed it from service once
it knew the pads were broken (Tr. 26). He stated that the cat
pad on the cited dozer is approximately 36 inphes wide, from left
to right, and that after counting the number of pads on a print
of a D-7 dozer, he determined that there are 72 pads on the
machine. He agreed that there could be a minimum of 77 pads on a
dozer, but did not believe that the cited dozer had more than 77,
but he did not count them (Tr. 29).
Mr. Allen confirmed that he has operated a D-7 dozer and he
described the enclosed glass operating cab. He stated that the
dozer is normally mounted from the back, and that the terrain
where the machine is operated has some e·ffect on whether or not
the pads break. He believed that a dozer operator would not
necessarily look for any broken pads, and he has not observed any
employee exit from the cab onto the track and jump off the
machine (Tr. 33). If an operator observed a broken pad, he could
move the machine so that the broken pad is contacting the ground
prior to dismounting, or he could use the other door. He confirmed that each operator is responsible "to a certain extent"
for his own safety when he is mounting and dismounting the
machine (Tr. 34).

1631

Mr. Allen defined "unwarrantable failure" as "an unsafe
condition or practice that the operator knew about or should have
known about" (Tr. 35). He determined that the violation was an
unwarrantable failure because Mr. Richards, the foreman in
charge, knew about the condition of the dozer for a week, and
that the surface superintendent, Richard Haught, also knew about
the condition. Mr. Allen confirmed that he did not see or
measure the broken pads because they had already been replaced at
the time the o~der was issued (Tr. 36).
Mr. Allen stated that unless the dozer has been parked or
cleaned up, it is normally slick because it operates in wet
materials, and that a certain portion of the mud which adheres to
the tracks is discharged because the machine is designed to do
this (Tr. 48). He confirmed that getting on and off a dozer is
hazardous and that an operator should be cautious and use "the
grab bars" on the machine (Tr. 53).
Delbert Barnett, testified that he has been employed by the
respondent as a mobile equipment operator for approximately
7 years. He operates a dozer at the coal refuse area where "it
is the type of refuse which is real mucky" and black in color.
He was aware of the injury to Mr. Bice when he fell through a pad
on a dozer, and he confirmed that in 1989, there were problems
with broken bolts on the pads. Complaints were made to management, but no action was taken until Mr. Bice was injured, and
management then began repairing the pads. The safety department
met with the operators and instructed them that no one was to
operate dozers if a pad was broken off, and he was never required
to operate a dozer with broken pads. However, the operators were
required to operate the dozers when it was known that they were
loose. He adknowledged that it was difficult to detect a loose
pad unless one actually stepped on it, and when a loose pad was
discovered, the foreman was notified, and he was supposed to
contact a mechanic to fix it (Tr. 59-62).
Mr. Barnett-identified exhibit P-4-E, as copies of equipment
operator's checklists which he has filled out and left to be
picked up by management. He identified a May 16, 1989, checklist
which he filled out and it notes that "two pads broke, left
side," and confirmed that he gave it to foreman Jim Richards, but
that Mr. Richards took no action to repair the machine that day
(Tr. 63). Mr. Barnett also confirmed that he made a notation on
the form that the "pads was broke off the tracks" and that he
"almost fell through the broken pads," and he further explained
this incident (Tr. 64-67). He believed that missing cat pads
pose a risk to him because when he is working on slopes or
benches he should not have to worry about "stepping and falling
through something" (Tr. 67). He stated that it is much easier to
walk if there are no missing pads, and that at times, the tracks
are so muddy that he cannot see the pads and that its "real

1632

slippery" and· "that is why we have so many hand bars on it to
hold yourself as you're getting up on the machine" (Tr. 68).
Mr. Barnett stated that the cited dozer was operated "around
the clock," an.d that he has operated it in the dark once or twice
in the past year, and the only lighting was on the front and back
of the machine. There are times when he cannot exit from the
right side of the machine, and he uses the left side track for
checking the machine oil, transmission, and water level at the
start of the shift, and his gauges during the shift (Tr. 70). He
uses the right exit of the machine more than the left because a
parking brake on the left side is "a hassle" (Tr. 72).
Mr. Barnett explained that the problems with the pads began
when the respondent decided to weld the mounting bolts to keep
them from breaking and to save time replacing the bolts. However, the pads were crystallized when they were welded by a
contractor, and most of them have been replaced to their original
factory condition (Tr. 73).
On cross-examination, Mr. Barnett stated that he has always
reported broken pads to management, and that his reports are left
on a desk.to be picked up by the foreman.
He stated that he can
observe the pads as they move around when the machine is operating, and can see any broken pads once the machine is moving (Tr.
74-80) • He confirmed that the machine oil and water must be
checked from the left side, and that the fuel is checked from the
right side (Tr. 81). He confirmed that he can use the right side
to exit the machine, or sometimes can move the machine forward to
avoid broken pads, if he is aware of them (Tr. 83-84). He denied
that he has ever jumped off a machine, and he has never observed
anyone do so (Tr. 85).
Mr. Barnett confirmed that Mr. Dobbs, who is with the
respondent's safety department, has instructed the dozer operators not to operate any dozers with broken pads, but that
Mr. Dobbs told them... this after the violation in this case was
issued, and not before (Tr. 86). He also believed that the
safety department stated that dozers with broken pads would be
withdrawn after Mr. Bice was injured, but before Inspector Allen
came to the mine (Tr. 86).
In response to further questions, Mr. Barnett stated that he
had observed the broken pads which he had reported on the May 16,
1989, checklist during the shift, but that the respondent took
the position that broken pads were not against the law and that
"it wasn't no safety issue for us to run the machinery" with
broken pads. He stated that "the company told us that we had to
run them with broken pads," and that after Mr. Bice was injured,
"they started shutting the machine down and fixing the pads" (Tr.
89). He could not recall why he did not report any broken pads
on his checklist report dated May 17, 1989, and was not sure if

1633

they had been repaired by that time (Tr. 90). He considered a
dozer with broken pads to be unsafe when he had to use them as a
walkway, checking his machine, or dismounting (Tr. 94). He
confirmed that he would leave the machine from the right or left
side, depending on where it would be parked, and whether there
were any obstructions present (Tr. 95).
Dave Kincell confirmed that he has been employed by the
respondent as a dozer operator for 7 years, and that he operates
a dozer in the refuse area. He was aware that Mr. Bice hurt his
tail bone a couple of times when he slipped off a dozer (Tr. 98).
He was also aware of pad problems in the spring of 1989, when the
pads were coming loose and the respondent decided to have them
welded (Tr. 99). He confirmed that mine management instructed
the dozer operators not to operate any dozer with a broken pad,
and he believed that this statement was made after Mr. Bice was
injured and before Inspector Allen issued the violation in this
case (Tr. 100).
Mr. Kincell believed that missing cat pads pose a risk to
him as the dozer operator, particularly before daylight during
the winter when he cannot see any broken pad on the machine
walkway. He stated that he can see one-third of the pad from his
operator's cab, and that the pads are hard to walk on when they
are wet and slippery, even if none of them are missing or loose
(Tr. 101). At times, the mud is packed ·on the pads and "you
wouldn't know it was there until you stepped on it or the mud
fell out of it" (Tr. 101). He did not believe it was practical
for him to remember if a pad is missing and act accordingly,
because he is concentrating on operating his machine and not the
pads (Tr. 103) .
Mr. Kincell confirmed that the oil on a D-7 dozer is checked
from the left side, and that he has worked as a mechanic and has
repaired the pads. He believed that anyone can change the pads
with the proper t9ols, and if the bolts were not required to be
burned off, a_pad can be replaced in 20 minutes, or in 35 to
45 minutes if the bolts had to be burned off. Such repairs are
made by mine employees or contractors at the mine (Tr. 105).
On cross-examination, Mr. Kincell confirmed that
Mr. Richards, Mr. Dobbs, and others told the dozer operators that
they were not to operate the dozers with broken or chipped pads,
and that this was said during a safety meeting the morning
following Mr. Bice's injury. He stated that "they said if you
get on your machine and you checked it out and it had a broken
cat pad, notify them and they will find you something else to do
until it was fixed, or it wouldn't ~un like that" (Tr. 108). He
acknowledged that he can exit from the right side of the dozer,
but that he cannot see the front and sides of the dozer tracks
from the cab because the view is obstructed by a hydraulic tank
and fender (Tr. 108-110). Mr. Kincell confirmed that he is more

1634

careful in mounting and dismounting a dozer when operating under
wet and slippery conditions (Tr. 111).
Mr. Kincell confirmed that he fills out an operator's checklist on a daily basis, and has reported broken dozer pads "quite
a few times" (Tr. 113). He stated that he has operated a dozer
knowing that the pad is broken if he knew that management would
repair or replace it within "the next hour or so," but has
refused to operate a machine when he knew that there were no
replacement pads available, or he had to operate the machine on a
slope (Tr. 113, 122-123). He conceded that he is responsible to
watch out when climbing on a dozer or using the walkway (Tr.
114).
Bill Bice testified that he has been employed by the respondent as a mobile equipment operator for 10 years and operates a
D-7 dozer. He confirmed that he was injured on March 2, 1989,
when he stopped the dozer to obtain some oil and while leaving
the machine he stepped into a hole created from a partially
broken track pad, and strained his back when his foot went
through the hole (Tr. 129; exhibit P-4-D). He confihned that he
had previously slipped on a track pad and broke his tail bone 3
to 4 years ago. There was nothing wrong with the pad, but it was
slippery and his feet went out and he fell (Tr. 131).
Mr. Bice stated that management called him at home when he
was injured on March 2, 1989, and informed him that dozers were
not going to be operated with broken pads, and the following week
or so~ this was confirmed by the safety department during a
safety meeting with equipment operators (Tr. 132). He confirmed
that the cited dozer which prompted Inspector Allen's inspection
had a broken pad, and he considered a broken pad to be a risk or
hazard to him (Tr. 133-134). ·
Mr. Bice stated that it is not·always easy to see whether a
pad is broken because of poor ground conditions or lighting, and
that it is easier to leave the machine from the right side
because of the brake which is located on the left side. He
confirmed that he has exited the machine from both sides, but
that it is normally easier for him to leave by the right door,
but there are times when he leaves from the left door depending
on the circumstances presented (Tr. 136).
On cross-examination, Mr. Bice confirmed that if he were
aware of a broken pad and "was thinking about it" he could move
the machine forward before leaving, or use the opposite door to
exit. He confirmed that Mr. Richards assigned him to operate the
dozer which was cited by Inspector Allen, but he was not sure of
the date. He confirmed that he observed the broken pads, but
that he did not make the safety complaint because he did not know
the pads were broken until a day after the complaint was made
when he came to work. He believed that half of the pad was

1635

broken off, and stated that there is a fender over half of the
pad along the cab of the dozer, and that he would step on the
fender and onto the track and would normally walk to the back of
the machine to dismount (Tr. 139).
Mr. Bice confirmed that prior to the violation in question
he operated a dozer with broken pads, and that this condition
does not render the machine inoperable and it would still have
traction. He cquld not recall whether he has ever jumped off a
dozer, but has observed other operators jumping off. He agreed
that a dozer operator is responsible for being careful while
mounting and dismounting a dozer, and that his usual practice is
to use the grab bars on the back of the machine (Tr. 141). He
did not believe that he was instructed not to use the cited dozer
after the order was issued, but he was not sure (Tr. 141).
Respondent's Testimony and Evidence
Frederick L. Ware, Field Service Mechanic, Beckwith
Machinery Company, was called as a witness out of turn by the
respondent at the conclusion of the hearing of May 1, 1990, in
another docket involving these same parties. He testified that
he is a journeyman and master mechanic with 23 years of experience, and he has worked on and operated D-7 dozers. He recalled
workirig on a D-7 dozer with broken pads at the mine between
May 19 and 23, 1989, and he identified a copy of a work order
dated May 19, 1989, (exhibit R-2-1). The order reflects that he
replaced three broken pads, and he believed that they were broken
on the inside of the rail, but he was not sure (Tr. 197). He
confirmed that the upper portion of the D-7 dozer tracks is
utilized as a walkway for the operator to mount and dismount and
it is the only way one can get on the machine. The operator
usually mounts the machine from the front because there are
fenders on the back end and the handrails are on the front.
He
identified exhibit R-2-C as a photograph of the dozer.
Mr. Ware sta~d that it would be difficult for the dozer
operator to see a broken pad on that portion of the track which
is on the ground, but that he could see the portion of the track
which is not hidden by the ground. He confirmed that the operator can see the front portion of the tracks from inside the cab,
but not that portion directly under him (Tr. 199). He confirmed
that the pads are properly attached to the D-7 dozer by bolts,
and that the respondent welded the bolts so that they do not
vibrate as an added safety feature or precaution. He stated that
there are 38 pads on each side of the dozer, and that this is a
standard track. Some dozers have extended roller frames which
can accommodate two more pads on each side (Tr. 200).
In response to a question as to whether or not two
half-broken pads would render the D-7 dozer unsafe to operate "in

1636

any way as far as traction" is concerned, Mr. Ware responded as
follows (Tr. 201-202):
Q. Mr. Ware, in your opinion, would two half-broken
cat pads, would that render this piece of equipment
unsafe and unable to safely operate in any way as far
as traction?

A.

We're talking about the operation of the machine?

Q.

That is correct.

A.

No, it wouldn't.

Q. There is no way this would render this piece of
equipment unsafe?

A. No. There is nowhere it states in any of our books
a broken pad is a reason for not operating a machine,
as far as operation of the machine is concerned.
Q. And two half-broken cat pads would not render the
tracks loose, or you would not lose (sic) traction in
any way?

A.

No.

On cross-examination, Mr. Ware confirmed that "anybody can
bolt on a track pad," and that the pads were welded on the dozers
to prevent the bolts from loosening. He did not believe that the
heat generated by the welding process affected the pads in any
way, but that some pads which were welded "underneath on a pad to
the link" caused a break problem. He could not recall whether
the pads that he repaired had this problem (Tr. 204). He confirmed that "there are different things on different sides you
have to look at on this machine at times." He stated that "I
think the right t~ack is to refuel. Maybe to check the oil from
the right side.
I don't know" (Tr. 204). He believed that a
broken pad would be visible to the operator during the daytime,
but not at night (Tr. 205).
In response to further questions, Mr. Ware stated that
depending on the terrain, it is not unusual for D-7 dozer pads to
break occasionally, and that the track pads are 32 inches extra
wide and have a tendency to break on the outside regardless of
who makes them or how they are installed (Tr. 205). The primary
function of the pads is to provide traction (Tr. 206).
Delbert Linville, respondent's refuse supervisor, testified
that he is a master electrician and has mine foreman's papers.
He explained the terrain at the refuse pile and confirmed that it
consists of coal waste which is always wet and very slippery. In

1637

his opinion, two half-broken pads on a D-7 dozer would not render
it unsafe to operate, and such a condition would not affect the
tracks, and the loss of traction would be minimal (Tr. 146). He
believed "that a man getting on or off the machine should pay
particular attention to how he is stepping and where he is
stepping" (Tr. 148).
Mr. Linville stated that in his 27 years of experience he
was unaware of any serious injuries involving broken pads on a
dozer, and was not aware of any orders ever being issued by MSHA
for such a condition, or for half-broken pads or any other reason
(Tr. 150-151). He stated that the major purpose of the pads is
to provide traction for the machine, and that they are not
designed for a walkway (Tr. 151). He confirmed that night lighting at the refuse pile is provided by q portable light plant, and
there are six to eight lights on each dozer, and although the
lighting on the machine may not be adequate when an operator
initially mounts it, once he turns the machine lights on, "he can
see fine" (Tr. 152).
On cross-examination, Mr. Linville confirmed that although
the pads are primarily used for traction, the only way for an
operator to reach the cab would be to "step on one to get up
there." He stated that it might take 4 days to repair pads if
they were not in stock, but he indicated that they are stocked
and that the supplier is located 15 to 18 miles from the mine
(Tr. 156). He confirmed that he was not the foreman when the
order was issued, and that he never had two broken pads on a
dozer and let it go for 4 days without repairing it (Tr. 156).
He confirmed that a dozer operator may have to use both tracks to
perform certain maintenance services (Tr. 157).
Mr. Linville considered broken pads to be a normal wear and
tear item, and stated that "in due time we would replace them, in
a timely manner.
If we didn't have them. in stock, then we had to
buy it or order it_and then replace it" (Tr. 159). He confirmed
that in the past he would not have shut a machine down for broken
pads. He was not aware of any inspector citing a machine when he
observed a broken pad, nor was he aware of any inspector inspecting the pads on a dozer and say anything about them (Tr. 159).
He did not consider the machine with a broken pad that Mr. Bice
stepped through to be in an unsafe condition because he believed
that Mr. Bice should "try to get off as easy as he can, as safe
as he can," and that he should have been looking and able to see
the broken pad (Tr. 160).
Petitioner's Testimony and Evidence (Order No. 2944318)
MSHA Inspector Spencer Shriver· confirmed that he conducted
an inspection on May 24, 1989, in the company of Mr. Dobbs and
miner's representative Pat Grimes. Referring to a sketch of the
cited area, he described the parts, supplies, and other materials

1638

which he observed in a crosscut on the intake escapeway, including water and muddy holes approximately 1 foot deep. The water
holes were not bridged or being pumped, and he concluded that all
of the accumulated materials, including the holes, obstructed the
escapeway and constituted a violation of section 75.1704.
The inspector believed that the cited standard requires that
an escapeway be maintained in such a condition so as to allow
travel by miners, including disabled persons who may be carried
out on stretchers. He stated that he had to climb over the
materials in the crosscut, and he believed that in an emergency,
injured or disabled miners, as well as miners assisting those who
may be injured, would be exposed to a danger of falling while
attempting to travel through the obstructed area. He also
believed that the slippery and muddy waterholes obstructed the
escapeway, and presented a slip and fall hazard, including drowning. Miners would also have difficulty reaching some of the self
rescuers stored in the area because they would have to climb over
the accumulated parts and materials (Tr. 169-175).
Mr. Shriver stated that if an emergency were to '"occur, and
miners had to use the obstructed escapeway, particularly while
carrying out any injured miners, it would be reasonably likely
that an injury would occur. In the event of a longwall dust
ignition, a fire on a track locomotive, or a major disaster,
smoke would course through the area and would affect visibility.
If an injured miner attempting to travel the escapeway where the
water holes were located was unaware of the holes, he could slip
and fall and conceivably be drowned or knocked unconscious out
(Tr. 177-178).
Mr. Shriver stated that longwall foreman Larry Morgan
admitted that he knew that the escapeway was impeded and informed
him that the midnight crew had knocked down the stopping in the
crosscut to prepare the changing of the escapeway. He stated
that Mr. Morgan explained that the respondent's policy is to
initially clear any existing obstructions, then knock down the
stopping, and hang check curtains. Mr. Shriver also determined
that a supply scoop had difficulty travelling over a 2-foot
dropoff at one of the water holes, and that a chain had been used
over a 3-day period to pull the scoop over the hole. He concluded that the supplies and materials in the crosscut had been
there since approximately 8:00 a.m. on the day of his inspection,
and that the water hole had been there for 2 or 3 days. He
concluded that "it had been there a relatively long time, and I
consider it to be a serious violation" (Tr. 179-181).
Mr. Shriver stated that he had previously visited the longwall area on a "prestart" inspection and informed the respondent
of the hole which had a 3-foot "stepup" and that a ladder or
steps should be installed. When he returned on May 1, 1989, two
bags of rock dust were in the hole but they were broken and "of

1639

no consequence," and he cited the condition. He informed the
respondent of a possible problem with the escapeway and that
additional attention should be given to it so that it did not
become unpassable. He further stated that Mr. Morgan admitted
that he was aware of the situation "but just hadn't really got
around to having it cleaned up." Under all of these circumstances, Mr. Shriver concluded that the violation was an unwarrantable failure (Tr. 182).
Mr. Shriver confirmed that some of the bricks and blocks
from the stopping which had been knocked out by the midnight
shift had been removed, and that three curtains had been hung.
He observed no work being performed to remove the accumulated
materials, and the longwall was in operation. Mr. Shriver
believed that the material was being "warehoused" back in the
crosscut when the stopping was still intact, and he confirmed
that at that time, that location was not a designated escapeway
and the material did not have to be cleaned up. Once the
stopping was knocked out to reroute the escapeway, it became an
escapeway "at that precise moment," and it was required to be
free of debris (Tr. 186).
Mr. Shriver also believed that the waterhole in the intake
escapeway entry constituted "unwarrantable conduct" because he
was informed that it had been there for several shifts and that
men were seen pulling a scoop out of the hole for 2 or 3 days
using a chain over the top of some roof bolts. He observed the
rusted and broken bolts, and concluded that the water hole had
been there for several shifts. During this time, the hole was in
the escapeway, and the escapeway was being re-routed to the area
where the stopping had been knocked out. Since the escapeway had
to be walked·weekly, ahd since the scoop was there, and it
required an electrical inspection, he concluded that mine management should have known that the hole was there (Tr. 192). ·
On cross-examination, Mr. Shriver confirmed that his initial
gravity finding that- it was reasonably likely that a fatality
would occur, was subsequently modified to "permanently disabling"
during an MSHA conference that he normally does not attend (Tr.
196). He also confirmed that there are several miles of escapeways on the section, and that self rescue devices are stored all
along the working faces and it would not be necessary to use the
ones near the obstructed escapeway in question (Tr. 196).
Mr. Shriver confirmed that when he encountered the three
miners in the dinner hole who advised him about the water holes,
they told him that they were informed by their supervisor to
clean up the escapeway once the ventilation was moved up (Tr.
198). He also confirmed that there are other available escapeways out of the section other than the one that was being
re-routed (Tr. 200). He agreed that there are no regulations
establishing any time limits for a section supervisor to move the

1640

ventilation or clean up an escapeway once he arrives on the
section (Tr. 201).
Mr. Shriver confirmed that there was a pump located in the
track entry, and a 2-inch line was installed over the water hole.
However, the pump was not working, and he was told that it was
inoperative since at least the morning of his inspection. He
concluded that.the area was a "natural sump area" and that the
water drained to the area of the hole (Tr. 204).
Mr. Shriver stated that the partially obstructed escapeway
constituted a significant and substantial violation, because the
presence of the "three different sets of obstructions" which he
found could reasonably likely result in injuries and that if a
person "was disabled himself or assisting a disabled person,
there could be further injury to his injury" (Tr. 204). He
confirmed that he climbed over the accumulated material "with
some care and great difficulty," and although there was a walkway
present, the area was still obstructed with materials. He agreed
that there were three escapeways on the section, namely, at the
intake, track, and belt, and that the other escapeways can be
used in an emergency (Tr. 205). He also agreed that self
rescuers are available along the face where the longwall operator
and shield men would be working (Tr. 206). With regard to four
visitors who were on the section, Mr. Shriver confirmed that they
were required to be hazard trained by the respondent, and he was
informed that they had all been trained (Tr. 208).
With regard to his prior citation at the 3-foot "stepup"
location, Mr. Shriver stated that he discussed it with the
respondent during his April pre-start inspection, and when he
returned on May 1, rock dust bags had been thrown in the hole for
someone to step on, and some effort had to be made to address the
problem. He confirmed that he advised the assistant longwall
coordinator at that time that "you best be getting a grip on this
escapeway situat:ton" (Tr. 222).
Patrick Grimes testified that he is employed by the respondent as a mechanic and serves on the union mine safety committee.
He confirmed that he accompanied the inspector on May 24, 1989,
and the parties agreed that his testimony concerning the conditions cited by the inspector would be the same as the inspector
(Tr. 228). Mr. Grimes confirmed that the stopping had been
knocked down on the previous shift and that the miners in the
dinner hole confirmed that they were assigned to clean up the
accumulations and were .not busy doing other work (Tr. 229).
Mr. Grimes stated that foreman Larry Morgan informed them that he
was aware of the water, that a water pump was present in that
area, but Mr. Grimes did not know whether Mr. Morgan knew that
the pump was not operating. Mr. Grimes stated that the escapeway
had been used to bring supplies to the section and that a scoop
had been pulled through the hole (Tr. 231).

1641

On cross-examination, Mr. Grimes stated that the mine pumps
millions of gallons of water a day, and that the water hole was
approximately a foot deep. Mr. Morgan informed him that the
water was being pumped from the hole, that the stopping had been
knocked out on the midnight shift, and that the ventilation had
been moved up, but nothing had been done to clean up the
accumulated materials (Tr. 234).
Respondent's Testimony and Evidence
Larry Morgan, section supervisor, testified that he was the
supervisor on the longwall section on May 24, 1989, when the
inspector issued the order. He confirmed that the shift began
for him at 9:30 a.m., and that he instructed his crew to move the
ventilation and help clear the walkways. Referring to a mine
map, exhibit R-5-A, Mr. Morgan identified the location of the
alleged obstructed escapeway, and he stated that once the stopping was knocked out, he could observe the escapeway, and he
confirmed that it was partially obstructed. He stated that there
was a 30-inch walkway through the area, that "you could walk
through it," and there were no blocks in the walkway (Tr. 247).
He first learned that the escapeway was partially obstructed
"after we knocked the stopping out for the ventilation move" (Tr.
247). Although he believed that establishing ventilation and
cleaning up walkways are both important, he would first establish
the ventilation to keep any gas off the face and then address the
walkways (Tr. 248).
Mr. Morgan confirmed that he observed the cited water and
mud condition one block outby when it was brought to his attention by the inspector. He stated that the location of the hole
was in a low part of the heading, and the water drains into the
hole. A pump was installed to pump off the water, and a scoop
had traveled over the area. The pump was pumping when the
inspector came to the area, but it was not pumping efficiently
(Tr. 250). He could not recall whether the inspector asked him
whether the pump was effectively draining off the water, and when
he informed the inspector that he had instructed his crew to
clear the walkway, the inspector said "that's how it was whenever
he come in and that's the way it's going to be" (Tr. 251).
Mr. Morgan did not believe that any miner was exposed to a
hazard at the time of the inspection, and he received no complaints from any miners regarding the alleged hazardous condition
of the escapeway or the water. When he learned that the pump was
not working, he requested that a pumper be sent to the section to
check it, and prior to this time the pump was adequately pumping
the water. He described the hole as "slope like" and "a low
place," and that it was not a hole that anyone could fall into
(Tr. 252) .

1642

On cross-examination, Mr. Morgan stated that other than a
notation as to when he arrived on the section, he had no other
notes concerning the cited conditions. He confirmed that he did
not fire boss the water hole, noticed that there was a pump on
the section, and knew that the hole existed, but did not know
when he first became aware of it or how long the pump had been
there (Tr. 254). He was aware that a scoop was used to bring
materials to the section up the escapeway, but was not aware that
any vehicles got stuck in the hole (Tr. 255).
Mr. Morgan stated that the walkway was off to the left side,
and he disagreed with the testimony of the inspector and
Mr. Grimes that they had to actually walk over the accumulated
materials. He confirmed that he made no notes or drawings and
that his testimony is based on his recollection. He denied that
he had to step over anything when he walked the area, and he
believed that anyone who was disabled in an emergency could
safely pass through the area. He confirmed that he did not
observe the materials when he fire bossed at 8:50 a.m., because
the stopping was still in place at that time and the materials
were on the other side of the stopping (Tr. 257-258)~
In response to further questions, Mr. Morgan stated that
there are four escapeways on the section, and he identified them
as the main, track, belt, and return escapeways, and that "the
others" were not obstructed and the men could have gone out the
other three escapeways (Tr. 263). ·After the stopping was knocked
out, the materials behind it had to be moved with a scoop., and if
they were to remove the materials before knocking out the stopping, the materials would have to be carried out by hand because
the scoop could not get around to the area. He was aware of back
injuries resulting from people carrying heavy· materials in the
mine (Tr. 264).
Mr. Morgan admitted that a scoop could have reached the area
where the material§ behind the stopping were located, and that
any handling of the materials by hand would be limited to moving
them out of the way so that they could be loaded on the scoop and
moved to another location, and that the materials would not be
hand-carried out of the section (Tr. 264-267). He was not aware
that all of the accumulated materials cited by the inspector were
behind the stopping until it was knocked down. When asked
whether he was surprised that the materials were there, he stated
that "I didn't realize there was that much there" and was not
aware of "all of it" (Tr. 269). He stated that while there was a
clear walkway to the left side of the area, the walkway had not
been established as such, and that he was in the process of doing
this when the inspector arrived. He conceded that none of the
material had been removed before the inspector saw them (Tr.
269-270) .

1643

Mr. Morgan stated that he instructed his crew to clean up
the materials during the first part of the shift after the stopping was knocked out, and that "whenever we move up·; we just
automatically knock out stoppings" (Tr. 273). He assumed that
the materials were moved to the location in question with a scoop
"and then hope to get them out of the mine" (Tr. 273). He stated
that the inspector was mistaken when he testified that he
(Morgan) told him that the stopping in the crosscut between the
track entry and the intake escapeway was the one that was knocked
out by the night shift, and that the stopping knocked out by the
night shift was the belt stopping (Tr. 274).
Inspector Shriver was recalled, and he testified that it was
his understanding through his conversation with Mr. Morgan that
the. stopping between the track and the intake entry had been
taken down by the night shift, and that during this conversation,
he, Mr. Grimes, Mr. Dobbs, and Mr. Morgan were all looking into
the area where the accumulated materials were located, and that
this occurred at approximately 11:45 a.m. Mr. Morgan told him
that the night crew had knocked the stopping down, and that he
.had assigned men to clean it up (Tr. 281).
When asked whether there could have some confusion over
which stopping was taken down by the night shift, Mr. Shriver
stated as follows (Tr. 286):
THE WITNESS: Well, both stoppings were done, and the
one that we were discussion had the accumulation of
parts and junk behind it, and we were all standing
there looking at it, and Mr. Morgan -JUDGE KOUTRAS: Well, it becomes critical because if it
was knocked out the midnight shift, there may have been
an hour or two interval in there where
you obviously
believed it was done at midnight. You felt that
between that ±ime and the start of the day shift they
should have had it cleaned up.
THE WITNESS:

That's right.

JUDGE KOUTRAS: If it was knocked down shortly before
you got there, then certainly they didn't have enough
time to clean it up.
Do you follow?
THE WITNESS:

Yes.

on cross-examination, Mr. Shriver confirmed that he did not
specifically ask Mr. Morgan which stopping was knocked down by
the night shift because "we were standing there looking at this
area" (Tr. 286). He also confirmed that Mr. Morgan did not ask
him why he was issuing the order or indicate to him that he had
just knocked the stopping down, and that Mr. Morgan stated "the

1644

stopping was knocked down by the midnight and we hung the ventilation curtains" (Tr. 288). Mr. Shriver stated that he did not
ask the men on Mr. Morgan's shift who informed him that they were
assigned to clean the area whether or not they had knocked down
the stopping (Tr. 289). He also did not ask Mr. Morgan whether
they had just knocked the stopping down (Tr. 290).
Wesley Dobbs testified that he is employed in the respondent• s safety department as an accident prevention officer, and
he confirmed that he arrived on the section at approximately
11:00 a.m. on the day of the inspection and was with the inspector and Mr. Grimes. After confirming that they were on the
intake escapeway, the inspector told him that "there could be a
problem" and Mr. Dobbs left to get Mr. Morgan. When they
returned, the inspector informed Mr. Dobbs that he was issuing a
section 104(d) (2) order for obstruction of the walkway to the
intake, and at that point Mr. Morgan informed the inspector that
he had removed the intake stopping and had installed a check
curtain (Tr. 298). Mr. Dobbs identified the two stoppings in
question, and stated that Mr. Morgan informed the inspector that
he had removed the stopping between the intake and track entry,
and Mr. Dobbs surmised that the midnight shift had removed the
belt and 4rack stopping (Tr. 299-300).
Mr. Dobbs stated that there is a priority for removing
stoppings, and that the belt and track stopping has to be removed
first so as to avoid warm air and dust in the loading area (Tr.
301-302) .
If he were advancing the face, he would remove that
stopping first, but he could not recall the inspector asking
Mr. Morgan which stopping he removed. The inspector informed him
(Dobbs) that he was issuing the order because of the obstructions
on the walkway and that people could not pass through (Tr. 303).
Mr. Dobbs observed the cited conditions, and he stated that the
materials were on the right side and that there was a 30-inch
opening on the left side which he measured with a tape, and that
the area was only partially obstructed. He believed that a miner
could walk through the opening and that the inspector himself
walked through it and he is a "large man" (Tr. 305).
Mr. Dobbs confirmed that he observed the water in the intake
escapeway and he described the location as a "low place in the
entry." He also observed an area along the left rib where it
appeared that "the scoop had been trying to push some dirt, or
something, so that the dirt was up on the left rib where persons,
that you could see, had been walking on that dirt going up the
intake" (Tr. 306). The water was draining to the low spot, and a
pump was functioning and pumping water, but because of a problem
with the bearings, it was "not pumping as it should be" (Tr.
306) •
On cross-examination, Mr. Dobbs stated that when he discussed the order with the inspector after it was issued, he did

1645

not give the inspector the impression that the stopping had been
knocked out on Mr. Morgan's shift. He recalled that Mr. Morgan
gave that impression to the inspector, but that he (Dobbs) had no
underground notes to confirm this, and that the only notation he
made underground was in reference to the walkway opening that he
had measured (Tr. 311-312).
Mr. Morgan was recalled, and he confirmed that during a
ventilation move, the belt and track stopping would be removed
first to keep the face ventilated and to avoid gas on the face
(Tr. 315).
He confirmed that when he was discussing the matter
with the inspector, they were standing in the track entry near
the location where the accumulated materials were observed (Tr.
316) .
Insnector Shriver was recalled, and he stated that he did
not see Mr. Dobbs make any measurements of the walkway area in
question.
He did not observe Mr. Morgan and Mr. Dobbs walk
through the area unimpeded, but did not know whether they may
have done so out of his presence (Tr. 317). He agreed that it
was quite possible that Mr. Dobbs and Mr. Morgan had one stopping
in mind, and that he had another one in mind at the time of their
discussion underground (Tr. 320). He also agreed that the belt
and track stopping should have come down first, and assuming that
it was taken down by the night shift, he would be looking at the
other stopping when he arrived on the section, but that
Mr. Morgan did not tell him that his shift had removed any
stopping (Tr. 321).
Findings and Conclusions
Fact of Violation - Order No. 3117868, 30 C.F.R.

§

77.404(a)

The respondent is charged with a violation of mandatory
safety standard 30 c~F.R. § 77.404(a), for operating a dozer with
two broken "cat" Ci:" track pads. The cited standard provides as
follows:
"(a)
Mobile and stationary machinery and equipment
shall be maintained in safe operating condition and machinery or
equipment in unsafe condition shall be removed from service
immediately."
The issue presented here is whether or not the evidence
establishes that the broken dozer pads in question placed the
machine in an unsafe condition while it was being operated.
If
it is found that the dozer was in an unsafe condition, section
77.404(a), would require it to be removed from service immediately.
In defense of the violation, the respondent relies on the
testimony of its two witnesses who were of the opinion that the
primary purpose of the pads is to provide traction for the dozer,
and that operating it with two partially broken pads is not
unsafe.

1646

The respondent's characterization of Mr. Ware and
Mr. Linville as "expert witnesses" is inaccurate. I have
reviewed the transcript and find that these witnesses were not
offered or accepted as "experts." The record reflects that
Mr. Ware has 23 years of experience as a journeyman and master
mechanic, and he has serviced and operated D-7 dozers. However,
I take note of the fact that when he was describing the servicing
aspects of the machine, he "thought" that the right track was
used to refuel the machine, and that "maybe" it was used for
checking the oil, but did not know.
If he were an "expert," one
would reasonably expect him to know with more certainty the
locations where this work would be performed.
With regard to Mr. Linville, he is a certified electrician
with 27 years of experience "working with or around heavy equipment." He co,nfirmed that he was not the foreman when the citation was issued, and I find nothing in his testimony to indicate
that he has ever personally operated a D-7 dozer or personally
performed any maintenance work on one. Under the circumstances,
I have not considered Mr. Ware or Mr. Linville as experts, and
cannot conclude that their testimony is entitled to ~ny greater
weight than the other witnesses who testified in this case.
In response to a question as to whether he believed that the
operation of a dozer with two half-broken pads would render the
machine unsafe to operate, Mr. Ware responded "no." However, he
went on to explain his answer, and stated that there was nothing
in his "books" (I assume he was referring to some kind of an
operation manual), to suggest that a broken pad is a reason for
not operating the machine~ He further qualified his answer when
he stated "as far as operation of the machine is concerned,"
broken pads would not loosen the tracks or affect their traction.
The thrust of Mr. Ware's testimony focuses primarily on the
operation of the machine, rather than the safety implications of
broken pads.
Mr. Linville-was of the opinion that dozer tracks are not
designed to be utilized as a "walkway," and that their primary
purpose is to provide traction. He believed that two half-broken
pads would result in a minimal loss of traction, and would not
render the machine unsafe to operate. Mr. Linville's view of the
safety hazards concerning a dozer which is operated with broken
pads, and his opinion that operating a machine in that condition
is not unsafe, may be summarized by his statements that a dozer
operator should watch where he is stepping, and that Mr. Bice's
injury, which occurred when he stepped through a hole created by
broken track pads, could have been avoided if he were looking
where he was walking.
Mr. Ware agreed that the "upper portion of the track" on a
D-7 dozer is utilized as a walkway for the operator to mount and
dismount the machine, and stated that the use of the tracks "is

1647

about the only way you can get in" the machine. He also conceded
that a broken pad would not be visible at night. Although he
stated that an operator -11 0.sually" mounts the machine from the
front, the machine operators who testified credibly in this case
indicated that they would mount and dismount the machine from
either side, depending on the prevailing conditions, and used the
tracks to reach the operator's compartment or to perform preshift
and onshift servicing such as refueling or oiling, or to check
the transmission or water levels.
Mr. Linville conceded that the only way a dozer operator can
reach the operating cab of the machine is to step up and on the
tracks, and that the machine lighting may not be adequate for an
operator operating the machine at night when he initially mounts
the machine, and before he has an opportunity to turn on the
lights.
I conclude and find that the dozer tracks, including the
pads, are and integral and functional part of the machine, and
that the tracks and pads were used by the operators to facilitate
the mounting and dismounting of the machine, as well as for
servicing the machine as required. Even though the tracks and
pads may have been designed to provide machine traction, their
regular and normal use by the operators in the manner described
may not be divorced from the safety requirements found in section
77.404(a).
The respondent's assertions that the inspector did not view
the cited conditions, was not an expert, and should have cited
another standard if he believed that the broken pads presented a
stumbling or tripping hazard are not persuasive. The issue is
whether or nO't the broken pads rendered the machine unsafe within
the meaning of section 77.404(a), and whether there is a preponderance of credible and probative evidence to support a
violation.
Dozer operator Barnett, who had recorded the cited broken
pads on his operator's checklist, testified and noted that he
"almost fell through the broken pads," and he believed that
missing pads pose a risk to his safety because he wanted to
concentrate on the operation of his machine when he is working on
the slope and bench areas, and did not wish to be distracted by
worrying about any broken pads. He testified that he used the
dozer tracks to service the machine, and that he mounted and
mismounted the machine from both sides.
Dozer operator Kincell believed that missing or broken pads
posed a risk to him, particularly during the winter season before
daylight when he cannot see any broken pads on the track walkway.
He also testified that the tracks are inherently dangerous when
they are wet and slippery, and that when the mud from the refuse
area where he operates his machine adheres to the tracks, he

1648

would be unaware of a broken pad unless he stepped on it or the
mud fell out of it. He also believed that it is impractical to
expect him to recall whether a pad is broken, particularly when
he is concentrating on operating the machine. Mr. Kincell confirmed that he has worked as a mechanic and has repaired dozer
pads.
Dozer operator Bice testified that he strained his back when
he stopped his machine to oil it and stepped into a hole created
from a partially broken pad while he was attempting to leave the
machine. Mr. Bice confirmed that 3 or 4 years earlier, he
slipped on a slippery track pad which was otherwise in good
condition, and broke his tail bone. He believed that a broken
pad posed a risk or hazard to him, and that it is always not easy
to see a broken pad because of the ground conditions and poor
lighting. He also confirmed that he used the tracks on both
sides of the machine as a means of exiting the machine depending
on the circumstances presented.
Having viewed the equipment operators in the course of their
testimony, I find them to be credible witnesses. After consideration of all of the testimony presented in this case, I conclude
and find that the testimony of the equipment operators who operated the D-7 dozers clearly establishes that the broken pads on
the cited dozer rendered it unsafe to operate, and that the
respondent's failure to immediately remove it from service when
the condition was discovered and reported constitutes a violation
of section 77.404(a). Further, the fact that no other inspector
had previously cited broken pads as a violation did not estop the
inspector in this case from making such a finding.
See: King
Knob Coal Company, Inc., 3 FMSHRC 1417, 1422 (June 1980); Midwest
Minerals Coal Company, Inc. 3 FMSHRC 1417 (January 1981);
Missouri Gravel Co., 3 FMSHRC 1465 (June 1981); Servtex Materials
Company, 5 FMSHRC 1359 (July 1983); Emery Mining Corporation v.
Secretary of Labor, 3 MSHC 1585, the Tenth Circuit's Affirmance
of the Commission's decision at 5 FMSHRC 1400 (August 1983).
In view of the foregoing findings and conclusions, I conclude and find that the petitioner has established a violation by
a preponderance of the evidence. Accordingly, the violation
issued by the inspector IS AFFIRMED.
Fact of Violation - Order No. 2944318, 30 C.F.R.

§

75.1704

The respondent is charged with a violation of mandatory
safety standard 30 C.F.R. § 75.1704, for failing to maintain the
cited intake escapeway free of obstructions so as to insure
passage of miners or disabled miners. The cited standard provides in relevant part as follows:
Except as provided in §§ 75.1705 and 75.1706, at
least two separate and distinct travelable passageways

1649

which are maintained to insure passage at all times of
any person, including disabled persons, and which are
to be designated as escapeways, at least one of which
is ventilated with intake air, shall be provided from
each working section continuous to the surface escape
drift opening, or continuous to the escape shaft or
slope facilities to the surface, as appropriate, and
shall be maintained in safe condition and properly
marked. * * * (emphasis added).
In support of the violation, MSHA takes the position that
the inspector's testimony, as corroborated by the detailed notes
which he made at the time of his inspection, establishes that the
intake escapeway was obstructed by the materials which he
observed and inventoried in the escapeway crosscut, as well as
the deep waterhole and ledge which he found in the intake entry
one crosscut outby the location of the materials. Notwithstanding the respondent's testimony which contradicts the inspector's
belief that the accumulated materials in the escapeway crosscut
obstructed and impeded travel through the area, MSHA believes
that the inspector's fully documented account of the conditions
should be credited over the respondent's undocumented account of
the conditions.
With regard to the waterhole, MSHA asserts that the fact
that a scoop was undeniably stuck in the waterhole and had to be
winched out would tend to support the inspector's conclusion that
the waterhole was large enough and deep enough to prevent travel
by a crawling or limping miner using the escapeway in an emergency. MSHA maintains that the intake escapeway is designated to
be the most assuredly safe means of escape since the other
entries (track, or belt) have equipment that may be the source of
smoke or fire.
Citing two decisions by Commission Judges affirming violations of section 75.1704, MSHA concludes that standing
water of the depths found in the present case constitutes hazardous conditions. See: Consolidation Coal Company, 3 FMSHRC 405
(February 1981), and Mid-Continent Resources, Inc., 11 FMSHRC
2456, 2499 (Decem0er 1989).
In support of its case, the respondent argues that the
requirements of sections 75.1704 and 75.1704-l(a), are not mandatory, and it cites· the Commission's decision in Utah Power and
Light Company, 11 FMSHRC 1926 (October 1989), in support of this
conclusion.
I have reviewed this decision, and for the reasons
which follow, I find that it is distinguishable from the instant
case and that the respondent's reliance on that decision is
misplaced.
In the Utah Power and Light Company case, the operator was
initially cited for a violation of section 75.1704-1, and the
citation was subsequently modified to allege a violation of
section 75.1704. The operator was cited with a failure to meet

1650

the criteria by which MSHA was to be guided in approving escapeways (5 foot height requirements). Apart from the alleged failure by the operator to comply with the criteria, the parties
stipulated that the cited portion of the escapeway was fully
passable by all persons, including disabled persons. On the
basis of these stipulations, Judge Morris vacated the citation on
the ground that the criteria relied on by the inspector in support of the violation were not mandatory requirements, and that
the proper test for determining the adequacy of escapeways pursuant to section 75.1704, is whether they are maintained to
insure passage at all times of any person, including disabled
persons.
The Commission affirmed Judge Morris' decision, and agreed
with his findings that section 75.1704-l(a) does not impose a
mandatory duty on a mine operator to either maintain escapeways
in accordance with the subject criteria or to seek prior approval
from MSHA for non-conformance with the criteria. However, the
Commission, at 11 FMSHRC 1930, stated that the relevant language
found in section 75.1704, was plain and unambiguous and established a general functional test of "passability" as•enunciated
by Judge Morris.
I take note of the fact that the Commission affirmed Judge
Morris' decision in a companion Utah Power and Light Company case
upholding a violation of section 75.1704, on the basis of evidence establishing that an escapeway was obstructed with loose
coal and a 6-inch water line which was angled across the.escapeway, resulting in tripping, slipping, and falling hazards.
In
his decision at 10 FMSHRC 71, 78 (January 1988), Judge Morris
observed that "In an emergency, men traveling the route will need
the best possible avenue of escape, and their lives may depend on
how well the escapeway is marked and maintained." In his decision in Mid-Continent Resources, Inc., supra, at 11 FMSHRC 2499,
Judge Morris rejected the operator's contention that miners, or
miners carrying a stretcher, could pass through a 3-foot walkway
on the "up-dip" side of a water hole obstructing an escapeway
without coming into contact with the hole, and he stated as
follows:
"I reject the operator's views; escapeways can often be
filled with smoke and involve confused miners. And what of a
mine crawling the escapeway. Is he to somehow find a three-foot
walkway on the up-dip side?"
In the instant case, the respondent is not charged with a
violation of the escapeway criteria rejected by the Commission in
the Utah Power and Light Company case, and the inspector did not
rely on that section or the escapeway height criteria when he
issued the violation. Accordingly, the respondent's reliance on
that decision is rejected.
I take note of my prior decision in
southern Ohio Coal Company, 11 FMSHRC 1705, 1728 (September
1989), affirming a violation of section 75.1704, which was issued
at the Martinka No. 1 Mine.
In that case, I concluded that

1651

section 75.1704, contains two basic requirements, namely,
(1) that an escapeway b~ maintained to insure passage of miners
at all times, and (2) that escapeways be maintained in a safe
condition.
I reaffirm and adopt those conclusions as the parameters under which the application of this standard should be
considered in this case. See also: Peggs Run Coal company,
1 MSHC 1342, 1346 (1975), affirming a Judge's decision that an
operator failed to comply with the standard where water and roof
conditions posed difficulties and risks to disabled miners;
U.S. Steel Company, 6 FMSHRC 310, 313-314 (February 1984), holding that it is imperative that escapeways be maintained in a
manner that they may be available and usable to escape from
hazardous conditions; and Consolidation Coal Company, 2 FMSHRC
1809 (July 1980), holding that section 75.1704 imposes an absolute duty on a mine operator to assure that escapeways are maintained in a safe condition.
In further support of its case, the respondent relies on the
testimony of Mr. Morgan and Mr. Dobbs who indicated that the
accumulated materials were only partially obstructing the escapeway, and that there was a clear 30-inch walkway at the left rib
which was readily passable. With regard to the water hole in
question, the respondent does not dispute the existence of the
water or the hole and concedes that the water accumulation was
present at the first outby crosscut. However, it maintains that
the water was a natural condition located in a low area of the
mine where water accumuiated, and that it was being pumped out.
Respondent also points out that a considerable amount of water is
pumped from the mine and that the inspector did not dispute this
fact.
Section ?oreman Morgan did not dispute the existence of the
conditions.
However, he testified that there was a 30-inch
walkway through the left side of crosscut area which would allow
someone to walk through, and he observed that nothing was blocking the walkway. He conceded that the walkway had not been
established as sucp, claimed that he was in the process of establishing the walkway when the inspector arrived on the section,
but conceded that none of the materials had been removed before
the inspector observed them.
Mr. Morgan disputed the testimony of the inspector and
Mr. Grimes that they had to step over the accumulated materials,
and denied that he had to step over any of the materials when he
walked the area.
In his opinion, a disabled miner could safely
pass through the area in an emergency. He confirmed that he did
not observe the accumulated materials when he initially
fire-bossed the section because they were located behind the
stopping which was still intact, but conceded that the escapeway
was partially obstructed, and that he observed this condition
after the stopping was knocked down. He further confirmed that
after knocking down a stopping, his first priority would be to

1652

establish the ventilation, and he would next attend to and clean
up any walkway accumulations.
Mr. Morgan confirmed that he made no notes or sketches at
the time of the inspection and that his testimony was based on
his "recollection." When asked if he was surprised about the
existence of the materials behind the stopping before it was
knocked down, Mr. Morgan responded "I didn't realize there was so
much there." Although he indicated that he had instructed his
crew to clean up the materials during the first part of the shift
when the stopping was knocked down, the respondent called no crew
members to testify about any cleaning up of the materials.
Mr. Dobbs testified that the materials accumulated behind
the intake escapeway stopping were on the right side as one
looked into the area from the entry, and that he measured a
30-inch opening or walkway on the left side. He characterized
the area as "partially obstructed," and stated that the inspector
walked through the opening. Mr. Dobbs also observed the water in
the intake escapeway, and he described it as a "low place in the
entry" where the water was draining to the low spot, and although
he believed that a pump in that area was functioning, he conceded
t.hat it was "not pumping as it should be." He also described an
area along the left rib where he believed that a scoop had
attempted to push some dirt, and that people had walked on the
dirt going up the intake. Mr. Dobbs confirmed that with the
exception of a notation which he made with respect to his measurement of the 30-inch "walkway," he made no other notes at the
time of the inspection.
The testimony of Inspector Shriver is documented by his
detailed notes and sketches made at the time of his inspection,
and the information recorded by the inspector with respect to the
accumulated materials and the accumulated water and water hole
were detailed in the order which he issued. The inspector's
comprehensive testimony detailing these conditions was corroborated by one of the respondent's employee's (Patrick Grimes), a
member of the mine safety committee who accompanied the inspector
during the inspection.
Although Inspector Shriver confirmed that there was a walkway present in the area where the accumulated materials were
discovered, he stated that the area was still obstructed with the
materials and that he had to climb over them with care and difficulty. He did not observe Mr. Morgan measure the walkway opening, nor did he observe Mr. Morgan or Mr. Dobbs walking freely
through the opening, and I take note of the fact that Mr. Morgan
conceded that the so-called "walkway" had not been established as
such and that none of the materials had been removed before the
inspector observed them.
I find both Mr. Grimes and Inspector
Shriver to be credible witnesses, and their testimony is corroborated by the detailed notes made by the inspector at the time of

1653

the inspection.
I credit their testimony over the testimony of
Mr. Dobbs and Mr. Morgan, and reject their contention that the
walkway presented a clear and unobstructed passageway through the
accumulated materials.
I further find the inspector's testimony regarding the
existence of 30 foot area of water and mud 12 inches deep, and a
water hole approximately 40 feet long, rib-to-rib, 12 inches deep
and with a drop-off of approximately 2 feet, to be credible, and
I reject Mr. Dobbs' suggestion that there was a clear passageway
along the rib to allow clear passage of people at this location.
I accept as credible the inspector's belief that the intake
escapeway area which was obstructed by the accumulated materials,
and the areas obstructed by the slippery and muddy waterholes or
areas, presented potential hazards to any injured or disabled
miners, including miners assisting them, in the event they had to
use the escapeway in an emergency situation.
Section 75.1704, requires that an intake escapeway be maintained to insure passage at all times, and that it be maintained
in a safe condition and properly marked. Although the escapeway
was properly marked and designated, I conclude and find that it
was not maintained in a safe condition, nor was it maintained to
insure passage at all times by those miners who may have had a
need to use it in an emergency to escape from the mine. Although
there were other available escapeways, the cited intake escapeway
in question was not maintained as required by section 75.1704.
Accordingly, I conclude and find that MSHA has established a
violation by a preponderance of the credible and probative evidence adduced in this case, and the contested violation 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 coa~ 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

1654

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
involved, Secretary of Labor v. Texasgulf, Inc., 10 FMSHRC 498
(April 1988); Youghiogheny & Ohio Coal Company, 9 FMSHRC 2007
(December 1987).
Order No. 3117868 - 30 C.F.R. § 77.404(a)
I have concluded and found that the broken dozer pads cited
by the inspector rendered the cited dozer in an unsafe condition
while it was operated in that condition.
Inspector Allen testified credibly that-the inability of an operator to see a broken
pad because of poor visibility, or because of the presence of
caked mud, would likely result in a slip or fall off the machine,
and that should this occur, it would result in injuries such as
lacerations, strains, sprains, or fractures.
He also believed
that such occurrences were likely in view of the fact that the
dozer operates in the refuse area of the mine which is muddy and
wet, and that even in cases where the pads are not broken, the
tracks are slippery as a result of operating under such
conditions.
The evidence establishes that dozer operator Bice suffered a
strained back when he stepped through a hole created by a partially broken pad while leaving the machine.
Dozer operator
Barnett testified that he nearly fell through a broken pad, and
both he and the other equipment operators testified credibly that

1655

a broken pad exposed them to hazards. Under the circumstances, I
conclude and find that the partially broken pads in question
constituted a condition· which would reasonably likely contribute
to an injury, and that it was reasonably likely that the injury
would be one of a reasonably serious nature. Accordingly, the
inspector's significant and substantial (S&S) finding IS
AFFIRMED.
Order No. 2944318 - 30 C.F.R.

§

75.1704

Inspector Shriver testified credibly that the cited
obstructed escapeway areas in question exposed miners, as well as
disabled miners, to tripping, falling, or slipping hazards while
attempting to travel the obstructed escapeway, and that miners
would have difficulty reaching some of the self rescuers stored
in the area because they would have to climb over some of the
accumulated materials to reach them. He believed that any miners
using the obstructed escapeway in an emergency, particularly
while carrying out any disabled miners on stretchers, would
reasonably iikely suffer injuries. In the event of a mine disaster, their visibility would be affected if any smoke coursed
through the escapeway while they were attempting an escape, and
they could be unaware of the existence of the water and water
hole and have difficulty in traveling through those areas and
could conceivably be drowned or rendered unconscious if they were
to fall or slip in these areas.
Although it may be true that other escapeways were provided,
and they were equipped with self rescuers, and that the mine
visitors in question had received training, the fact remains that
the cited intake escapeway was not maintained in a safe condition, and was not maintained free of obstructions so as to permit
safe travel at all times. Under the circumstances, I conclude
and find that the evidence establishes that the violation was
significant and substantial, and the inspector's finding in this
regard IS AFFIRMED.
The Unwarrantable "Failure Issue
The governing definition of unwarrantable failure was
explained in Zeigler Coal Company, 7 IBMA 280 (1977), decided
under the 1969 Act, and it held in pertinent part as follows at
295-96:
In light of the foregoing, we hold that an inspector should find that a violation of any mandatory
standard was caused by an unwarrantable failure to
comply with such standard if he determines that the
operator involved has failed to abate the conditions or
practices constituting such violation, conditions or
practices the operator knew or should have known
existed or which it failed to abate because of a lack

1656

of due diligence, or because of indifference or lack of
reasonable care.
In several recent 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
dis~inct 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. * * *
Order No. 3117868 - 30 C.F.R.

§

77.404(a)

Inspector Allen confirmed that he based his unwarrantable
failure finding in this case on the fact that the cited broken
pads condition was known to foreman Richards and superintendent
Haught, and that the dozer was permitted to continue to operate
and was not taken out of service. The evidence made available to
the inspector at the time of his inspection reflects that the
broken pads were reported by the dozer operator on May 16, 1989,
and that Mr. Richards acknowledged that this was the case. New

1657

replacement pads were ordered and received on May 17 or 18, but
were not installed on the dozer until May 19, 1989. The inspector confirmed that mine management gave him no reason for not
installing the pads when they were received, and he believed that
the pads could have been readily installed by removing and
replacing four bolts.
Mr. Richards and Mr. Haught did not testify in this case.
Mr. Ware identified a copy of a work order dated May 19, 1989,
which reflects that he replaced three broken pads on the dozer,
and he testified that he performed the work between May 19 and
23, 1989. Mr. Linville, who was not the foreman at the time the
order was issued, considered broken pads to be normal "wear and
tear" items, and although he contended that broken pads would be
replaced "in due time," he confirmed that in the past he would
not shutdown a machine because of broken pads.
Dozer operator Barnett testified credibly that he reported
the broken pads condition on May 16, 1989, when he filled out an
operator's checklist, and gave this information to Mr. Richards.
Even though Mr. Barnett made a notation on the form that he
"almost fell through the broken pads," Mr. Richards apparently
took no action to repair the machine that day or to take it out
of service. As a matter of fact, a "safety contact" made by
Mr. Richards with an employee on May 19, 1989, reflects that
Mr. Richards was aware of the two broken pads on the cited
machine as of that date, and he simply cautioned the employee to
insure that the pads were down when he stopped his machine, and
instructed him to leave the machine from the right side (exhibit
R-2-J). Mr. Richards' failure to take the machine out of service
or to timely repair the pads corroborates Mr. Barnett's
unrebutted testimony that prior to Mr. Bice's injury, the respondent permitted or instructed the equipment operators to operate
the dozers with broken pads.
After careful consideration of all of the testimony and
evidence in this case, I conclude and find that the inspector's
high negligence and unwarrantable failure findings were justified.
I find nothing of record to mitigate the respondent's
failure to timely repair the dozer or take it out of service when
the condition was first reported to mine management. The respondent knew of Mr. Bice's injury some 2 or 3-months earlier, and
its accident prevention officer Dobbs filed an accident report
which specifically points out that Mr. Bice strained his back
when he stepped into a hole "created from a partially broken
track pad" (exhibit P-4-D). Mr. Barnett's report of May 16,
1989, to Mr. Richards informed him that the cited dozer had two
broken pads, and the report contained a notation by Mr. Barnett
that he "almost fell through broken pads" (exhibit P-4-E).
Rather than taking immediate or more timely action to correct an
obviously hazardous condition which it was clearly aware of, mine

1658

management not only permitted the equipment to continue to operate with broken pads, a condition which was the proximate cause
of Mr. Bice's injury and Mr. Barnett's "near miss, 11 -it expected
the operators to continue operating the equipment in that condition. Under all of these circumstances, I conclude and find that
mine management's failure to act was unjustified and inexcusable,
and constitutes aggravated conduct. The inspector's unwarrantable failure finding is therefore AFFIRMED.
Order No. 2944318 - 30 C.F.R. § 75.1704
Inspector Shriver's unwarrantable failure finding was based
on his belief that the water hole had existed for 2 or 3 days.
He observed evidence that a scoop had difficulty traveling
through the hole, and he was informed that a chain was used to
pull the scoop through the area for 2 or 3 days. Although he
believed that the hole had been present for "several shifts,"
there is no evidence that he reviewed any of the shift or preshift reports to determine whether the condition had been
reported. He confirmed that section foreman Morgan appeared
surprised at the existence of the hole. The evidence establishes
that the hole was located at a low spot where water naturally
drained, that the mine released a great deal of water, and that a
pump had been installed in the area as a means of controlling and
pumping the water. Although the pump may not have operating at
peak efficiency, I cannot conclude that the respondent ignored
this condition, and the existence of the pump establishes that
some effort was being made to address the problem.
With regard to the 3 foot "stepup" location, Mr. Shriver
indicated that he had previously visited the area during a
"prestart" inspection, and next returned on May 1, 1989, when he
found that the respondent had placed some rock dust bags in the
area to provide a means of crossing tbe "stepup." He issued a
citation after determining that the bags were "of no consequence," and informed the respondent of a "possible problem" and
that additional a~tention should be given to the escapeway. The
inspector conceded that the respondent had made some effort to
address this problem.
With respect to the accumulated materials which were in the
crosscut area where the escapeway was being rerouted, the testimony is in dispute as to whether or not the stopping at that
location had been knocked down by the previous night shift or
during foreman Morgan's day shift. The inspector believed that
the stopping which concealed the accumulated materials had been
taken down by the night shift, and although his notes do not
specifically identify the stopping, he believed it was the stopping between the track entry and intake entry. Foreman Morgan
testified that the belt stopping had been knocked down by the
night shift, and that his day shift knocked down the stopping
which concealed the materials.
If the stopping had been knocked

1659

down by the night shift, the inspector believed that there was
enough time to clean up the materials during the 2 or 3 hour
interval between shifts. If the stopping were knocked down
during Mr. Morgan's shift, the inspector conceded that there was
insufficient time to clean up the accumulated materials.
The inspector confirmed that he did not ask Mr. Morgan
whether the stopping which had concealed the accumulated materials had just been knocked down on his shift, and he made no
inquiries of the miners on the shift as to whether or not they
had knocked the stopping down on their shift. The inspector
conceded that it was quite possible that Mr. Morgan and Mr. Dobbs
had one stopping in mind, and that he had another one in mind at
the time of their discussions underground, and he agreed that the
belt and track stopping should have been knocked down first.
Assuming that this were the case, he further agreed that he would
have been looking at the other stopping, which Mr. Morgan claimed
was the stopping which concealed the materials, when he arrived
on the section.
The inspector confirmed that there is no time limitation
with respect to the removal or clean up of accumulated materials,
and given the fact that the escapeway was being rerouted, the
uncertainty as to whether the stopping was knocked down during
the night shift or day shift, and the fact that the respondent
was establishing the ventilation on the section, I cannot conclude that the respondent was dilatory in removing the accumulated materials, or that it was aware of the materials over any
inordinate period of time. Coupled with the fact that the
respondent was making an effort to address the other conditions
which obstructed the escapeway, I cannot conclude that the violation was the·result of any aggravated conduct on the part of the
respondent. To the contrary, I conclude and find that the violation resulted from mine management's inattention and failure to
exercise reasonable care. Under the circumstances, the inspector's unwarrantable failure finding IS VACATED, and the order IS
MODIFIED to a section 104(a) citation with significant and substantial (S&S) findings, and as modified, the citation IS
AFFIRMED.
Size of Business and Effect of Civil Penalty Assessment on the
Respondent's Ability to Continue in Business
I conclude and find that the respondent is a large mine
operator and that the civil penalty assessments for the violations in question will not adversely affect the respondent's
ability to continue in business.
History of Prior Violations
The respondent's history of prior violations, as reflected
by an MSHA computer print-out, (exhibit P-3), shows that for the

1660

period April 26, 1987 through April 25, 1989, the respondent paid
$251,000 for 1,047 violations issued at the Martinka No. 1 Mine.
One-thousand and sixteen (1,016), were for violations found to be
significant and substantial (S&S), and twenty-five (25) were for
violations of section 75.1704. No prior violations of section
77.404(a), are noted• MSHA has not argued or suggested that the
respondent's compliance record warrants any additional increases
to its proposed civil penalty assessments, and I assume that it
considered the respondent's history of compliance when the
assessments were initially made.
In any event, I have considered
this compliance history in the assessments which I have made for
the violations which have been affirmed.
Good Faith Compliance
The record reflects that the escapeway violation was abated
within 2 or 3 hours of the issuance of the order on March 24,
1989, by the removal of the accumulated materials and the building of bridges over the water-accumulations. With regard to the
broken dozer pads violation, the record reflects that the condition had been corrected at the time the violation was issued.
I
conclude and find that both violations were timely abated by the
respondent in good faith and I have taken this into
consideration.
·
Negligence
On the basis of my unwarrantable failure finding with
respect to the broken dozer pads violation, which are incorporated by reference, I conclude and find that the violation
resulted from a high degree of negligence on the part of the
respondent. With respect to the escapeway violation, I conclude
and find that the violation resulted from the respondent's failure to exercise reasonable care, and that this constitutes ordinary negligence.
Gravity
In view of my 11 S&S 11 findings and conclusions, which are
incorporated by reference, I conclude and find that both of the
contested violations were serious.
Civil Penalty Assessments
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the
Act, I conclude and find that the proposed civil penalty assessment of $1,000, is reasonable and appropriate for a violation of
mandatory safety standard 77.404(a), as stated in section
104(qJ (2) Order No. 3117868, May 23, 1989. I further conclude
and find that a civil penalty assessment of $675 is reasonable

1661

and appropriate for a violation of mandatory safety standard
75.1704, as stated in the modified section 104(a) citation
No. 2944318, May 24, 1989.
Settled Violations
The parties settled three of the contested section 104(d) (2)
orders in this case (Nos. 3112683, 3112684, 3118284). MSHA filed
a posthearing motion pursuant to Commission Rule 30, 29 C.F.R.
§ 2700.30, seeking approval of the proposed settlement.
Order
No. 3118284 was modified to a section 104(a) citation, and the
proposed civil penalty assessment was reduced from $1,000 to
$395. With regard to Order No. 3112684, MSHA confirmed that the
respondent has agreed to accept the findings of the inspector and
has agreed to pay the full amount of the proposed civil penalty
assessment of $950 for the violation in question. With respect
to Order No. 3112683, MSHA has agreed to vacate the order.
MSHA submitted a discussion and disclosure as to the facts
and circumstances surround the issuance of the orders in question, and a reasonable justification for the settlement disposition of the violations. MSHA also submitted information
pertaining to the six statutory civil penalty criteria found in
section llO(i) of the Act, and it believes that the resulting
cumulative civil penalty assessment of $1,345 for the two orders
which have been settled is fair and reasonable and will ef f ectuate the purposes of the Act.
After careful review and consideration of the pleadings, and
the submissions in support of the motion to approve the settlement disposition of these orders, I conclude and find that it is
reasonable and in the public interest. Accordingly, the motion
is granted, and the settlement IS APPROVED.
ORDER
The responden~ IS ORDERED to pay the following civil penalty
assessments for the aforementioned violations which have been
affirmed and/or settled in this proceeding:
Citation/Order No.
3118284
3117868
2944318
3112683
3112684

30 C.F.R. Section
75.220
77.404(a)
75.1704
75.1403
75.303

05/15/89
05/23/89
05/24/89
05/30/89
05/30/89

1662

Assessment
$ 395
$1,000
$ 675
Vacated
$ 950

Payment of the aforementioned civil penalties shall be made
to MSHA within thirty (30) days of the date of this decision and
order, and upon receipt of payment, this proceeding is dismissed.

kA./40~

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)
Rebecca J. Zuleski, Esq., FURBEE, AMOS, WEBB & CRITCHFIELD,
Attorneys at Law, 5000 Hampton Center, Suite 4, Morgantown, WV
26505 (Certified Mail)
/fb

1663

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

AUG
WYOMING FUEL COMPANY,
Contestant

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

61990

.
.
.
.
.
.

CONTEST PROCEEDINGS
Docket No. WEST 90-238-R
Order No. 3077023; 6/12/90
Golden Eagle Mine
Mine ID 05-02820

DECISION
Appearances:

Before:

Lawrence J. Corte, Esq., Lakewood, Colorado, for
Lakewood, Colorado, for the Contestant;
Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Respondent.

Judge Morris

This case is before me pursuant to section 105(d) of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq., (the "Act"), to challenge an order issued under section
107(a) of the Act to Wyoming Fuel Company ("WFC").
After notice to the parties an expedited hearing on the
merits was held in Denver, Colorado, on June 26, 1990.

-

The parties filed post-trial briefs.
Procedural Issues
The judge believes certain procedural issues should be
initially considered.
WFC moved for an expedited hearing. The Secretary opposed
the motion in this case as she did in other unrelated cases
involving the same parties (WEST 90-112-R, WEST 90-113-R,
WEST 90-114-R, WEST 90-115-R and WEST 90-116-R).
The issue is again raised in this decision and the
Commission is invited to consider the issue anew.

1664

To support of its motion for expedition, WFC relies on the
statutory requirements set forth at section 107(a) of the Act.
The cited section provides as follows:
(e) Relief from orders; hearing; order;
expedited proceeding.
(1) Any operator notified of an
order under this section or any
representative of miners notified
of issuance, modification, or
termination of such an order may
apply to the Commission within 30
days of such notification for
reinstatement, modification or
vacation of such order. The
Commission shall forthwith afford
an opportunity for a hearing •••
and thereafter shall issue an
order. based on findings of fact.
vacating, affirming. modifying. or
terminating the Secretary's order.
The Commission and the courts may
not grant temporary relief from the
issuance of any order under
subsection (a).
(2) The Commission shall take
whatever action is necessary to
expedite proceedings under this
subsection.
(§ 107 (e), (1) and
(2), Emphasis added).
In opposition to the motion the Secretary states the section
107(a) order in this case and other cases were modified to permit
mining activity. The Secretary also contends that if all orders
issued under section 107 were expedited on request, there would
no longer be any capability for expeditious hearings.
The Secretary further asserts the Congressional intent of
section 107(a) is to assist operator's where an emergency
situation exists. In short, the Secretary argues Congress
intended to allow an expedited hearing only in the case of an
active closure order, where the mine is not being allowed to
produce and it suffering a great hardship as a result of an MSHA
order.
It is also urged that the matter of whether a hearing should
be expedited rests with the sound discretion of the presiding
judge.
The Secretary also contends the Commission Rules are so
structured that expedited hearings are allowed only in emergency
situations.

1665

Discussion
It is a basic rule of construction that where the language
is clear the statute must be enforced as it is written unless it
can be established that Congress clearly intended the words to
have a different meaning. Chevron, USA v. NRDC, 467 U.S. 837,
842-43, 104 S.Ct. 2778 (1984); United States Lines v. Baldridge,
677 F.2d 940, 9.44 (D.C. Cir. 1982); Phelps Dodge Corp. v. FMSHRC,
681 F.2d 1189, 9th Cir. (1982); Freeman United Coal Mining Co., 6
FMSHRC 1577, 1578 (1984).
The statutory requirement, stripped of surplus language, is
that "any operator ••• notified of an order, etc., may apply
within 30 days •.. for a vacation of such order, etc." In such a
situation, "the Commission shall expedite· proceedings."
It is uncontroverted here that an order was issued under the
authority of section 107(a) of the Act. Further, the contest was
filed within 30 days.
The foregoing uncontroverted facts require that this case be
expedited.
I agree with the Secretary that Congress may have
intended an expedited hearing only in the event of an active
closure order. However, the wording of section 107 does not
disclose such an intent.
Further, the structure of the Commission's Rules do not
support the Secretary. Commission Rule 52, 29 C.F.R. § 2700.52,
provides as follows:
§

2700.52 Expedition of proceedings

(a) Motions. A motion of a party to expedite
proceedings may be made orally, with
concurrent notice to all parties, or served
and filed by telegram. Oral motions shall be
confirmed in writing within 24 hours.
(b) Timing of hearing. If the motion is
granted, a hearing on the merits of the case
shall not be scheduled with less than four
days notice, unless all parties consent to an
earlier hearing.
A fair reading of the statute and the Commission rules
indicate that expeditious hearings involving section 107(a)
orders are generally not left to the discretion of the presiding
judge; further, expedited hearings are not necessarily restricted
to "emergency" situations.

1666

I agree the failure to read "emergency situation" into the
Act and Rule 52 could render the expedited hearing process
meaningless. However, the writer has never found the expedited
hearing process to be burdensome, nor have any litigants
attempted to "overload" the Commission with requests for
expeditious proceedings. If this were to become a problem
interfering with the Commission's duties of adjudicating disputes
under the Mine Act, and Commission would no doubt amend Rule 52.
In such circumstances the appellate courts would accord great
deference to the Commission's interpretation of its own rules.
Lucas Coal Company v. Interior Board of Mine Operations Appeal,
522 F.2d 581 (1975).
In sum, under the Mine Act, contestant is entitled to an
expedited hearing when a section 107(a) order is involved.
If the order here had been issued under section 104(d) of
the Act there would be a totally different result. 1
Under
section 105(B) (2), (30 u.s.c. § 815(b) (B) (2)], the Commission may
grant temporary relief from a section 104(d) order only under
very restrictive conditions. These are:
(A) a hearing [before MSHA] has been held in
which all parties were given an opportunity
to be heard;
(B)
the applicant shows that there is
substantial likelihood that the findings of
the Commission will be favorable to the
applicant; and
(C)
such relief will not adversely affect
the health and safety of miners.
No temporary relief shall be granted in the case of a
citation issued under subsection (a) of (f) of section
104. The Commission shall provide a procedure for
expedited consideration of applications for temporary
relief under this paragraph.
In sum, I reaffirm my previous order granting WFC an
expedited hearing.
Stipulation
At the commencement of the hearing the parties stipulated as
follows:

1

See Order in Medicine Bow Coal Co., WEST 90-117-R, March 13,

1990.

1667

1. The -Golden Eagle Mine is owned by Wyoming Fuel Company
and the mine is subject to the Act.
2.

In 1989, the mine produced 900,000 tons of coal.

3. The Commission and Administrative Law Judge have
jurisdiction over this matter.
4. The imminent danger orders involved in this case were
properly served an the operator and can be received in evidence.
Summary of the Case
The evidence concerning the underlying facts is
uncontroverted. The conflict arises from the conclusions to be
drawn from such facts.
Donald L. Jordan and Steve Salazar, both experienced in
mining, testified in the case.
On June 12, 1990, MSHA Inspector Jordan was involved in a
saturation inspection at the Golden Eagle Mine. The operation of
this gassy mine involves a continuous miner development combined
with a retreating longwall.
At approximately 7:50 a.m., Inspector Jordan, Messers.
Salazar, the general mine foreman, and Ralph Sandoval, a union
escort, went to the northwest No. 1 tailgate section. 2
As the group started into the section they were told not to
enter the area. Section Foreman Kretoski had notified all
personnel to· stay out; he had also posted the neck of the unit.
The miners were being withdrawn because a methane concentration
in excess of 1.5 percent had been detected. Mr. Salazar
reaffirmed the order of withdrawal. Further, section mechanic
Ben Chavez was on his way to deenergize the power.
Messers. Jordan and Salazar then went to the No. 1 return
and took air samples. They agreed the methane concentration in
the area exceeded 1.5 percent.
In fact, the concentration was
1.7 percent.
(Tr. 20, 22, 66) They continued on to the No. 4
return. The methane concentrations fluctuated from .9 to 1
percent. The belt entry concentration was two-tenths of one
percent.
Inspector Jordan and Mr. Salazar then drove to the face
area. They found that a curtain in the No. 2 entry was choaking
off most of the air.
The methane concentrations at the face ranged between 0.3,
0.5 and 0.8 percent. Mr. Salazar indicated it would probably
2

This area is circled on the mine map, Exhibit C2.

1668

take the rest of the day shift for the concentration to go below
one percent.
After returning from the face the two men walked the entry,
a distance of about 1400 feet. In that distance they found the
methane concentration varied from 1.4 to 1.7 percent. (Tr. 8689)

Inspector Jordan stated he would have to write a section
107(a) Order so he would be in control of the situation. When
the order was written WFC had already withdrawn the personnel and
deenergized the power. (Tr. 69) Mr. Salazar did not believe an
imminent danger exited. (Tr. 71-84)
At 2:00 p.m., the concentration was 1.3 percent. Inspector
Jordan modified his order and he authorized production to resume
if the concentration went below one percent. At 4:30 p.m.,
mining resumed when the concentration dropped between 0.8 to 0.9
percent.
The graveyard shift mined until 4:00 a.m. At that time the
methane escalated to 1.4 percent. Mr. Salazar informed the crew
not to let it reach 1.5 percent; the crew was withdrawn.
On the 19th, MSHA Inspector Mel Shively wrote a section
104(a) citation when he found the methane concentration was still
holding at 1.2 percent. on June 21st at approximately 4:30 p.m.,
Inspector Jordan abated his prior section 107(a) order.
When the order was originally written management was
complying with 30 C.F.R. § 75.309(b).
In Mr. Salazar's opinion, Inspector Jordan issued the
section 107(a) order as a control device. Inspector Jordan
believed he was complying with his obligations under the Mine Act
when he issued the order.
Discussion
This case involves the construction of relevant portions of
the Act.
Section 107(a), under which the order here was issued,
provides for procedures to counteract dangerous conditions.
section, in part, provides as follows:
Procedures to Counteract Dangerous Conditions
Sec. 107. (a) If, upon any inspection or
investigation of a coal or other mine which is subject
to this Act, an authorized representative of the
Secretary finds that an imminent danger exists, such

1669·

The

representative shall determine the extent of the area
of such mine throughout which the danger exists, and
issue an order requiring the operator of such mine to
cause all persons, except those referred to in section
104(c), to be withdrawn from, and to be prohibited from
entering, such area until an authorized representative
of the Secretary determines that such imminent danger
and the conditions or practices which caused such
imminent danger no longer exist. The issuance of an
order under this subsection shall not preclude the
issuance of a citation under section 104 or the
proposing of a penalty under section 110.
On the facts presented here, it would appear that no
condition of imminent danger existed within the ordinary meaning
of section 107(a). The methane concentration had not reached an
explosive range. In addition, the inspector and the mine
superintendent walked inby No. 1 entry for 1400 feet.
The
methane concentrations in the walk remained constant at.1.4
percent to 1.7 percent. However, the fact that the two men
walked the entry indicates they both believed no condition of
imminent danger existed.
Congress has legislated many facets of mining. One such
mandate is set forth in 30 u.s.c. § 863(h) (2) which provides:
(2) If, when tested, a split of air returning from
any working section contains 1.5 volume per centum or
more of methane, all persons except those persons
referred to in section 814(d) of this title, shall be
withdrawn from the area of the mine endangered thereby
to a safe area and all electric power shall be cut off
from the endangered area of the mine, until the air in
such split shall contain less than 1.0 volume per
centum of methane.
[Emphasis added]
The above statutory provision has also been codified in the
Secretary in regulations at 30 C.F.R. § 75.309(b).
Whether the described methane concentrations are held to be
a "per se imminent danger" (as ruled by Judge Joseph B.
Kennedy~ or a Congressionally mandated imminent danger is not
critical to a resolution of the issues.
The meaning of the foregoing statutory provisions is
amplified by the legislative history of the 1969 Act. In
reviewing Section 204(i) (2) the Senate Committee stated as
follows:
3

Consolidation Coal Company v. Secretary of Labor, 4 FMSHRC
1960 (1982).

1670

This section requires that men be withdrawn by the
operator or inspector, if he is present, and power shut
off from a portion of a mine endangered by a split of
air returning from active underground workings
containing 1.5 percent of methane.
The presence of 1.5 percent of methane in the air
current returning from active underground working
places indicates that considerably larger amounts of
methane may be accumulating in the air at places in the
mine through which the current of air in such split has
passed. Safety requires that employees be withdrawn
from the portion of the mine which is endangered by the
possibility of an explosion of any such accumulation of
methane, and that all electric power be cut off from
such portion of the mine, until the cause of the high
percentage of methane in such returning air is
ascertained and the quantity of methane in such
returning air is reduced to no more than 1.0 percent.
Legislative History of the Federal Coal Mine Haalth and
Safety Act of 1969, at 185. To like effect see also, CF&I Steel
Corporation, 3 FMSHRC 2819, 2823 (1981) (Boltz, J.).
WFC's initial argument is that the presence of 1.7 percent
methane does not trigger a section 107(a) order because there can
be no per se imminent dangers under the Act. In support of its
position WFC relies on the frequently stated tests of imminent
danger. Old Ben Coal Corp. v. Interior Board of Mine Operations
Appeals, 523 F.2d 25, 32 (7th Cir. 1975) (quoting Freeman Coal
Mining Corp., 2 IBMA 197, 212 (1973), aff'd sub nom. Freeman Coal
Mining Co. v. Interior Board of Mine Operations Appeals, 504 F.2d
741, 743 (7th Cir. 1974)). Rochester & Pittsburgh Coal Co., 11
FMSHRC 2159, 2164 (1989).
WFC's argument should be addressed to the Congress, not to
the Commission. -The statute, as stated above, clearly defines a
1.5 percent concentration methane to be an area of the mine that
is endangered. It requires withdrawal of all miners from such an
area.
In sum, I agree with Inspector Jordan's view that:
• • • when I encounter 1.5% methane regardless of the
situation, if I am in fact present, that I am obligated
to issue an imminent danger [order] until the imminent
danger has in fact been removed (Tr. 37).
The cases relied on by WFC address the issue of "imminent
danger." However, more critically, these cases do not involve
methane concentrations exceeding 1.5 percent.

1671

The case of Mid-Continent, 1 IBMA 250, also cited by WFC,
supports the Secretary and not WFC.
In the cited case, the Board
stated that "neither the Act nor the Regulations provide that a
mere presence of methane gas in excess of 1.0 volume per centum
is, per se, a violation." 1 IBMA at 253. However, as noted,
Congress has mandated that 1.5 percent methane requires remedial
action by the operator as well as the inspector, if he is
present.
Based on Mid-Continent, WFC further suggests a method of
enforcing § 75.309 without the need of resorting to a section
107Ca) order.
MSHA can consider WFC's proposal, but this case is not a
rule-making proceeding, but a contest concerning the validity of
the order issued by the Secretary's representative.
WFC also argues that the Secretary's per ~ imminent danger
rule cannot be reconciled with pending changes proposed in her
regulations. 4
WFC states that, in her proposed changes to the regulations,
the Secretary does not require miners to be withdrawn until the
methane concentration attains 2.0 percent. 54 Fed. Reg. at 2415.
I agree.
It appears the Secretary's proposed regulations,
not yet enacted, clarify, reorganize, and update existing ventilation standards promulgated more than 15 years ago. The proposal also recognizes new technology available in mines.
The Secretary has broad rule-making powers. However, this
case is necessarily determined on existing requirements and not
on the proposed changes. The changes, which are in the proposal
state, may never be adopted.
For the foregoing reasons, I conclude that Inspector Jordan
properly issued Order 3077023. Accordingly, I enter the
following:
ORDER
The contest of Order No. 3077023 is DISMISSED.

Law Judge

4

54 Federal Register 2383, 2415 Cl988).

1672

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

AUG 81990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 89-209
A. C. No. 15-13541-03556

v.
Docket No. KENT 89-235
A. C. No. 15-13541-03557

CROSSGATES MINING COMPANY,
INCORPORATED,
Respondent

Docket No. KENT 89-236
A. C. No. 15-13541-03558
Docket No. KENT 90-66
A. C. No. 15-13541-03560
No. 1 Mine
DECISION

Appearances:

Mary Sue Taylor, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for the Secretary~
Mr. Dale A. Anderson, Vice President Administration,
Crossgates Mining Company, Incorporated, Ashland,
Kentucky, for the Respondent.

Before:

Judge Weisberger

These cases .are before me upon petitions for assessment of
civil penalty under Section 105(d) of the Federal Mina Safety and
Health Act of 1977 (the Act).
Petitioner had filed a joint
motion, with regard to Docket Nos. KENT 89-209, 89-335, and
89-236, to approve a settlement agreement and to dismiss these
cases. A reduction in penalty from $5,924 to $2,962 is proposed.
Initially, the Motion was not granted, and a hearing was
scheduled to allow the Parties to present evidence to support the
settlement. At the hearing, Petitioner made a' Motion, agreed to
by Respondent, to approve a settlement of Docket No. KENT 90-60,
proposing a reduction in penalty from $1,362 to $681.
I have considered the representations and documentation
submitted in these cases, especially the documentation ~nd
testimony presented at the hearing, on July 24, 1990, with regard
to Resoondent's financial condition.
I conclude that the
proffe~ed settlement is appropriate under the criteria set forth
in Section llO(i) of the Act.

167~

WHEREFORE, the motion for approval. of settlement is GRANTED,
and it is ORDERED that Respondent pay a penalty of $3,643 within
30 days of this order.

~it:;

Administrative Law Judge

Distribution:
Mary Sue Taylor, Esq., Office of the Solicitor, U. S. Department
of Labor, 2002 Richard Jones Road, Suite B-201, Nashville, TN
37215 (Certified Mail)
Mr. Dale A. Anderson, Vice President Administration, Grossgates
Mining Company, Incorporated, P. O. Box 989, Ashland, KY
41105-0989 (Certified Mail)
dcp

1674

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

AUG

8 1990

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
INFERNO COALS INCORPORATED,
Respondent

.
.

.:
.

CIVIL PENALTY PROCEEDING
Docket No. KENT 90-6
A.C. No. 15-11529-03524
H-8 Mine

DECISION
Appearances:

Before:

Thomas A. Grooms, Esq., Office of the Solicitor,
U.S. Department of Labor, Nashville, Tennessee,
for Petitioner~
•
Charles J. Baird, Esq., Baird and Baird, P.S.C.,
Pikeville, Kentucky for Respondent.

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to Section 105Cd) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seq., the "Act," charging Inferno Coals Incorporated
(Inferno) with 20 violations of mandatory standards and
proposing civil penalties of $2,829 for the a'ileged violations.
The general issue before me is whether Inferno violated the
cited regulatory standards and, if so, the appropriate civil
penalty to be assessed in accordance with Section llOCi) of the
Act.

-

Respondent failed to appear at the scheduled hearings but
filed pleadings captioned "M9tion to Withdraw Notice of
Contest" with respect to 19 of the 20 citations at bar. At the
hearings Petitioner presented testimony and documentation
adequate to support its proposed penalties for these 19
violations within the framework set forth in Section llOCi) of
the Act. Respondent's "Motion to Withdraw Notice of Contest"
is deemed to be a motion for approval of settlement and in
light of the evidence presented it is granted. An order will
therefore be incorporated as part of this decision directing
that Respondent pay the penalties proposed for the subject 19
violations.

1675

Respondent also filed a "Joint Stipulation of Facts"
regarding the remaining citation, No. 2784600. As amended at
hearing the proposed stipulations were accepted by the
Secretary. At hearings the Secretary also presented
testimentary and documentary evidence in support of her claim
that a factual basis existed to sustain the allegations in
Citation No. 2784600 and that a violation did in fact occur.
See Co-op Mining Co., 2 FMSHRC 3475 (1980). The Secretary also
produced evidence in support of her proposed penalty of $600
for that violation.
According to supervisory MSHA Inspector John South,
Inferno was previously cited on January 5, 1989, for a
violation of the same mandatory standard cited at bar Ci.e.
30 C.F.R. § 48.10) after Inferno had failed to pay 14 miners
for the required safety training (See Exhibit G-22).
During
his investigation of events leading to that citation Inspector
South was told by one of Inferno's owners, James Salyers, that
in his 11 years in the coal mining business he had never paid
any of his employees for the MSHA required safety training.
However, according to Inspector South, Mine Superintendent
Jackie Bartley told him that he (Bartley) had been aware of the
necessity to pay miners for such safety training and had
previously told Salyers of this requirement.
According to Inspector South, Inferno abated the January 5
citation by compensating the 14 miners for their lost pay, but
thereafter withheld from the "bonus pay" of 9 of these 14
miners plus 5 additional miners who had attended annual
refresher training on subsequent dates, amounts equal to the
compensation they were paid for the training. Accordingly on
July 28, 1989, Citation No. 2784600 was issued by Inspector
South. That Citation reads as follows:
Harry Mullins, Michael Fleming, Ronald Ratliff,
Ronald England, James E. Charles, Russell Ratliff,
John H. Allen, Donald Saunders, and Bennett Justice
attended Annual Ref re sher ·rraining on December 3,
1988, and received compensation for the subject
training hours.
Larry Coleman, Frank J. Stanley, Alfred Adkins and
Randy Hill attended Annual Refresher Training on
December 17, 1988, and received compensation for the
subject training hours.
James Billiter attended Annual Refresher training on
December 31, 1988, and received compensation for the
subject training hours.

1676

The compensation received for the subject training
was witheld in the same amount from the above listed
employee's bonus pay received by the subject
employees on June 30, 1989.
The cited standard, 30 C.F.R.
follows:

§

48.10, provides as

Ca) training shall be conducted during normal working
hours; miners attending such training shall receive
the rate of pay as provided in Section 48.2Cd)
(definition of normal working hours of this sub-part A).
Cb) if such training shall be given at a location
other than the normal place of work, miners shall be
compensated for the additional cost, such as mileage,
meals and lodging, they may incur in attending such
traiping sessions.
Inferno apparently argues that because the issuance of a
"bonus" to miners was voluntary on its part and above .and
beyond any required payment to its employees, it had the right
to withhold payment of this i•bonus" to those miners taking the
MSHA mandated annual refresher training in the precise amount
of the compensation paid to the miners attending such training.
However, since it is not disputed that the subject miners would
have received the full "bonus" but for their attendance at the
legally mandated annual refresher training it is clear that
Inferno violated the standard at 30 C.F.R. § 48.10 as alleged.
Since Inferno management clearly knew, following its
initial abatement of the January 5, 1989, citation, of the
regulatory requirement to compensate miners for their required
safety training, its subsequent attempt to recoup that
compensation from those miners through a transparent
acc.ounting subterruge, Inf er no is chargeable with an
intentional violation--or, within the framework of the criteria
under section llOCi), the highest negligence. In addition,
since Inferno continued to refuse to compensate the subject
miners on the basis of this transparent subterfuge unti+ a
section 104Cb) "failure to abate" withdrawal order was issued,
it clearly did not abate the violation in good faith. The
violation was also serious in that the repeated failure to
compensate miners for their required safety training would
clearly tend to discourage participation in that important
training.
Under the circumstances, and considering all the criteria
under Section llO(i) of the Act, I find that a civil penalty of

1677

$600 is indeed appropriate for the viol~tion charged in
Citation No. 2784600.
ORDER

.

{

Inferno Coals Incorporated is hereby directed to pay the
.•.
proposed civil penalties of $2,829 in full within 30 days
the date of thi~ decision.
''\
r,

l

I

I -.-I·

/ ·/

,,

\v J,,/'- _,

Melic~

.\I
I

1 \

I \

Ga.jy
., Administrative Law Judge
1-.

Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor, U.S.
Depar~ment of Labor, 2002 Richard Jones Road, Suite B-201,
Nashville, TN 37215 (Certified Mail)
Charles J. Baird, Esq., Baird and Baird, P.s.c., Inferno Coal
Inc., 415 Second Street, P.O. Box 351, Pikeville, KY 41501
(Certified Mail)
nb

1678

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

AUG
JOHN ERAZMUS, JR.,
Complainant
v.
CONSOLIDATION COAL COMPANY,
Respondent
JOHN WEIGAND, JR.,
Complainant
v.
CONSOLIDATION COAL COMPANY,
Respondent

91990

.
.
.
.
..

.
.
.

DISCRIMINATION PROCEEDING
Docket No. WEVA 90-10 8-D
MORG-CD 90-04
Ireland Mine
DISCRIMINATION PROCEEDING
Docket No. WEVA 90-109-D
MORG-CD 90-05

.

Ireland Mine

ORDER LIFTING STAYS AND DISMISSING PROCEEDINGS
Before:

Judge Melick

Complainants request approval to withdraw their
complaints in the captioned cases for the reason that an
arbitrator has awarded them appropriate remedies for the
discrimination alleged in these cases. Under the
circumstances herein, the request is granted.
29 C.F.R § 2700.11. The Stay Orders previously 1 issued are
accordingly now lifted and these cases are ther\'f ore
dismissed.

u\

J

i

\

\.,'II
,

, ~ _,. "v

-\

.

\ I

I

I ,

I I / i ,I\

G y Melick ·- ,
\i . ;
Administrrutive Law J~dg~
Distribution:

(~.I

{.

v ·L

1. , \,,.
/

''

i~

i

Walter J. Scheller, III, Esq., Conso1idation Cdal Company,
1800 Washington Road, Pittsburgh, PA 1 15241 (Certified Mail)
Mr. Thomas M. Myers, District Six, UMWA, 56000 Dilles Bottom,
Shadyside, OH 43947
(Certified Mail)
Mr. David Hudson, Superintendent, Consolidation Coal Company,
P.O. Box 587, Moundsville, WV 26041 (Certified Mail)
nt

1679

'-.. · -

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

AUG 1O1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
· · Pe ti ti oner

v.
DRAVO BASIC MATERIALS CO.,
INCORPORATED,
Respondent
and
R & S MATERIALS, INC.,
Respondent

.:
.
.:
.:
.
.•·

DISCRIMINATION PROCEEDING
Docket No. SE 90-86-DM
MD 90-03
Selma Mine

.
DECISION

Appearances:

William Lawson, Esq., U.S. Department of Labor
Office of the Solicitor, Birmingham, AL, for the
Secretary;
R. Henry Moore, Esq., Buchanan Ingersoll, P.C.,
Pittsburgh, PA, for Dravo Basic Materials, Co.,
Inc.,
Harold Bowron, Jr., Esq., Balch & Bingham,
Birmingham, AL, for R & S Materials, Inc.

Before:

Judge Fauver

The Secretary of Labor brought this proceeding on behalf of
Alonzo Walker under § 105(c) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 801 et seq., contending that he
was discharged in violation of that section.
The original complaint was against Dravo Basic Materials
co., Inc., as was an application for temporary reinstatement,
which was granted pending a hearing and decision on the merits of
the complaint.
The case was set for hearing on the merits on May 22, 1990.
On May 14, 1990, the Secretary moved to amend the complaint
to add R & S Materials, Inc., as a respondent and to assess a
civil penalty for a violation of § 105Cc> of the Act.

1680

On May 21, 1990, Dravo filed an answer to the amended
complaint in the event the motion to amend were granted, and
R & S filed a motion to strike the motion to amend the complaint,
also with an answer to the amended complaint in the· event the
motion to amend were granted.
On the same date, the judge held a telephone conference with
the attorneys for the Secretary, for Dravo, and for R & s. The
judge advised the parties that he would hear oral arguments the
following morning on the Secretary's motion to amend the
complaint and that, if the motion were granted, R & s would be
entitled to a continuance to prepare for a hearing on the merits.
R & S stated that it was desirous of proceeding with the hearing
on the merits, scheduled for the following day, if its motion to
strike the motion to amend the complaint were denied.
On May 22, 1990, after oral arguments, the motion to amend
the complaint was granted. The amended complaint and
Respondents' answers thereto were deemed to be filed on the dates
they were previously received by the judge's office. In light of
R & S's desire to proceed to hearing on the merits that day, and
its waiver of procedural and due process objections, a hearing on
the merits was held on May 22 and 23, 1990.
This decision is limited to the issue whether Walker was
discharged in violation of § 105Cc) of the Act, reserving for a
supplemental decision issues of successor in interest, damages, a
civil penalty and other relief.
Having considered the hearing evidence and the record as a
whole, I find that a preponderance of the substantial, reliable,
and probative evidence establishes the following Finding of Fact
and further findings in the Discussion below:
FINDINGS OF FACT
1. R & ,S Materials , Inc • , aper a ted an open pit sand and
gravel mine, known as the Selma Mine, until January 12, 1990,
when the mine was acquired from R & S by Dravo Basic Materials
Co., Inc., l/

l/ Further findings of fact concerning the issue of Dravo's
responsibility as a successor in interest are deferred pending
further proceedings.

1681

2. At the beginning of the day on January 10, 1990, Alonzo
Walker reported to work at the Selma Mine where he was employed
as a dragline operator. To get to the dragline, Walker rode a
motor grader driven by Jimmy Callen.
3. During the trip to the dragline, Callen asked Walker if
he ever had problems of dizziness or shortness of breath while
operating the backhoe, indicating that he had such ailments the
day before. Walker replied that he did not have such problems
with the backhoe but that he had not operated the machine for
some time, approximately four or five months.2/ Callen, the
regular motor grader operator, operated the backhoe a half shift
the day before and at that time experienced difficulty in
breathing and a burning sensation in his nose. He had not
expressed such complaints previously on the backhoe or any other
machine.
4. In the morning on January 10, Walker operated the
dragline. Callen again was temporarily assigned to operate the
backhoe, because the regular operator, Randy Hamilton, had not
arrived at the mine. Callen again experienced difficulty in
breathing and a burning sensation in his nose while operating the
backhoe. The door to the backhoe was closed, so he opened it to
get more air in the cab. This did not help.
5. During the morning, an MSHA mine inspector came to
Callen's worksite as part of a mine inspection. He briefly
looked at the backhoe, but did not inspect it for noxious fumes.
He was not aware of Callen's complaints.
6. Callen operated the backhoe until lunch time, when he
was relieved for lunch by Randy Hamilton, his supervisor. 3/
Callen told Hamilton that he was having trouble breathing and a
burning sensation in his nose. Hamilton understood Callen's
complaint to mean that his condition was a result of operating

All employees would occasionally operate other equipment, on
an as-needed basis.

~/

3/

Randy Hamilton was a working foreman who regularly operated
backhoe. In the absence of the Mine Superintendent, Hamilton
was in charge of the mine.

~he

1682

the backhoe (Tr. 248) • .!/ Hamilton replied to Callen's complaint
by saying that when the weather was hot and dusty he had similar
symptoms while operating the backhoe. Hamilton did not offer to
inspect the backhoe or have it tested for noxious fumes.
7. When Callen was relieved for lunch he went to the hopper
area (where some of the employees generally met to eat lunch) to
try to rest and to catch his breath. Walker was there and Callen
again complained to him about his physical ailments while
operating the backhoe. Walker advised Callen to go to the Mine
Superintendent, Roger Campbell, and tell him about the beliefs he
had concerning the backhoe.
8. Callen went to the office, and told Campbell that he
could hardly breathe, that he had a burning sensation in his
nose, that he needed to see a doctor, and that he believed
"something was on [wrong with] the backhoe" (Tr. 116, 186, 369:
Ex. C-9). Campbell immediately sent Callen to a hospital on
workmen's compensation.
9. When Callen did not return to the backhoe after lunch,
Hamilton went to the off ice and asked Roger Campbell what had
happened to him. Campbell told Hamilton that Callen had been
taken to the hospital. Both Campbell and Hamilton knew that
Callen was taken to the hospital because he had breathing
diffulties and a burning nose sensation while operating the
backhoe.
10. After his own lunch period, Hamilton noticed the
dragline was not operating and decided to assign Alonzo Walker to
operate the backhoe the rest of the shift. Walker was in the
hopper area where he, Robert Baldwin and Leon Kent had just eaten
lunch.

4/ At the previous hearing on the application for temporary
reinstatement, Hamilton had testified that Callen asked him
whether he had shortness of breath or a burning sensation in the
nose while operating the backhoe. Transcript in Docket No. SE
90-63-DM, page 59. At the hearing on the merits, he first
testified that Callen did not associate his symptoms with
operating the backhoe (Tr. 246), but when confronted with his
earlier testimony, Hamilton acknowledged that he understood
Callen's complaints to be directed at the backhoe. "I figured it
was about the backhoe since he was on it and everything." Tr.
248.

1683

11. Hamilton went to the hopper area and told Walker that he
wanted him to operate the backhoe. Walker asked him where Jimmy
Callen was. Hamilton said he had gone to the hospital. Walker
replied that he "would rather have somebody check it out because
Jimmy was complaining about it" (Tr. 29-30). Hamilton replied
that there was "nothing wrong with it," and Walker replied "I'd
rather have a mechanic to check it out" (Tr. 30). Hamilton
started walking toward his truck, and told Walker to either
operate the backhoe or go to the house <meaning he would be
fired). Walker then asked Hamilton where Superintendent Campbell
was. Hamilton did not respond. Walker caught a ride on a dump
truck down to the dragline, to operate that machine • .
12. Hamilton left the hopper area, looking for Campbell.
He found him and told him Walker refused to run the backhoe.
Campbell, with Hamilton, proceeded to the dragline to talk to
Walker. At the dragline Campbell asked Walker why he did not
operate the backhoe and Walker said there was a problem with the
backhoe, that "Jimmy Callen got sick on the backhoe" (Tr. 32) and
he wanted to have it checked out. Campbell said there was
nothing wrong with it and to either run it or look for another
job. Walker did not run the backhoe, and understood he was fired.
He went to the off ice, where Campbell gave him a termination slip
that stated the following reason for his discharge: "Asked to run
backhoe and refused." Ex. C-2. When Walker read the form he
said there were two other men who could run the backhoe and asked
Cambpell, "if there ain't nothing wrong with it [the backhoe],
how come they couldn't run it?" Tr. 35. Campbell then
instructed his secretary to type the following additional
language on the slip: "Dragline operator. Alonzo Walker stated
that there were four other men capable of running backhoe." Tr.
35; Ex. C-2. Walker, however, had not stated four other men were
capable of running the backhoe. Also, he had asked Campbell to
put his safety complaint about the backhoe on the personnel form
but Campbell did not do so.
13. R & S Materials, Inc.'s Safety Manual, handed to each
employee, stated in Rule No. 3(b):
It shall be the duty of every employee to
promptly report to his supervisor any
hazardous condition or practice that
may cause injury or property damage.
14. Callen stayed in the hospital about a week. His
medical problem was apparently a lung disorder, which was
treated. He returned to work and was operating the backhoe and
other equipment without difficulty at the time of the hearing.

1684

15. At the request of Mine Superintendent Campbell, MSHA
tested the backhoe for noxious fumes on January 12. The tests
were negative.
DISCUSSION WITH FURTHER FINDINGS
The central issue is whether Walker was unlawfully
discharged for engaging in a protected refusal to work under
§ 105(c)(l) of the Act.~/
A miner may refuse to work under that section if he has a
good faith, reasonable belief that a hazardous condition exists.
Northern Coal Company, 4 FMSHRC 126, 128 (1982). The "belief
must be reasonable, and • • • miners may rely on such indications
of conditions as seemingly trustworthy reports from others and
earlier conditions in the mine." Id. at 136.
Where practical, a miner refusing work should communicate to
a representative of the operator his belief that a hazardous
condition exists. "Simple, brief communication will suffice, and
the 'communication' can involve speech, action, gesture, or tying
in with others' comments." The purpose of the rule "is promoting
safety and [the Commission] will evaluate communication issues in
a common sense, not legalize, manner."
Id. at 133, 134.

~/

Section 105(c)(l) 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 miner, representative of miners or applicant for
employment in any ~oal 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."

1685

To determine "reasonableness" of a work refusal, the miner's
safety concern must be viewed from the miner's perceptive at the
time of the work refusal, and the miner need not objectively
prove that an actual hazard existed. Union Carbide· corp., 5
FMSHRC 993, 997-98 (1983); River Hurricane Coal Co., 5 FMSHRC
1529, 1533-34 (1983); Haro v. Magna Cooper Co., 4 FMSHRC 1935,
1944 (1982).
"Good faith belief simply means honest belief that
a hazard exists." United Castle Coal Company, 3 FMSHRC 803, 810
(1981).
Generally, in order to establish a prima facie case of
discrimination under § 105(c) a complaining miner bears the
burden of proving that (1) he or she engaged in protected
activity and (2) the adverse action complained of was motivated
in any part by that activity. 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); Hecla-Day
Mines Corporation, 6 FMSHRC 1842 (1984); Phelps Dodge Corp., 3
FMSHRC 2508, 2510-2511 (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 and would have taken the adverse
action on those grounds alone. The operator bears the burden of
proof with regard to the affirmative defense. Haro v. Magma
Copper Company, supra. The ultimate burden of persuasion does
not shift from the complainant. United Castle Coal Company,
supra.
See also Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983);
and NLRB v. Transportation Management Corporation, 462 U.S. 393
(1983) (where the Supreme Court approved the NLRB's virtually
identical analysis for discrimination cases arising under the
National Labor Rela~ions Act).
Applying these principles, I find that Walker had a good
faith, reasonable belief that operating the backhoe presented a
hazard and he communicated that belief to his supervisors by his
refusal to operate the machine until his employer had it checked
out for hazardous conditions.
The supervisors and Walker were all aware that Callen had
complained of dizziness, breathing problems, and a burning
sensation in his nose while operating the backhoe, and that he
was sent to the hospital because of this condition.
It was reasonable for Walker to believe that the backhoe
presented a hazard and may have been leaking fumes or had other

1686

defects that caused Callen's condition. Walker was protected by
§ 105(c) of the Act in requesting that the machine be checked for
hazards before he would operate it. Walker was not a mechanic and
did not have the training, skills, or equipment to test the
machine for noxious fumes, emissions, or other hazards that may
have caused Callen's symptoms. He was not trained or qualified
to judge whether Callen's condition was due to defects of the
backhoe or to independent health causes such as a heart attack or
a lung disease. He was therefore not obligated to examine the
backhoe to determine whether it was safe. Nor was he required to
operate it and "wait and see" if he would become sick and require
hospitalization. It was not reasonable for his supervisors to
order him to run the machine without adequate tests to ensure his
safety.
The hospital physician who examined Callen suggested that
the equipment and work area be checked for possible noxious fumes
or chemicals that could cause Callen's condition. When the Mine
Superintendent checked the equipment and work area, he saw
nothing wrong but still could not determine whether or not
odorless noxious fumes were escaping from the equipment. He
therefore requested MSHA to bring in an expert with the proper
technical skill and equipment to test for noxious fumes.
The fact that such tests proved negative does not alter the
reasonableness and good faith of Walker's work refusal. As
stated, a good faith belief "simply means honest belief that a
hazard exists." United Castle Coal Co., supra, 3 FMSHRc· 803, 810
(1981).
It does not require objective proof that a hazard
actually existed.
Hamilton testified that Walker did not ask him to check out
the backhoe, but merely stated he "runs the dragline, not the
backhoe" (Tr. 24). I do not find this testimony to be credible.
Other witnesses corroborated Walker's testimony that he asked
Hamilton to check out the backhoe. On balance, I credit Walker's
testimony as to what he stated to Hamilton. Respondent contends
that noise at the hopper may have drowned out Walker's responses
to Hamilton, and that Walke~ had a duty to make any safety
complaint clearly heard and understood by his supervisor.
I find
the noise factor to be a non-issue in this case. Hamilton said
he had no difficulty hearing the words of Walker. Walker had no
difficulty hearing Hamilton. The difference between them is
their testimony of what was said, and I find Walker's testimony
to be more credible and convincing than Hamilton's.
Campbell testified that when Callen complained to him about
difficulty in breathing and a burning sensation in his nose
Campbell did not know that Callen was complaining about the
backhoe. I do not find this testimony to be credible.

1687

Campbell's secretary, Annette York, testified that she was
present when Callen came· in and complained to Campbell about the
ailments he was suffering from operating the backhoe. Tr. 368,
369. Campbell's testimony is also refuted by MSHA Inspector
Kelly, who testified that on January 12 he interviewed Campbell
and Campbell stated that Callen had told him he had trouble
breathing and a burning sensation in his nose while operating the
backhoe and had.tried operating the backhoe with the door open
but that did not help. Tr. 186, 187; Ex. C-9, p.3. Finally,
Campbell's testimony is refuted by Callen himself, who testified
that he told Campbell that he believed there was "something on
[wrong with] the backhoe" (Tr. 116).
Campbell also testified that Walker flatly refused to
operate the backhoe, with no explanation. Tr. 459-461. I do not
find this testimony to be credible and reasonable. When Campbell
approached Walker at the dragline, this was Walker's last chance
to plead his case for refusing to operate the backhoe. He had
asked Hamilton where Campbell was, indicating his desire to
discuss the situtation with him. I credit Walker's account of
his statements to Campbell, both at the dragline and in Cambell's
office.
On balance, I find that a preponderance of the reliable
evidence proves that Walker's work refusal was protected by §
105(c) of the Act. His discharge was therefore a violation of
that section.
CONCLUSIONS OF LAW
1.
R

The judge has jurisdiction in this proceeding.

2. The discharge of Alonzo Walker on January 10, 1990, by
& S Materials, Inc., violated§ 105(c)(l) of the Act.
ORDER

1. This decision shall not become a final disposition of
this matter until a supplemental decision and final order are
issued.
2. The parties shall have until September 5, 1990, to
submit proposed findings and conclusions, with supporting
arguments, concerning:
Ca)

Issues of liability of Respondent Dravo Basic
Materials, Co., Inc., as a successor in interest.

Cb)

Civil penalty or penalties to be assessed under
§ llO(i) of the Act.

1688

Cc)

Relief to be accorded to Alonzo Walker.

Cd)

Any other matters the parties believe should be
addressed to reach a final disposition of this
proceeding.

3. If necessary, a supplemental evidentiary hearing will be
held on factual issues raised in the parties' proposals on
damages.
4. The previous order of temporary reinstatement shall
remain in force pending a final decision.

u);JL
~IMA.vt/"twilliam Fauver
Administrative Law Judge
Distribution:
William Lawson, Esq., U.S. Department of Labo.r, Office of the
Solicitor, Suiite 201, 2015 2nd Avenue, North, Birmingham, AL
35203 (Certified Mail)
R. Henry Moore, Esq., Buchanan Ingersoll, P.C., 600 Grant Street,
58th Floor, Pittsburgh, PA 15219 (Certified Mail>
Haro.iLd. Bowron, Jr., Esq., Balch & Bingham, P.O. Box 306,
Birmii.n·gham, AL 35201 CCertif ied Mail>
i'Z

1689

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

AUG 161990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 90-48
A.C. No. 46-01968-03502

v.
LANG BROTHERS, INC.,
Respondent

.
:

Docket No. WEVA 90-58
A.C. No. 46-01968-03503
Blacksville No. 2 Mine

DECISION
Appearances:

Before:

Wanda M. Johnson, Esq., Office of the Solicitor,
U.S. Department of Labor, for the Secretary of
Labor (Secretary); Gregory A. Morgan, Esq.,
Young, Morgan and Cann, Clarksburg, West Virginia,
for Lang Brothers, Inc. (Lang Brothers).

Judge Broderick

STATEMENT OF THE CASE
In March and December 1989, Inspector George H. Phillips of
the Mine Safety and Health Administration reviewed the registers
kept by Consolidation Coal Company (Consol) of the contractors
working at Consol's Blacksville No. 2 Mine. Lang Brothers was
included on the register, having been engaged in cleaning out and
plugging gas wells which penetrated the coal seam within the
subject mine. The-inspector conducted spot inspections of Lang
Brothers operation including its drilling equipment and issued a
number of citations for violations of mandatory safety standards
promulgated under the Mine Act. The Secretary seeks civil
penalties for these alleged violations. on motion of the
Secretary, the two dockets were consolidated for the purposes of
hearing and decision. Pursuant to Notice, the consolidated case
was called for hearing in Morgantown, West Virginia, on
May 30, 1989. George H. Phillips and Lloyd Alvarez testified on
behalf of the Secretary; Glenn Andrew Lang and Calvin Lofton
testified on behalf of Lang Brothers. Both parties have filed
post-hearing briefs. I have considered the entire record and the
contentions of the parties and make the following decision.

1690

FINDINGS OF.FACT

1. Lang Brothers is a heavy construction company, a major
part of whose business involves drilling new gas wells and
repairing existing wells for gas companies· (approximately 50
percent of its work), and cleaning out and plugging abandoned
wells for coal mine operators (the other 50 percent).
2. Lang Brothers has had "blanket contracts" with
Consolidation coal Company (Consol), each covering a calendar
year wherein Lang Brothers agrees to clean and plug gas wells for
Consol pursuant to "purchase orders" for each well to be plugged.
Such a blanket contract existed for the calendar year 1989. Lang
has plugged wells at different Consol mines since about 1980. It
has also done the same work for about five other coal operators.
3. Consol owns and operates an underground coal mine whose
portal is in Monongalia county, West Virginia, and which extends
underground in the states of West Virginia and Pennsylvania,
called the Blacksville No. 2 Mine.
4. Effective August 19, 1980, the Mine Safety and Health
Administration (MSHA) issued an order granting Consol's petition
for modification of the requirements of 30 C.F.R. § 75.1700
requiring it to establish and maintain barriers around oil and
gas wells in the Blacksville No •. 2 Mine. In lieu of establishing
and maintaining such barriers, Consol was permitted to clean the
wellbore and to seal the coalbed from the surrounding strata at
the affected wells by plugging the wells from below the coalbed
to the surface.
5. In March of 1989, pursuant to a purchase order from
Consol and instructions from Consol's engineer, Lang Brothers
reopened, cleaned out and plugged wel.l No. B2-233 located in
Pennsylvania~
Consol had received a permit from the state of
Pennsylvania 1 for this work. Lang then brought its equipment to
the site, including a drill rig, a water pump and water tanks,
and a bulldozer.
6. With this equipment, Lang cleaned out the existing well
and plugged it with cement. The well penetrates and extends
below the coal seam. Well No. B2-233 extended more than 1370
feet below the surface. The coal seam was from 674 feet to 682
feet below the surface.
There is some confusion in the record as to whether the
well was located in Pennsylvania or West Virginia,
since
Respondent's Exhibit 4 is an affidavit of plugging and filling a
gas well on a West Virginia form. The date of this form however,
is March 1990. The record seems to show that both wells involved
in this case opened on Pennsylvania land.

1691

7. The land on which the equipment was positioned to clean
and plug the wells was apparently not owned by Consol. Consol
and Lang had to obtain the lanqowners' permission to enter and
perform the necessary work. The land of course was above the
coal mine being operated by Consol.
8. On March 20, 1989, Federal mine inspector George
Phillips went to.the Blacksville No. 2 Mine office and asked to
see the contractor's register. Lang Brothers name appeared on
the register, and Inspector Phillips proceeded to the area in
which they were engaged in cleaning and plugging gas well No. B2233. He issued a citation charging a violation of 30 C.F.R. §
77.1710(i) because the bulldozer was provided with rollover
protection but did not have seat belts.
9. In December 1989, .pursuant to another purchase order
from Consol and instructions from Consol's engineer, Lang
reopened, cleaned out and plugged well No. B2-278. Consol had
applied for and received a permit from the state of Pennsylvania
.for this work. Thereafter Lang brought its equipment to the site
and commenced the operation.
10.
surface.
surface.

Well No. B2-278 extended more than 3000 feet below the
The coal seam was from 802 feet to 808 feet below the

11. On December 4 and December 12, 1989, Inspector Phillips
in the course of inspections of Lang's operation at well B2-278,
issued five citations, two alleging violations of 30 C.F.R. §
77.404(a) because of a defective cylinder pressure gauge and
inoperative rear lights on a bulldozer, one alleging a violation
of 30 C.F.R. § 77.503 because of damaged insulation on a welder
cable, one alleging a violation of 30 C.F.R. § 77.1110 because of
a defective fire extinguisher at the oil storage station, and one
alleging a violation of 30 c .. F.R. § 77.410 because of a defective
backup alarm on a bulldozer.
12. On May 1, 1989, coal mine inspector Lloyd Alvarez
inspected the plugging operations at well B2-233, and on
January 16, 1990, he inspected the plugging operations at well
No. B2-278.
13. At the time well B2-278 was cleaned and plugged, Consol
was cutting through the coal seam about 300 feet from the well.
The record does not indicate how far the coal mining operation
was from well B2-233 at the time it was cleaned and plugged.
14. Lang concedes that the plugging operation itself is
subject to MSHA inspection. Lang has an MSHA I.D. number as an
independent contractor.

1692

15. Lang concedes that if it is subject to the Mine Act,
the conditions and practices cited in the citations involved here
were present or occurred, and constituted violations of the Mine
Act as alleged.
ISSUE

1. Whether Lang's operations in cleaning and plugging gas
wells under contract with an underground coal mine operator are
subject to the provisions of the Mine Act?
STATUTORY PROVISIONS

Section 3(d) of the Act provides:
(d) 'operator' means any owner, lessee, or other person
who operates, controls, or supervises a coal or other
mine or any independent contractor performing services
or construction at such mine.
Section 3(h) of the Act provides:
(h) (1) 'coal or other mine• means (A) an area of
land.from which minerals are extracted in nonliquid
form or, if in liquid form, are extracted·with workers
underground, (B) private ways and roads appurtenant to
such area, and (C) lands, excavations, underground
passageways, shafts, slopes, tunnels and workings,
structures, facilities, equipment, machines, tools, or
other property including impoundments, retention dams,
and tailings ponds, on the surface or underground, used
in, or to be used in, or resulting from, the work of
extracting such minerals from their natural deposits in
nonliquid form, or if in liquid form, with workers
underground, or used in, or to be used in, the milling
of such minerals, or the work of preparing coal or
other minerals, and includes custom coal preparation
facilities. In making a determination of what
constitutes mineral milling for purposes of this Act,
and Secretary shall give due consideration to the
convenience of administration resulting from the
delegation to one Assistant Secretary of all authority
with respect to the health and safety of miners
employed at one physical establishment;
(2) For purposes of titles II, III, and IV, 'coal
mine' means an area of land and all structures,
facilities, machinery, tools, equipment, shafts,
slopes, tunnels, excavations, and other property, real
or personal, placed upon, under, or above the surface
of such land by any person, used in, or to be used in,
resulting from, the work of extracting in such area
bituminous coal, lignite, or anthracite from its

or

1693

natural deposits in the earth by any means or method,
and the work of preparing the coal so extracted, and
includes custom coal preparation facilities;
Section 4 of the Act provides:
SEC. 4. Each coal other mine, the produce of which
enter commerce, or the operations or products of which
affect commerce, and each operator of such mine, and
every miner in such mine shall be subject to the
provisions of this Act.
CONCLUSIONS OF LAW

In the Otis Elevator cases (11 FMSHRC 1896, "OTIS I"; 11
FMSHRC 1918, "OTIS II" (1989), appeals docketed Nos. 89-1712 and
89-1713 (D.C. Cir. Nov. 20, (1989)) the· commission held that Otis
Elevator Company which examined and maintained elevator equipment
at an underground C!oal mine under contract with the coal mine
operator, was an independent contractor performing sei::vices at a
mine and thus was subject to the Mine Act.
The Commission found Otis subject to the Mine Act because
(1) its activities were an integral and important part of the
coal extraction process; (2) Otis' employees worked at the mine
site and were exposed to many of the same hazards as the
employees of the mine operator; (3) Otis had a continuous
presence at the mine site.
The activities of Lang Brothers, in cleaning and plugging
the gas wells for Consol, constitute an integral and important
part of Consol's extraction process. Consol was obliged to clean
and plug the wells in accordance with the modification petition
in order to mine through the area where the well penetrated the
coal seam. If Consol did the work itself, there could be no
doubt that the work was part of the mining process. There should
be no different cgnclusion because it. contracted out the work.
Lang admits that the plugging operation itself is subject to MSHA
inspection. But the cleaning and plugging constitute a single
process, and both are necessary to Consol's mining activity.
Lang's operations were not at the mine site per se, but were
performed.on land above the mine and involved an operation which
penetrated the coal seam.
The two projects involved in these proceedings were of
relatively short duration. Lang did not have a "continuing
presence" at the subject mine, but approximately 50 percent of
its work involved cleaning and plugging gas wells for coal mine
operators. It could therefore·be said therefore to have a
continuing presence in coal mine related work.

1694

Section 3(d) of the Act defines operator to inc:;:lude "any
independent contractor performing services or construction at
such mine." But as the Commission stated in OTIS I, not all
independent contractors are op~rators. "[T]here may be a point,
at least, at which an independent contractor's contact with a
mine is so infrequent or de minimis that it would be difficult to
conclude that services were being performed." National Indus.
Sand Ass'n v. Marshall, 601 F.2d 689, 701 (3rd Cir. 1979).
In the case of Old Dominion Power Co. v. Donovan, 772 F.2d
92 (4th Cir. 1985), relied upon by Lang, the Court held that a
public utility which monitored an electric substation at a mine
site, was not an operator under the Act, since it did not have a
continuing presence at the mine. The relationship of Lang's
activities involved here to the coal mining process is much more
direct than the power company's activities in Old Dominion.
About 50 percent of Lang's work is for coal mines as contrasted
to the extremely small percentage of the power company's work.
Although Lang's employees were not in the mine itself, they
operated heavy equipment which penetrated the mine atmosphere and
directly and substantially affected the extraction process. Most
importantly, their work was directly related to the safety of the
miners, since improper plugging of a gas well could cause methane
leaking into the mine as the extraction of the coal progressed
and could result in an underground ignition or explosion. I
conclude that Lang's contact with the mine was neither
"infrequent or de minimis".
Therefore, I conclude that Lang, by virtue of the services
it provided Consol and the importance of those services to
Consol's coal mining operation, falls within the definition of
operator in the Mine Act and is, therefore, subject to its
jurisdiction.
ORDER
Based on the-above findings of fact and conclusions of law,
IT IS ORDERED:
1. Citations 3100560 issued March 3, 1989, and 3311069,
3311070, 3311071, issued December 4, 1989, and 3311624 and
3311625 issued December 12, 1989, are AFFIRMED;
2. Respondent shall within 30 days of the date of this
decision pay the following civil penalties for the violations
found to have occurred.
CITATION

PENALTY

3100560
3311069
3311070

$ 39.00
39.00
39.00

1695

39.00
39.00
39.00
$234.00

3311071
3311624
3311625

•

J

, )

I

!

t.u~ k/:J&vci11i-r!_,Jf_
James A. Broderick
Administrative Law Judge

Distribution:
Wanda M. Johnson, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Boulevard, Room 516, Arlington, VA 22203
(Certified Mail)
Gregory A. Morgan, Esq., Young, Morgan & Cann, Suite One,
Schroath Building, Clarksburg, WV 26301 (Certified Mail)
slk

1696

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

AUG 211990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
HARRY W. MULLEN,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 90-57-DM
MSHA Case No. MD 89-65

.. Sand and Gravel Plant

ERNST MATERIALS SERVICE, •
Respondent
ORDER OF DISMISSAL
Before:

Judge Koutras
statement of the Case

On June 12, 1990, I issued an order granting the Secretary's
motion for a continuance of the hearing scheduled for June 26,
1990, in Cincinnati, Ohio, and for a stay of the proceeding in
order to afford the Secretary time to conduct an additional
investigation. The Secretary has now filed a Motion to Dismiss
this matter on the ground that further investigation revealed
that the respondent corporation is no longer in business and the
owner of the former respondent corporation died on June 22, 1990.
The Secretary states that an analysis of successor liability was
conducted under the standard enunciated in Munsey v. Smitty Baker
Coal Company, et al., 2 FMSHRC 3463 and its progeny, and that the
results of the analysis show that no successor corporation exists
that could reasonably be impleaded by the Secretary.
ORDER
In view of the foregoing circumstances, the previously
issued stay order IS LIFTED, and for good cause shown, the
Secretary's motion IS GRANTED, and this matter IS DISMISSED.

~A.1f:u~~
Administrative Law Judge

1697

Distribution:
Patrick M. Zohn, Esq., Office of the Solicitor, U.S. Department
of Labor, 881 Federal Office Building, 1240 East Ninth Street,
Cleveland, OH 44199 (Certified Mail)
Brett L. Thurman, Esq., Coolidge, Wall, Womsley & Lombard,
600 IBM Building, 33 West First Street, Dayton, OH 45402
(Certified Mail)
/fb

1698

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

AUG 2 21990

.
.
..
..
.
.
.

LOCAL UNION 2176, DISTRICT 22
UNITED MINE WORKERS OF
AMERICA ( UMWA) ,
Complainant
v.
EMERY MINING CORPORATION,
Respondent

COMPENSATION PROCEEDING
Docket No. WEST 85-72-C
Wilberg Mine

ORDER OF DISMISSAL
Before:

John J. Morris

The parties have reached an amicable settlement in the above
case.
Accordingly, the following order is appropriate:
1.

The settlement agreement is approved.

2. The order of August 28, 1987, staying the hearing herein
is dissolved.
3. The hearing scheduled for October 10,
Utah is cancelled.
4.

~990,

in Price,

The case is dismissed.

Law Judge

Distribution:
Mary Lu Jordan, Esq., Michael Dinnerstein, Esq., United Mine
Workers of America, 900 15th Street, N.W., Washington, D.C. 20005
(Certified Mail)
Timothy Biddle, Esq., John T. Scott III, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505
CCertif ied Mail)
/ot

1699

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

AUG 2 2 \990

.
..
.
.:
.

LOCAL UNION 1769, DISTRICT 22
UNITED MINE WORKERS OF
AMERICA CUMWA) ,
Complainant
v.
EMERY MINING CORPORATION,
Respondent

COMPENSATION PROCEEDING
'Docket No. WEST 85-74-C
Wilberg Mine

:
:

ORDER OF DISMISSAL
Before:

Judge Morris

The parties have reached an amicable settlement in the above
case.
Accordingly, the following order is appropriate:
1.

The settlement agreement is approved.

2. The order of August 28, 1987, staying the hearing herein
is dissolved.
3. The hearing scheduled for October 10, 1990, in Price,
Utah is cancelled.
4.

The case is dismissed.
r

.,._..._.~~
rris
rative Law Judge

Distribution:
Mary Lu Jordan, Esq., Michael Dinnerstein, Esq., United Mine
Workers of America, 900 15th Street, N.W., Washington, D.C. 20005
CCertif ied Mail)
Timothy Biddle, Esq., John T. Scott III, Esq., Crowell & Moring,
1001 Pennsylvania Avenue, N.W., Washington, D.C. 20004-2505
CCertif ied Mail)
/ot

1700

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

AUG 2 4 1990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of, ex rel,
WILLARD GENNOY,
Complainant

v.
CONSOLIDATION COAL COMPANY,
Respondent

...
.
..
.
.
.

DISCRIMINATION PROCEEDING
Docket No. WEVA 90-77-D
MORG CD 90-01
Arkwright No. 1 Mine

DECISION APPROVING SETTLEMENT

Before:

Judge Broderick

On August 17, 1990, the Secretary filed a motion to approve
settlement in the above proceeding. Pursuant to the settlement
agreement, I make the following findings and order:
1. Willard Gennoy was engaged in protected activity on
August 24, 1989, when he complained to a Consol management
official about allegedly unsafe conditions and equipment on
surface areas of the Arkwright No. 1 Mine.
2. Consol illegally discriminated against Willard Gennoy in
violation of section 105{c) (1) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. § 815(c) (1), by attempting to
discharge him for his protected activity.
3. Consol is ORDERED to execute and post a copy of the
Notice to Miners, attached hereto, at the Arkwright No. 1 Mine
for a period of not less than 30 days.
4. Consol is ORDERED to expunge any reference to the events
of the morning of August 24, 1989, and the attempted discharge of
Willard Gennoy from all records maintained by Consol which are
searchable by the Complainant's name, including but not limited
to, the personnel records of Consol.
5. Consol is ORDERED to pay back wages to Willard Gennoy of
$2737.61 within 30 days of the date of this order. Consol is
authori~ed to withhold from this sum such moneys as are
authorized or required by law or contract to be withheld. Consol
shall provide Willard Gennoy with a written statement itemizing
such withholding at the time of payment.

1701

6. Consol is ORDERED to pay Willa.rd Gennoy case related
expenses of $228 within 30 days of the date of this order.
7. Consol is ORDERED TO PAY the Secretary a civil penalty
of $100 within 30 days of the date of this order.

14--t iu;s _#}i--z:· ~-z,e~

1·· James
A. Broderick
Administrative Law Judge

{
Distribution:

Page H. Jackson, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Rm. 516, Arlington, VA 22203
(Certified Mail)
Walter J. Scheller, Esq., Consolidation Coal Company, Legal
Department, 1800 Washington Road, Pittsburgh, PA 15241 (Certified
Mail)
Willard E. Gennoy, Route 2, Box 306, Morgantown, WV 26505
(Certified Mail)
Steven P. McGowan, Esq., Steptoe & Johnson, P.O. Box 1588,
Charleston, WV 25326 (Certified Mail)
slk

1702

ATTACHMENT TO DECISION RE:

WEVA 90-77-D

NOTICE TO MINERS
This notice is provided to convey Consolidation Coal Company's
awareness

of

the

anti-discrimination

provisions

of

Section

105(c)(l) of the Federal Mine Safety and Health Act of 1977, 30

u.s.c.

§801 et seq. and to insure all

e~ployees

of Consolidation

Coal Company that the safety of employees is management's foremost
concern.
Consolidation Coal Company, the Secretary of Labor, and Willard
Gennoy

have

reached

a

settlement

in

an

action .. filed

by

the

Secretary on behalf of Willard Gennoy under the Federal Mine Safety
and Health Act of 1977,

30

u.s.c.

801 et seq.

in the case of

Secretary of Labor. Mine Safety and Health Administration CMSHA),
on behalf of Willard Gennoy v. Consolidation Coal Company, Docket
No. WEVA 90-77-D.

The Secretary filed that action after receivinq

a complaint from Willard Gennoy that Consol attempted to discharge
him after Willard Gennoy complained about unsafe conditions and
equipment to a management official.
Management recognizes

that the

identification of problems

affecting safety are essential and are protected under the Mine
Act. Section 105(c) (1) of the Federal Mine Safety and Health Act
of 1977 provides in its entirety:
No person shall discharge or in any manner discriminate
against or cause to be discharged or cause discrimination
against or other wise interfere with the exercise of the
statutory rights of any miner, representative of miners,
or applicant for employment in any coal or other mine
subject to this Act, because such miner. representative
of miners, or applicant for employment has filed or made
a complaint under or related to this Act, including a

1703

complaint notifying the operator 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 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 of such
miner, representative of miners, or applicant for
employment of any statutory right afforded by this Act.
(emphasis added)
Consolidation Coal Company acknowledges that this provision
of the Mine Act prohibits Consol from discriminating against a
miner because that miner reports an alleged danger or safety or
health violation to management,

the mine safety committee,

State

the

of

West

.Administration.

Virginia,

or

Mine

Safety

and

the

Health

Moreover, all miners, mine safety committeemen,

and foremen are afforded this protection against discrimination.
Consolidation Coal
prohibits Consol

Company acknowledges

from treating a

that

the Mine Act

miner who complains about an

alleged danger or safety or health violation differently than other
miners.
Consolidation Coal Company encourages miners to report any
condition or practice believed to be unsafe or a violation of a
mandatory safety or health standard to management.
nor

has

it

ever been

Consol ida ti on

practice

to

discriminate

or

Coal

otherwise

It is not now

Company' s

interfere

pol icy

with

or

miners

exercising their rights under Section 105(c) (1) of the Mine Act.
With continued cooperation between employees and management,

1704

it is our belief that we can maintain a safe and productive work
environment.
Sincerely,

James Simpson
Superintendent

1705

FEDERAL MINE SAFETY AND

HEAL~ REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES
THE FEDERAL BUILDING
ROOM 280, 1244 SPEER BOULEVARD
DENVER, CO 80204

AUG 271990
UTAH POWER AND LIGHT COMPANY,
MINING DIVISION,
Contestant

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

.
.
.:
.
.
.:

CONTEST PROCEEDING
Docket No. WEST 90-285-R
Order No. 3583332: 7/12/90
Cottonwood Mine
Mine ID 42-01944

DECISION
Appearances:

Susan E. Chetlin, Esq., Crowell & Moring,
Washington, D.C.,
for Contestant:
James B. Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent:
Robert Jennings, International Representative,
UMWA, District 22, Price, Utah,
for Intervenor.

Before:

Judge Lasher

This matter came on for expedited hearing on July 19 and 20,
1990, to review a so-called "Imminent Danger" Withdrawal Order
issued pursuant to Section 107Ca) of the Federal Mine Safety and
Health Act of 197~, 30 u.s.c. § 801 et seg., (herein Mine Act).
The Applicant (Contestant) Utah Power & Light Company, Mining
Division (herein UPL) and the Secretary of Labor, MSHA (herein
MSHA) were represented by Counsel. United Mine Workers of America (herein UMWA), the representative of miners, was represented
by its International Representative, Mr. Robert Jennings. The
parties submitted closing arguments (and precedent references) in
lieu of post-hearing briefs.
The subject Withdrawal Order, No. 3583332, was issued on
July 12, 1990, at Contestant's Cottonwood Mine by MSHA Inspector
Jerry O.D. Lemon. It had the effect of removing from service
UPL's only two EIMCO (Diesel) #915 scoops (herein 915). The
Order, consisting of four pages with diagrams, and two subsequent
one-page modifications, alleges that the dangerous condition
results from "blind spots" and the restricted field of vision
available to the 915 operator. The basis for the issuance of the

1706

order was more fully developed in the exhibits and testimony of
six witnesses presented by MSHA. UPL also called six witnesses
and introduced exhibits in support of its positions.
Issues
The withdrawal order does not contain any charge of violation of safety or health standards. MSHA's allegation that an
imminent danger existed is based on its investigation of the circumstances, including measurements of visibility problems and
"blind spots," interviews, and findings as to prior accidents involving the subject equipment (See T.19-21).
UPL contends that the enforcement action taken by MSHA was
inconsistent with the existence of an imminent danger, including
arguments that Cl) the mine was subject to some 20 prior inspections while the 915s were in use (since about 1985) without their
being cited, (2) that a prior 103(g) inspection condl?Cted by
Inspector Fred R. Marietti on May·21 and 22, 1990, did not result
in any enforcement action or in a finding of imminent danger,
(3) that Inspector Lemon delayed for approximately two hours his
issuance of the withdrawal order <citing the decision of ALJ
James Laurenson in Sharp Mountain Coal Company, et al., 3 FMSHRC
115 (January 1981), and (4) that the 915s are still permitted use
in other mines.
UPL also contends that the 915s have been in use over five
years in its Cottonwood Coal Mine without the occurrence of any
"lost-time" injuries CT. 23), that there was no emergency, and
that use of the 915s was not "likely to lead to death or serious
injury."
CT. 23-26).
The Order
Withdrawal Order No. 3583332 was issued on July 12, 1990, at
approximately 2 p.m. by Inspector Lemon.
It provides, inter
alia:
Safe operation of the EIMCO 915 diesel scoop, Serial
No. 01147 could not be done in that an inspection was
done by the writer on 7/12/90 and it was determined that
serious visability [sic] problems existed on the model 9151147 in thati the view opening from the top of the operators cab over the steering wheel was 2" to 2 3/4" wide
and with a miner--that was 5'9" tall was placed 4' outby
or from the side of the machine and moved inby and outby,
it was determined that an approximate blind spot of
23' 10" existed on opposite the operators side of the

1707

machine. This blind spot imposes a serious blind spot
to any coal miner walking on this side of the machine.
See the below diagram which is not to scale:
[Refer to diagram on Ex. G-1)
There is no termination time set as this is an order.
It is important to note that the EIMCO 915, SIN-04117
was also taken underground to the 1st South Main Intake
haulage road and the following results were found: with
a Isuzu pickup parked in the center of the entry, lined
up with this EIMC0-915--with the bucket on the EIMCO in
the half-roll position Cup)--, the operator can see only
the top of the cab of the truck. Front of the truck
right at the bucket--of the EIMCO. To see the headlights
of this truck other truck had to be moved 164 feet outby
the EIMCO on a fairly flat roadway. These headlights
are at about 31" height.
Results of in mine Rear View:
[Refer to diagram on Ex. G-1]
Results of turning EIMCO (away from operators sight):
The operator in this case could not see the Isuzu pickup at a 269-foot distance. He could only see the glare
of the lights on the mine roof. There was a 5% grade
approximately drop from the corner turn point to the
Isuzu pick-up.
[Refer to diagram on Ex. G-1]
At 6" from the bucket of scoop, operator of the scoop
can barly [sic] see the top of the Isuzu for a considerable distance. The entry at this location was about
19 feet wide by 8 feet height. This diesel scoop is
approximately 76" height from the ground to the top of
the canopy. From the entry floor to the tope of the
highest point on a surge tank cover plate it was 65".
This machine is 8' 1 11 •
The operators compartment on the
machine is flush with the right-hand side of this machine.
In the writers view--the visability [sic] on this machine is
terrible from the operators compartment. There has been one
reported serious accident--with this scoop and an Isuzu
pick-up truck driving into each other. Neither operator
seen each other until it was too late.

1708

[Refer to diagram on Ex. G-1)
To summarize thes~ two diagrams, diagram A which is to
the radiator and- end of the machine.
[A] 5' 9" man was
placed 4' from the side of the machine and he could not
be seen from the belt up, until a point 72 1/2' distance.
The boot level of the miner could not be seen for a distance of 92 1/4 feet (This wouid be 90% to 100% of the
miner view.
In Diagram B, looking over the bucket of this machine-the same man was placed 4' from the right-hand side of
this machine and this man--from the belt up could not
be seen for a distance of 130 feet (50% observation of
this man) and from his boots up to his head could be
seen at about 199' from the operators eye area. These
tests were run on the surface.
There is no part and section of 30 C.F.R. that relates
to tnis visability [sic] problem observed here, so this
is a 107-a order with no violation of-.Part 30 CFR.
A regular operator was placed in the operators cab prior
to making these tests and all distances were based· on
his sight (Terral Hardy).
The first modification of the Order was issued by Inspector
Lemon on July 16, 1990, stating:
"107Ca) Order dated July 12,
1990, is hereby modified to also show that following the interviews of five Diesel EIMCO 915's operators, it was found that far
more than one accident had occurred over a five-year period. At
least 15 accidents were substantiated through the interviews.
Ed .Taylor, operator, five accidents; Scott Oliver, operator, two
accidents; Robert Phelps, operator, one accident; Steve Miner,
operator, three accidents; James Ledger, operator, three accidents. All these operators·talked to, stated that a real visibility problem exists opposite the operator's side of these two
EIMCO 915s on this property. Also, that serious blind spots
exist when making a turn away from the operator's sight, into
crosscuts or around entries. These interviews were conducted on
July 13, 1990."
The second modification was issued by Inspector Lemon on
July 18, 1990, indicating:
"107-a Order No. 3583332 dated
July 12, 1990, is hereby modified to show continuations sheet
No. 2 .~odified on the lower diagram, under Results of Turning
EIMCO (away from operator sight). This diagram of the EIMCO
scoop is modified to show the bucket on the other end of the

1709

EIMCO 915. Also in the body of the condition under this diagram,
the first sentence is modified to read; at 6" from the Radiator
end of this scoop, the operator of the EIMCO can barely see the
top of the Isuzu pick-up truck."
Inspector Lemon was sent to the mine by his superiors on
July 12, 1990, to take a "second look" or make a "follow-up"
following an earlier MSHA investigation into a complaint filed
under section 103{g) of the Mine Act with special emphasis on the
visibility problems of the 915s {T. 29, 62, 74).
The Section 103(g) Complaint l;
In a letter to Randy Tatton, UPL's Safety Director, Steven
L. Thornton, President, UMWA, Local 2176, District 22, complaints
by 915 (927) diesel haulage operators in a May 10, 1990, union
meeting relating to "Isuzu trucks" and visibility problems were
reported (Ex. A-6).

1/

Section 103Cg) of the Mine Act provides:
"(g)(l) Whenever a representative of the miners or a miner
in the·case of a coal or other mine where there is no such
representative has reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized
representativ~ of such violation or danger.
Any such notice
shall be reduced to writing, signed by the representative of
the miners or by the miner, and a copy shall be provided the
operator or his agent no later than at the time of inspection, except that the operator or his agent shall be notified forthwith if the complaint indicates that an imminent
danger exists. The name of the person giving such notice
and the names of individual miners referred to therein shall
not appear in such copy or notification. Upon receipt of
such notification, a special inspection shall be made as
soon as possible to determine of such violation or danger
exists in accordance with the provision of this title. If
the Secretary determines that a violation of danger does not
exist, he shall notify the miner or representative of the
miners in writing of such determination.

1710

By letter of May 16, Mr. Tatton and Earl Snow, General Mine
Foreman, responded to the Thornton letter and listed some 12
measures being taken to resolve the problems.
(Ex. A-5).
Based on an unsigned complaint dated May 21, 1990 (Ex. A-7,
p. 1), MSHA Inspector Fred R. Marietti, (on the same date) conducted an investigation of the complaint and on May 22, 1990,
issued a two-page report based thereon (also Ex. A-7, pp. 2 and
3). This report states.
"This is the result of a 103(g) inspection conducted
on 05/21-22/90. The EIMCO 915 scoop was looked at
and the operators of the scoops interviewed. Changes
in lighting, moving of lights, removal of metal or
lowering has been conducted on the machine to increase
the operators visibility. The operators feel they
are in control of their machine. Because the machine
is so large and the mine environment restricts·the
machine's mobility, it is apparent that they have to
be operated with some precautions. This also includes
precautions of other equipment being operated by its
operator. Traffic rules have to be established and
followed to avoid accidents. In regard to the 300

1/

(Footnote continued)
(2) Prior to or during any inspection of a coal or
other·mine, ~ny representative of miners or a miner in the
case of a coal or other mine where there is no such representative, may notify the Secretary or any representative
of the Secretary responsible for conducting the inspection,
in writing, of any violation of this Act or of any imminent
danger which he has reason to be.lieve exists in such mine.
The Secretary shall, by regulation, establish procedures for
informal review of any refusal by a representative of the
Secretary to issue a citation with respect to any such alleged violation or order with respect to such danger and
shall furnish the representative of miners or miner requesting such review a written statement of the reasons for the
Secretary's final disposition of the case."

1711

feet mentioned in the 103(g) complaint, 2/ there are
many areas where that would be impossible due to dips,
bends, and other conditions common to the mine environment. Depending on the size of the equipment, lower
as an Isuzu pick-up, it may not be able to be seen
immediately alongside or within·25 to 50 feet in
front or behind on the side opposite the operator's
compartment. A person standing is more easily seen
with his light and reflective tape and this mine requires reflective vests also. Operators of Isuzus and
other equipment were interviewed also. It appears
that the general consensus of the persons interviewed
was that traffic rules and consideration with safe
driving methods need to be followed. On May 16, a
meeting was held between management and representatives of the miners. A copy of the outcome with
problems needing to be addressed is enclosed as a
part of this investigation. At the time of this
investigation, the problems addressed have been implemented or are being worked on. There were no
violations, safeguards, or orders issued."
According to Inspector Lemon, he had no knowledge why
Inspector Marietti-did npt issue a withdrawal order, but he
assumed that "he didn't go through the tests and examinations
we went through."
CT. 60). This impression was borne out in
the record CT. 168-172, 176-179, 201).
General Findings
At the times material herein, UPL utilized two 915s at its
Cottonwood underground coal mine and has done so since approximately 1985 CT.152).

2/
The complaint alleges:
"The EIMCO 915 loaders at our mine
have a visibility problem of which the operators cannot see the
travelway or incoming traffic 300' out.
(This was brought up by
an operator at a meeting with management.) We feel this to be an
imminent danger to personnel traveling the roadways. Also, we
have experienced several accidents involving this equipment."
(Ex. A-7).

1712

The 915 is 30 feet long by 8 feet wide by 5 feet high (T.55,
149). 3/ It weighs approximately 20 tons CT. 85, 149) and runs
between five and seven mph CT. 67, 242). The 915 is more suitable for metal/non metal mines since they generally have a higher
seam than coal mines CT. 144-146).
Eighty to 90 percent of the time, the two 915s are engaged
in taking supplies from outside the mine to the sections and the
rest of the time they are engaged in "gobbing" - a process of
cleaning up loose coal on an active section, or "even outby in
crosscuts or roadways." The 915s travel "the most traveled
roadways into the mine" and "travel all the main intakes in."
Inspector Lemon testified the 915s would meet all traffic "coming
in the opposite direction" and would meet "occasional miners
walking along intakes, miners coming from other entries, belt
entries, what have you, through the doors through these intakes."
(T. 54-55, 120, 149, 150). The two 915s are operated on all
three eight-hour shifts at the mine CT. 96).
One miner, Jeffery A. Ricchetti, a mechanic, described the
effect of the 915s as follows:

operationa~

"Well, one, I've seen these operators visually,
because they can't see out of the machine, they've
hooked onto pieces of equipment in my sections, drug
'em down the entries, they've run into our material
cars, tore the supplies off the material cars, they've
ran into 7200 cables with these machines, live 7200
cables with these machines, basically because they
can't see out of these machines. And they are big and
large, and they take up the entry, and they kind of
scare you when you go around them."
CT. 84).
Ricchetti also described the mine as being full of intersections, turns, d.ips and rolls (T. 91, 94) and indicated that it
was difficult from an Isuzu pick~up to see another pickup at 100
or 200 yards (T. 91).

3/
By comparison, an Isuzu pick-up weighs 3000 pounds CT. 85).
There were approximately 25-27 Isuzus operating at the mine (T.
286-287, 359, 378). At the time of the Order's issuance, not all
of the.- Isuzu pick-ups had been equipped with strobe lights.
(See
Ex. A-5; T. 288, 359).

1713

The adverse effect on visibility of the vagaries, "ups and
downs" and bends in the mine was conceded or confirmed by numerous other witnesses (T. 100-104, 113-114, 116, 187-188, 190,
197-198, 203-206, 265, 288, 290, 293, 301-305). The existence of
"blind spots" due to dips was also confirmed CT. 265, 297).
Relying on the reflections from the lights of ·other vehicles does
not always prevent the 915 operator from striking the other
vehicle CT. 295-296, 312-313). It would be "possible" not to see
a miner on foot due to "blind spots" CT. 297-299).
Upon his arrival at the mine on July 12, Inspector Lemon had
one of the two 915s brought to the surface (this was the "better"
of the two machines, T. 61) where he conducted visibility tests.
A "four-foot blind spot" was found by placing a 5'9" man four
feet from the machine CT. 30, 31, 32, Ex. G-3). For a distance
of 14 feet 8 inches parallel to the machine, the 915 operator
could see no portion of the man's head CT. 33, T. 140-144). Then
for a space of six inches, the man could be seen; then, however;
another blind spot occurred from the end of the six-inch point,
described by the Inspector as follows:
A.

Then at roughly an approximate point six inches inby
this 14 foot 8 inch point this man again went into
another blind spot and we advanced him out to nine foot
two inches.

Q.

Is that indicated here in Exhibit 3?

A.

Yes, it is.

Q.

And in that area this man who was walking parallel
four feet from the piece of equipment could not be
seen?

A.

Yes, sir. So from this examination we surmised that
we had a serious blind spot off the operator's side
of this machine, and being very concerned with this,
because this type of machine in a coal mine, there are
people wal]ting alongside of these machines." CT. 34).

The record reveals numerous situations where the 915 has
very limited or partial visibility (Ex. G-3, G-5, G-6; T. 34, 47,
49, 11, 97, 142, 193, 197-198, 211, ·210, 201, 295, 300>.
On July 12 after the surface tests, the 915 was taken
underground into the First South intake roadway where the
approximate mine height was 8 feet and the width was 20 feet
CT. 35).

1714

From first talking to two operators (Terral Hardy and
Edmond Taylor), Inspector Lemon determined there was a visibility
problem on the side opposite the operator, and in making turns
into crosscuts and entries (T. 36, 45, 47). With respect to the
915's visibility problem relating to the modified Isuzu pick-ups
used in the mine, Inspector Lemon testified:
"That means that I was standing right next to the
operator myself, although he was in--his visibility was
was probably just a little less than mine. I could see
roughly that much of the cab, and that's what he could
see, about an inch of the cab, about an inch and a half
of the cab. And after the six-inch outby, the six inches
the truck faded out of view, and up to a distance of 269
feet you couldn't see any part of the truck, nor could
you see any part of the headlights. All you could see
is the light off the truck, the glare off the mine roof."
CT. 39).
(Emphasis added).

xxx

xxx

xxx

THE WITNESS:

No, you cannot see the headlights. You can
see the light glare against the mine roof.

THE COURT:

Okay, you can see the top of the truck?

THE WITNESS:

No, you can't.

THE COURT:

Okay. Are you saying at 269 feet away,
you can't see any part of the truck?

THE WITNESS:

Yes, that's what I.'m saying.

THE COURT:

Oh, okay. So on EXHIBIT 5 you indicated
269 feet the Eimco operator cannot see the
headlights of the truck?

THE WITNESS:

That's

THE COURT:

Okay, you're saying now he couldn't
see the top of the truck either?

THE WITNESS:

No, all he could see was the light reflections off of the line roof from a blue
strobe light.n CT. 41).
(Emphasis added).

ri~ht,

sir.

Inspector Lemon gave this description of the view an
operator has through the cab of the 915:

1715

A.

This gives a true· indication of the view, it
gives a true indication of the real problem
we have, a basic problem of tunnel vision.
When you're setting in this cab, your head is
against this cab, and you're looking at a
space of two to two and three-quarter inches
over to five and three-quarter on the far
left side of that and this machine, if you
keep in mind, is approximately eight feet
one inches wide. It's just like looking down
a tube." CT. 52) • See also Exhibit G-4.

The Inspector explained his decision to issue an imminent
danger Order in this manner:
"I concluded it was very dangerous with the
blind spots that we have. I feel it's a very
serious blind spot opposite the operator's side
of the machine, and I feel also that it's a
very dangerous situation exists with visibility
on turns, and that's why I issued the order.
That's my feeling, that we have a serious situation here."
CT. 77).
Respondent MSHA established that there has been a signif icant number of accidents involving the 915 over the 5-5! year
period it had been in use at the Cottonwood Mine. Thus, Inspector Lemon's investigation revealed there had been approximately
15 accidents over the period CT. 50, 58, 73).
Several of these accidents had the potential of causing
serious injuries CT. 50, 73, 100-102, 158, 195, 281, 301).
In one of the accidents, involving an Isuzu pickup driven by
Larry Hunsaker, aq electrician mechanic, and Robert Phelps, who
was operating a 915, the Isuzu pickup was "totaled" CT. 102,
111)~
Hunsaker narrowly escaped serious injury CT. 100, 101-102,
111, 112). Although the two vehicles were approaching each other
"head on," neither driver saw the other CT. 107-108, 113-114,
116). While Hunsaker received "corrective action" from UPL for
"going too fast," the record nevertheless indicates the essential
cause of this and other accidents as the visibility problem of
the 915 driver CT. 47-49, 65, 89-90, 91, 113, 114, 116, 118,
134, 159-160, 193, 194, 197, 203-206, 277, 278, 291).
Another 915 accident resulted in the filing of a safety
grievance in April 1990 CT. 158), following which special
meetings were held between UPL, UMWA, and the 915 operators.

1716

After these meetings UPL installed work changes and equipment
changes prior to the July 12, 1990 Withdrawal Order CExs. A-1,
A-5, A-6; T. 160). Some of these changes announced by UPL in a
May 16, 1990 memo (Ex. A-5) were to encourage Isuzu travel in
certain areas, counseling an apparently aberrant Isuzu operator,
training in traffic policies, upgrading lighting (high intensity
blue strobe light) for parked Isuzus, training Isuzu operators to
get into a safe location at least 300 feet away from oncoming
large equipment, eliminating a severe dip, upgrading lighting
systems on the 915s, and lowering the 915s fenders to improve
visibility CT. 160-168, 172, 191, 216, 229). Nevertheless, these
changes, presumably in effect on July 12, 1990, did not change
the testing and measuring results CExs. G-2, 3, 4 and 5) obtained
by Inspector Lemon, nor the opinions of various credible witnesses adduced at the hearing as to the visibility problem.
Further the upgraded lighting was not placed on other equipment
CT. 163, 216-217), nor were the strobe lights installed on all
Isuzu pickups CT. 288, 378-379).
MSHA also established that there was considerable exposure
to miners ·traveling on foot in the mine by the blind spots and
visibility limitations of the 915 CT. 94-95, 110, 142-143, 256,
266-273, 290, 292, 297-299, 389).
Contestant's Positions
Contestant established through its Chief Safety Engineer,
Randy B. Tatton, that the most serious disabling injuries at
the mine were back injuries and that use of the 915, which has
the capability of delivering material in close proximity to the
work site, would decrease such injuries by decreasing the amount
of material actually handled by miners CT. 150).
915 operators are task-trained on the machines and on
several occasions-special training sessions have been held to
discuss new work rules, and such things as use of lights and
rights-of-way rules CT. 152-154, 155).
No "occupational injuries," i.e. lost-time injuries, have
occurred at the Cottonwood mine as a result of the operation of
the 915s CT. 156). While the accident involving Phelps-Hunsaker
involved an injury to Hunsaker, such required only first-aid and
was not classified as an occupational injury calling for reporting to MSHA CT. 157).

Mr. Tatton testified that following the installation of
new work rules on or about May 23, 1990, there have been no
collisions involving the 915 CT. 171, 174-175).

1717

Mr. Tatton described in some detail what he considered
Inspector Lemon's indecision after conducting his measurements
and before the withdrawal order was issued CT. 180-184}. Among
other things, Mr. Tatton indicated that on July 12 the inspection
party returned to the surface and arrived at his off ice about
12:15 p.m.; that he asked Inspector Lemon what he was "going
to do with the machine," and that the Inspector said he had to
look at his information before making a decision. Mr. Tatton
said it was not until 1:30 p.m. to 1:45 p.m. before the company
was asked to take the machines out of service CT. 180-182).
Mr. Tatton gave the opinion that the use of the 915 at the
Cottonwood mine did not constitute an imminent danger and
explained:
"To me an imminent danger means that if that
machine turned around and went back in that mine, it
would probably kill somebody; and I knew for a fact
we'd operated two machines for five years and never
even had an occupational injury."
CT. 184).
The 915 operator Edmond Taylor indicated that at 2 p.m. on
July 12, 1990, he was asked by one Dixon Peacock to tag his 915
out of service CT. 228). Mr. Taylor's opinion was that the 915's
visibility problem did not create an imminent danger CT. 228,
248).
Dale Fillmore, area manager for Eimco/Jarvis/Clark, the
maker of the 915, testified that he is in charge of sales and
service of his company's products for his area; that the 915 has
been produced for 15 years; that some 20-25 other "mines" use the
915; that "several" of such mines have si.milar seam heights to
the Cottonwood min~; that it was his opinion that use of the 915
at the Cottonwood was not reasonably likely to lead to death or
serious injury; that the safety of the 915 has to be related to
the professionalism of the operator and such things as work
rules.
Dave D. Lauriski, director of health, safety and training
for UPL testified that at 12:30 p.m. on July 12, 1990, he called
the mine and spoke with Mr. Tatton CT. 345-346} who told him that
"there was a concern that there was·going to be some enforcement

1718

action taken against the equipment." 4/ Mr. Lauriski then went
to the mine and discussed the matter with Inspector Lemon, who
was undecided whether to cite a violation or issue an imminent
danger order CT. 346, 349). Lauriski suggested that a meeting
with Inspector Lemon's supervisors in Price, Utah might be in
order in lieu of enforcement action being taken CT. 349).
According to Mr. Lauriski, it was at this point that Inspector
Lemon suggested that UPL voluntarily take the 915s out of service.
Inspector Lemon's supervisor was called and reportedly he, in
effect, said that the enforcement decision was Inspector Lemon's
to make and that such a meeting as that suggested by Lauriski
would be "meaningless."
CT. 349-350). Inspector Lemon then
issued the withdrawal order.
Mr. Lauriski did not believe that the "visibility restrictions" on the 915 created "a reasonable likelihood of serious
injury or death."
CT. 351). He also said that taking the 915s
out of service increases the "manhandling" of materials by individual miners, would slow down supplying the mine with needed
materials for retreat mining, etc., and would increase the risk
of injury to miners because of the types of manual labor that
might have to be performed. He also was concerned that mine
housekeeping and trash removal would deteriorate CT. 352-353,
356). He also indicated that on July 12, 1990, only approximately three-fourths of the 26-27 Isuzu pickups were equipped
with strobe lights for use when parked CT. 359, 378-379).
As noted above, contestant UPL introduced evidence that, to
make the 915's operation safer, it installed work changes and
equipment changes prior to the July 12, 1990 Withdrawal Order
CExs. A-1, A-5, A-6; T. 160-167, 172).
Nevertheless, these changes pre·sumably in effect on July 12,
1990, did not change the testing and measuring results obtained
by Inspector Lemon, nor the opinions of various credible
witnesses adduced at the hearing as to the visibility problem.
Further, the upgraded lighting was not placed on other equipment
CT. 163, 216-217), nor were the strobe lights installed on all
Isuzu pickups CT. 288, 378-379).

4/ 12:30 p.m. would have been shortly after the inspection party
returned to the surface. This particular testimony also supports
Inspector Lemon's position that he was going to do something
about the 915s.
(See also T. 363).

1719

UPL also established that it had certain "Rules of the Road"
in effect on July 12, 1990, one of which, pertaining to right-ofway, provided that smaller vehicles must give way to larger
vehicles CT. 70-71). The record indicates that the 915 is the
largest such equipment in the mine CT. 89). Here again, though,
there is the evidence that, while the Isuzu pickups were required
by this rule to get out of the way of the oncoming 915s, there
are occasions, such as when going around a turn, when this is
impossible CT. 90-91, 190, 193, 197-198, 276-279).
Other significant (and preponderant) evidence shows Cl)
because of dips and turns, the 915 operator's visibility is
further limited CT. 127, 131, 159, 191, 197-198, 235, 238,
265);(2) the rules are not always followed CT. 127, 131, 159,
191, 197-198, 203, 206, 238-240, 244-246, 276, 277, 278,
281-284); and (3) conditions are not always "normal" CT. 97, 193,
197, 238-240j 244-246, 276, 277, 278, 281-284). Individual
miners do not wear their reflective tape in the same place
CT. 284).
UPL makes the argument that there were 5 to st years of
inspections at the Cottonwood mine while the 915 loader was in
service without a withdrawal order being issued.on the 915. To
the extent that such contention goes beyond the raising of a
possible basis for inferring that the 915 has no dangerous
visibility problem and raises the defense of estoppel, such is
rejected. See Secretary of Labor v. King Knob Coal Company,
Inc., 3 FMSHRC 1417 (1981). Further, there is no showing that
the specific limits of visibility were ever previously determined
as they were'in the tests and measurements of Inspector Lemon,
and as I have noted elsewhere herein the determination of
Inspector Marietti apparently was not anywhere as thorough as
that of Inspector Lemon.
Contestant UPL-was also concerned with and presented evidence with respect to its economic hardship and cost factors
which would attend the loss of use of the 915s. Such evidence,
however, is not found to be directly or indirectly relevant to
the decisive issue in this case: whether an imminent danger
existed.
Discussion and Conclusions
The question in this matter is whether or not the blind
spots and visibility limitations on the operators of the 915s
constitute an imminent danger.

1720

/,

The meaning of "imminent danger" has undergone transformation since the general concept of it first appeared in mine
safety law in 1952. ~/ See Freeman Coal Mine Company v IBMA,
(7th Cir. 1974). In that case the Court, speaking in reference
to the 1969 Federal Coal Mine and Safety Act, quoted from the
legislative history, to wit:
The definition of an "imminent danger" is broadened
from that in the 1952 act in recognition of the need
to be concerned with any condition or practice, naturally or otherwise caused, which may lead to sudden death
or injury before the danger can be abated. It is not
limited to just disastrous type accidents, as in the
past, but all accidents which could be fatal or nonfatal to one or more persons before abatement of the
condition or practice can be achieved.
115 Cong. Rec. 39985 (1969). (Emphasis added.)
The Federal Mine Safety and Health Review Commission in the
last year retained the view of the U.S. Appellate Courts in its
decision in Rochester & Pittsburgh Coal Company v. Secretary of
Labor, 11 FMSHRC 2159 (November 1989), wherein it set forth the
following useful formula for analysis of "imminent danger"
questions:
In analyzing this definition, the U.S. Courts
of Appeals have eschewed a narrow construction and
have refused to limit the concept of imminent danger
to hazards that pose an immediate danger. See ~,
Freeman Coal Miriing Co. v. Interior Bd. of Mine Op.
~' 504 F.2d 741 C7th Cir. 1974).
Also, the Fourth
Circuit has rejected the notion that a danger is imminent only if there is a reasonable likelihood that
it will result in an injury before it can be abated.
Eastern Associated Coal Corp. v. Interior Bd. of Mine
Op. App., 491 F.2d 277, 278 (4th Cir. 1974). The

~/

The Mine Act defines an imminent danger as "the existence of
any condition or practice in a coal or other mine which could
reasonably be expected to cause death or serious physical harm
before such condition or practice can be abated." Section 3(j)
of the Mine Acti 30 u.s.c. 802(j). This definition was not ·
changed from the definition contained in the Coal Mine Health and
Safety Act of 1969, 30 u.s.c. § 801 et seq. Cl976) (amended 1977)
Cthe "Coal Actw).

1721

court adopted the position of the Secretary that "an
imminent danger exists when the condition or practice
observed could reasonably be expected to cause death
or serious physical harm to a miner if normal mining
operations were permitted to proceed in the area
before the dangerous condition is eliminated. 491
F.2d at 278 (emphasis in original). The Seventh
Circuit adopted this reasoning in Old Ben Coal Corp.
v. Interior Bd. of Mine Op. App., 523 F.2d 25, 33
(7th Cir. 1975.)"
These principles seem to put to rest any argument--if such
is indeed actually made--by UPL that an "emergency" extant in the
mine is a prerequisite to the existence of an imminent danger
determination. In Rochester & Pittsburgh, supra, the Commission
also seemed to emphasize that the analytical focus is on the
"Potential of the risk to cause serious physical harm at any
time" (emphasis added). Inspector Lemon testified in this
connection that:
"In my mind, I feel that reasonably, at any time,
someone could be seriously hurt or killed, if I let
this condition go before it could have been abated."
(T.

56).

The Inspector 6/ elaborated on this judgment as follows:
A.

Okay, I'm very concerned with off the operator's
side, if they're hitting these pickups and they
don't actually know where the pickup is, I'm very
concerned with where the person that got out of
the pickup is, whether he's walking around. If
they couldn't see the pickup, they're not going
to see the operator that's between the line of
pickup.

Q.

What kind of hazard would there be?

A.

This would be an imminent danger, if he was pinned
between that and the machine, you'd kill him outright or crush him to where he'd be seriously hurt.

6/ Inspector Lemon was a particularly persuasive witness, his
testimony reflecting the thoroughness of his testing and investigation, his candid responses on cross-examination, and
sincerity of conviction.

1722

Q.

What if he was inside the truck, how would you
compare?

A.

If he was inside the truck, he could also be killed,
if the machine hit that pickup in the door side of
the operator, it could be fatal.
That's all in +elation to the speed that the machine is traveling,
but that's a very, very possible likelihood. CT. 56-57)

:UPL's claim that the 915 was really no different in visibility limitation to other pieces of·"equipment CT. 133-136,
184-185, 188-189, 203-206) was in the form of 'generally stated
opinion evidence, unsupported by measurements taken on such other
equipment or accident statistics CT. 198). Nor was such other
equipment shown to be similar to the 915 CT. 136-137). Such is
not considered to overcome the more detailed and convincing proof
submitted by MSHA in support of its conclusion that the 915's
blind spots visibility problem created an imminent danger
CT. 190, 193, 197, 203-206, 297, 299).
Although UPL in one of its major arguments takes the position that the Inspector's "delay" in issuing the Withdrawal Order
demonstrates an inconsistency with the "emergency" or urgency it
alleges is necessary to justify an imminent danger order, Inspector Lemon satisfactorily explained his actions as follows:
A.

Well, at this time I asked the safety man, Randy
Tatton, and a few other management people around
there, I
needed some time to go outside to look at
all the data we had got together, and compiled all
this·stuff, and I told him I felt we had a serious
problem here with visibilitya And I asked him at
this time if he would pull ·his machines.out of
service until I could get all this stuff together.
And so Randy said yes, this would be possible.
He took his machines out of service. They took
them outside and they put company tags on them and
they put them in the--it's a little house where
they store rock dust, right adjacent to their surface shop area.

Q.

So you did that immediately after you made your
observations of the situation?

A.

Yes.

Q.

You didn't wait two hours?

1723

A.

No, and we did that immediately. Randy took them
out of service immediately, and then we got outside
and we talked about the problems. I was having a
real problem finding a section in 30 CFR to attach
to the imminent danger order, and I couldn't find
one because there is not one. So I, in fact, issued
the order, and then we went down and put the tags
on the machine. And some of the safety department,
maybe one of the mine managers, went on down to the
Price office to meet with one of the supervisors,
and they asked me to go down with them, and I said
I'd be down shortly, as soon as I finished looking
at the Eimco and took some measurements. And I took
some measurements and looked at it.
CT. 45, 46).

Inspector Lemon, when called as a rebuttal witness, reiterated his testimony that while the inspection party was
still underground he asked Mr. Tatton (in the presence of the
union representative and an MSHA "technical support man") to
voluntarily remove the 915s from service CT. 381).
Based on the Inspector's explanation for the short delay in
issuing the withdrawal. order, and the fact that for at least part
of this period UPL actually, albeit voluntarily, removed the 915s
from active service, I attribute no misunderstanding or doubt on
the Inspector's part as to the necessity of or justification for
issuing the Order. 7/
UPL's "delay in issuance" argument can be equated to an
"Instant Recognition" test, that is, if the situation is not so
patent or obviously an "emergency," that it immediately dawns on
the "reasonable man" inspector observing such and causes him to
act instantaneously, then the condition or practice cannot be an

7/ One memoer of UPL's management, Garth Neilsen, Longwall
Superintendent, verified that the Inspector was concerned about
getting the 915s out of service and that his "indecision" was
about how to do it:
To me he seemed undecided. I do feel he felt
there was a definite safety problem there, as
far as visibility, but he felt--I felt that
he felt he was undecided on how to handle that,
.as far as which way to get the machine out of
service.
CT. 211)
(Emphasis added).

1724

imminent danger. Such a test undoubtedly would cover some imminent danger situations, but not necessarily all. Applying such a
test might frequently shift the litigation from a trial of the
true issue to a trial of such things as the Inspector's I.Q., his
fatigue, or his high-level expertise on a specific safety subject.
Again, the effect would be that if the inspector cannot literally
"hip-shoot" a particular decision, the withdrawal order should
not stand. Such a squeezing of the decision time-frame would infringe on the principle that mine inspectors must have "the necessary authority for the taking of action to remove miners from
risk." Rochester & Pittsburgh Coal Co., supra. In the instant
matter, the inspector had measurements, tests, information, a
number of laws, enforcement options and fairness to the mine
operator as factors to weigh. Any one of such factors in a given
set of circumstances might justify a longer period of deliberation than that involved here. Forcing a hasty decision may not
always be consistent with either sound mine safety enforcement or
justice,.
I find no basis for concluding that Inspector Lemon abused
his disc~etion or authority in the issuance of an imminent danger
withdrawal order in this matter.
It is concluded that the conditions observed by the Inspector and described in the record could reasonably have been
expected to cause death or serious physical harm to a miner if
normal mining operations were permitted to proceed, and that the
use of the 915s with the severe visibility limit~tions described
herein above created a significant potential of causing serious
physical harm at any time.
ORDER
Based on the foregoing findings and conclusions, UPL's
application for review seeking vacation of Withdrawal Order
No. 3583332 is DEN~ED and the Order is AFFIRMED.

.

d

~~~/c:?:P~u,

Michael A. Lasher, Jr.
Administrative Law Judqe

Distribution:
Susan E. Chetlin, Esq., Crowell & Moring, 1001 Pennsylvania
Avenue, N.W., Washington, D.C. 20004-2505 (Certified Mail)
James A. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
Robert Jennings, United Mine Workers of America, P.O. Box 783,
Price, UT 84501 (Certified Mail)
1725

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

AUG 2 8 \990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.
BELLAIRE CORPORATION,
Respondent

.
.
.
..
.
.

CIVIL PENALTY PROCEEDING
Docket No. CENT 89-47
A.C. No. 32-00044-03511
Indian Head Mine

DECISION
Before:

Judge Cetti

This case is before me upon a petition of assessment of
civil penalty under Section 105Cd) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801, et seq:,, the "Act".
The Secretary of Labor on behalf of the Mine Safety and Health
Administration (MSHA), charges the Respondent, Bellaire Corporation (Bellaire), as operator of the Indian Head Mine with the
violation of 30 C.F.R. § 77.1605Ck) and 30 C.F.R. § 77.1103Ca).
Respondent filed a timely answer contesting the violations. With respect to Citation No. 2930426, Respondent denies
Petitioner's allegation that a violation occurred and contests
the citation on the grounds that the safety cans referred to in
the citation were "identified" within the meaning of 30 C.F.R.
§ 77.1103Ca), and on the grounds that the citation constitutes
an unlawful retroactive application by Petitioner of a change
in policy with respeet to the interpretation of 30 C.F.R.
§ 77.1103Ca)
With respect to Citation No. 2930427, Respondent denies
Petitioner's allegation that a violation occurred and contests
the Citation on the grounds that it constitutes an unlawful
retroactive application by Petitioner of a change in policy
with respect to the interpretation of 30 C.F.R. § 77.1605Ck).
Citation No. 2934026 alleging a significant and substantial violation of 30 C.F.R. § 77.1103(a) and Citation No.
2930427, were issued by federal mine Inspector Sass based on his
AAA inspection of Bellaire's Indian Head Mine. Petitioner filed
a proposal for penalty in the sum of $363 for Citation Nos.
2930426 and 2930427.

1726

Citation No. 2930427 - VACATED
On August 7, 1989, petitioner filed a motion for leave
to vacate Citation No. 2930427 and withdraw its related $206
proposed penalty based upon its determination that the citation
was issued in error. The motion is GRANTED. Citation No.
2930427 and its related proposed penalty are vacated.
Citation No. 2930426
The remaining Citation No. 2930426, by agreement of the parties, is now submitted for decision without hearing on stipulated facts, affidavits, exhibits, and supporting briefs. The
primary issue is whether the five-gallon cans containing a flammable liquid (gasoline) referred to in Citation No. 2930426 were
"properly identified" as that term is used in 30 C.F.R.
§ 77.1103(a).
Stipulations of Facts not in Dispute
1. Bellaire Corporation ("Bellaire") is engaged in mining
and selling of lignite in the United States and its mining operations affect interstate commerce.
2. Bellaire is the owner and operator of Indian Head Mine,
MSHA I.D. No. 32-00044-03511.
3. Bellaire is subject to the jurisdiction of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 801 et~'
C"the Act") •
4.
matter.

The Administrative Law Judge has jurisdiction in this

5. Citation No. 2930426 Cthe "Citation"), a true and correct copy of which is in evidence as Exhibit 1, was properly
served by a duly authorized representative of the Secretary upon
an agent of Bellaire on the date and place stated therein and is
admitted into evidence for the purpose of establishing its issuance and not for the truthfulness or relevancy of any statements
asserted therein.
6. The proposed penalty will not affect Bellaire's ability
to continue business.
7.

Bellaire demonstrated good faith in abating the viola-

tion.
8. Bellaire is a large mine operator with approximately
1,100,000 tons of production in 1988.

1727

9. Bellaire has never had any accidents or injuries involving color coded safety cans used to store flammable liquids.
10. September 12, 1988, was the first time that
Richard Sass, who issued the Citation, inspected the Indian Head
Mine.
11. The safety cans described in the Citation (the "Safety Cans") were all of the five-gallon size, were approximately 12
in number and were all colored red. One of the Safety Cans was
labeled "Kerosene" and was empty. All of the other Safety Cans
were empty or contained gasoline. All of the Safety Cans complied with Bellaire's Policy on Uniform Color Coding of Safety
cans.
12. All of the Safety Cans were located in the "fuel farm"
area at the Indian Head Mine. The fuel farm is approximately
45 ft. x 105 ft. in size; contains gasoline, diesel fuel and
oil storage tanks, as well as gasoline and diesel fuel pumps;
and is surrounded by a dike approximately two feet high which
cannot be crossed by vehicles, as required by state law. A
true and correct drawing depicting the fuel farm area at the
time of the Citation was issued is attached hereto as Exhibit 2.
All of the Safety Cans were inside the dike surrounding the
fuel farm and were located within twenty (20) feet of the gas
pump.
"NO SMOKING", "FLAMMABLE" and "KEEP OPEN FLAMES AWAY"
signs were posted at the fuel farm when the Citation was issued.
No ignition sources were present.
13. The flammable liquids in the Safety Cans were stored
in accordance with all applicable standards of the National
Fire Protection Association.
14. There are no factual issues in dispute. The only
legal issue in dispute is whether the use of color coding to
identify safety cans containing flammable liquids violates
30 C.F.R. § 77.1103(a).
15. No hearing is necessary in order for the Administrative Law Judge to decide the legal issue presented by this case.
16. If the Administrative Law Judge finds in favor of
Petitioner on the alleged violation of 30 C.F.R. § 77.1103Ca),
Respondent agrees that the violation would be significant and
substantial and that the amount of penalty, as proposed by the
Secretary of Labor, would be appropriate.

1728

17. The certified copy of the MSHA Assessed Violations
History (Joint Ex. J-1) accurately reflects the history of
Bellaire Corporation's Indian Head mine for the two years prior
to the date of Citation No. 2930426.
18. The safety cans cited in Citation No. 2930426 were not
labeled in writing or lettering of any kind which named the contents of the cans.
19. The safety can labeled "kerosene," which is referred to
in Stipulation No. 11, was properly identified and is not covered
by Citation No. 2930426.
The Record
The record before me, in.addition to the stipulated facts
set forth above, includes Cl) Bellaire's Policy on Uniform Color
Coding of Safety Cans (Ex. l); (2) a diagram of the fuel farm at
the Indian Head Mine (Ex. 2); (3) the affidavit of Inspector
Richard Sass Cthe "Sass Affid.") filed by Petitioner, (4) the
affidavit of Robert L. Benson, general superintendent of the
Indian Head Mine, the "Benson Affid.") filed by the Respondent,
and; (5) the printout of the Respondent's prior history of violations at the Indian Head Mine during the two years prior to the
issuance of Citation No. 2930426 (Ex. J).
DISCUSSION
30 C.F.R. § 77.1103Ca) provides:
Flammable liquids shall be stored in accordance
with the standards of the National Fire Protection Association. Small quantities of flammable
liquids drawn from storage shall be kept in E.!:22perly identified safety cans.
(Emphasis added).
Citation No. 2930426 describes the alleged violation as
follows:
Safety cans, containing a flammable liquid (gasoline),
were obsurved [sic] by the fueling area that were not
properly identified with a !able [sic] to show the contents of the cans. This condition creates a hazard of
an explosion or fire.
(Emphasis added).

1729

On page 1 of her "Memorandum Brief in Support of Proposal
for Penalty, Petitioner states that the sole issue for decision
is whether the red safety cans containing gasoline observed at
the mine's fuel farm were properly "labeled." That is not the
issue. The issue is whether the cans containing gasoline were
properly "identified." The cited safety standard expressly
requires only "proper identification," not "proper labeling."
The parties now stipulate that there are no factual issues
in dispute and that the only legal issue in dispute is whether
the use of color coding to identify safety cans containing flammable liquids violates 30 C.F.R. § 77.1103(a). 1/
The key term in the cited regulation is "properly identified." Respondent contends that the regulation permits the use
of color coding to identify safety cans containing flammable
liquids. The Petitioner, on the other hand, contends that labeling is the only proper means of identification. 2/ The term
"properly identified" is not defined in the regulations at Title
30 of the Code of Federal Regulations, and neither party has
cited any cases on point.

1/ The parties have stipulated that the safety cans cited were
in accordance with all applicable standards of the National Fire
Protection Association. CStip.#13).
2/
The Secretary has not published or distributed to mine operators any document which interprest 30 C.F.R. § 77.1103(a) to
require the use of labeling, and prior to the issuance of Citation No. 2930426, the Secretary never advised Respondent that
color coding was unacceptable.
[Benson Affid. ! 3.B. and 3.C.]
In his Affidavit, Inspector Sass states that it has always
been MSHA's policy to require labeling under 30 C.F.R.
§ 7.1103(a), but it clearly appears no such written policy
exists. Furthermore, the fact that Respondent utilized its color
coding system for almost six and one-half years without being
cited and was inspected by MSHA many times during this period
tends to demonstrate that no such policy existed at least in
MSHA's District 9.

1730

It is well established that in construing a statute or regulation, one must first look to the plain language of the provision. Secretary of Labor v. Freeman United Coal Mining Company,
6 FMSHRC 1577, 1578 (1984); Secretary of Labor v. Puerto Rican
Cement Company, Inc., 4 FMSHRC 997, 998 (1982).
The relevant meaning of "identify" is, "to establish the
identity of." Webster's Ninth New Collegiate Dictionary (1986)
p. 597. It is generally accepted that identity can be established through means other than labeling.
If the Secretary had meant to require labeling in 30 C.F.R.
§ 77.1103(a), she could have easily done so as she did in 30
c.F.R. § 57.4402. That regulation deals with storage of flam-

mable liquids in underground metal and nonmetal mines and
provides:
Safety cans. Small quantities of flammable liquids
drawn from storage shall be kept in safety cans •
labeled to indicate the contents.
The fact that both regulations deal with the same subject
matter (storage of flammable liquids) and that the Secretary
expressly required labeling in one .instance but not in the other
is a clear indication that the Secretary did yot intend to
require labeling in 30 C.R.F. § 77.1103(a). ~
Even if the Secretary did intend to require labeling under
30 C.F.R. § 77.1103(a), she did not adequately express her
intent, and as the Court in Phelps Dodge Corp. v. Federal Mine
Safety and Health Review Commission, 681 F.2d 1189, 1193 (9th
Cir. 19.82 > observed:
If a violation of a regulation subjects private
parties to criminal or civil sanctions, a regulation
cannot be construed to mean what an agency intended
but did not adequately express.

3/
Significantly, in 30 C.F.R. § 56.20012, the Secretary also
expressly required labeling of toxic materials. That regulation
provides:
Labeling of toxic materials: Toxic materials used in
conjunction with or discarded from mining and milling
of a product shall be plainly marked or labeled so as
to positively identify the nature of the hazard and the
protective action required.

1731

I concluded that the proper construction of 30 C.F.R.
is that an operator may use any reasonable means
of establishing for its employees the identity of flammable
liquids stored in safety cans.
§ 77.1103(a)

The Secretary already has recognized that color coding is
a proper means of identification. In 30 C.F.R. § 77.1710-1 and
30 C.F.R. § 75.1720-1 the Secretary has required the use of
distinctively colored hard hats to identify new miners. 4/
Thus, I am hard pressed to give credence to the Secretary's
assertion that color coding is not a proper means of identification.
Her argument is not persuasive.
It has not been demonstrated that Respondent's color coding
system failed to establish for employees at the Indian Head Mine
the identity of flammable liquids stored in safety cans. Respondent issued a written policy covering its color coding system.
The policy was posted at ten locations at Respondent's mine. All
employees were instructed on the policy when it was implemented,
and all new employees are instructed on the policy as part of
their initial training and orientation. In addition, "FLAMMABLE," "NO SMOKING" and "KEEP OPEN FLAMES AWAY" signs were
posted in the fuel farm-area at the mine where the safety cans in
issue were located. Respondent has not had any accidents involving safety cans used to store flammable liquids since implementing its color coding policy on April 16, 1982. It appears from
the record that Respondent's color coding policy works.
The Secretary argues that the safety cans in issue were
not properly identified, because the identity of the contents

!/

30 C.F.R. § 77.1710-1 provides:
Hard hats or hard caps distinctively different in
color from those worn by experienced miners shall
be worn at all times by each newly employed, inexperienced miner when working in or around a mine
or plant for at least one year from the date of his
initial employment as a miner or until he has been
qualified or certified as a miner by the State in
which he is employed.

1732

was not "readily apparent" to visitors like Mr. Sass who were not
familiar with the Respondent's color coding system. 5/ Thi~
argument necessarily assumes that federal mine inspectors and
other visitors lack common sense and, if left unattended, will
without permission experiment or tamper with things at a coal
mine. This argument is not persuasive and, if applied to the
entire mining operation, would lead to a host of absurd results.
The purpose of the Federal Mine Safety and Health Act, as set
forth in Congressional findings and declaration of purpose, 30
u.s.c. § 801, is to protect miners, which Respondent's color
coding system with its training and posting requirements certainly does. The argument that the identity of the contents of
the safety cans was not readily apparent to Mr. Sass is not
persuasive and certainly is not dispositive of the issue.
If the Secretary truly believes that the identification
required by 30 C.F.R. § 77.1103(a) should be done specifically by
labeling and no other method, she should so modify the regulation
in accordance with Section lOl(a) of the Mine Act, which requires
all rules concerning mandatory health or safety standards to be
promulgatea in accordance with section 553 of the Administrative
Procedure Act ("APA"), 5 u.s.c. § 553. Further, section
10l(a)(2) of the Act, 30 u.s.c. § 8ll(a)(2), requires the Secretary to publish in the Federal Register any "proposed rule promulgating, modifying, or revoking a mandatory health or safety
standard" and to permit public comment on the proposed regulation
(emphasis added).
Based upon the foregoing findings of fact and conclusions of
law, I enter the following:
ORDER
1. Citation No. 2950426 is vacated and its related proposed
penalty is set aside.

5/ Mr. Sass had never inspected the Indian Head Mine prior to
the date he wrote Citation No. 2930426.
CStip. #10).

1733

2. In accordance with Petitioner's motion Citation No.
2930427 is vacated and its related proposed penalty set aside.

F. Cetti
istrative Law Judge

Distribution:

s. Lorrie Ray, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Office Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Andrew S. Good, Esq., Bellaire Corporation, 12800 Shaker Boulevard, Cleveland, OH 44120-2099
(Certified Mail)
Mr. Robert L. Benson, Bellaire Corporation, P.O. Box 299, Beulah,
ND 58523 (Certified Mail)
Mr. Wayne Stevens, IMWA, Route One, Box 180, Hazen, ND 58545
(Certified Mail)

/ek

1734

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

AUG 2 81990
ENERGY FUELS COAL, INC.,
Contestant

v.

.
.
:
.
.
.
.:
:

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

:
:

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

v.

...
..
:
:

ENERGY FUELS COAL, INC •. ,
Respondent·

CONTEST PROCEEDING
Docket No. WEST 89-296-R
Citation No. 3077175; 5/11/89
Docket No. WEST 89-288-R
Citation No. 3077183; 5/11/89
Southfield Mine
Mine I.D. 05-03455
CIVIL PENALTY PROCEEDING
Docket No. WEST 89-449-A
A.C. No. 05-03455-03569
Southfield Mine

..

DECISION APPROVING SETTLEMENT
Appearances:

Before:

Phillip D. Barber, Esq., Welborn, Dufford, Brown &
Tooley, Denver, Colorado,
for Contestant/Respondent;
Margaret A. Miller, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for Petitioner/Respondent.

-

Judge Lasher

The parties, through the Secretary of Labor, have submitted a
motion to approve their settlement which resolves the two citations remaining in Penalty Docket WEST 89-449-A. Pursuant to the
settlement reached, Respondent agrees to pay in full the $79 penalty originally assessed for Citation No. 3077183. As to Citation No. 307715, the parties agree that the violation described
therein is not "significant and substantial" and that the penalty
therefor should· thus be reduced from the original $98 to $50.
Based on approval of this agreement, Respondent withdraws its
contests in the two captioned contest proceedings. The settlement is reasonable and part of an overall settlement of many
dockets reached by these parties. Accordingly, it is APPROVED.

1736

Order
1.

Citation No. 3077175 is MODIFIED to delete the "significant
and substantial" designation thereon and is otherwise
APPROVED.

2.

Contestant/Respondent Energy Fuels shall pay to the Secretary
of Labor the total sum of $129 as and for the civil penalties
agreed on and here assessed within 30 days from the date
hereof.

3.

Contest Docket Nos. WEST 90-288-R and WEST 89-296-R are
DISMISSED.

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Phillip D. Barber, Esq., Johns. Cowan, Esq., ENERGY FUELS COAL,
1700 Broadway, Suite 1700, Denver, CO 80290-1701 (Certified
Mail)
Margaret A. Miller, Esq., Office of the ~olicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
co 80294 (Certified Mail)

/ek

1737

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

AUG 2 8 \990
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
C. W. MINING COMPANY,
Respondent

...
.
.
.
.

CIVIL PENALTY PROCEEDING
Docket No. WEST .90-79
A.C. No. 42-01697-03609
Docket No. WEST 90-94
A.C. 42-01697-03610
Bear canyon No. 1 Mine

DECISION
Appearances:

Before:

Robert J. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado, for
the Secretary of Labor (Secretary);
Carl E. Kingston, Esq., Salt Lake City, Utah,
for c.w. Mining Company (C.W.)

Judge Broderick

STATEMENT OF THE CASE
The Secretary seeks civil penalties for eight alleged
violations of mandatory health and safety standards promulgated
pursuant to the provisions of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seg. (the Act). Both parties
engaged in pretrial discovery. Pursuant to notice, the cases
were called for hearing on the merits on July 17, 1990, in Salt
Lake City, Utah. On the record, I ordered the cases CONSOLIDATED
for the purposes of hearing and decision. Counsel for the
Secretary stated that citation 3411629 would be vacated and that
the parties had agreed to a settlement with respect to citations
3077726 and 3412009.
I indicated on the record that I would
affirm the vacation of the citation mentioned above and would
approve the proposed settlement of the other two violations.
Donald E. Gibson and Terrance Dinkel testified on behalf of the
Secretary. Kenny Defa, Nathan Atwood, Gaylen Atwood and
Cyril Jackson testified on behalf of c.w. At the close of the
hearing, counsel for both parties waived their rights to file
post-hearing briefs, and each argued his case of the record. I
have considered the entire record and the contentions of the
parties and make the following decision.

1738

FINDINGS OF FACT

1. At all times pertinent hereto, c.w. was the owner and
operator of an underground coal mine in Emery County, Utah, known
as the Bear Canyon No. 1 Mine.
2. c.w. produced 211,438 tons of coal during the first nine
months of 1989. It is a medium sized operator.
3.

During the period from July 5, 1987 to July 4, 1989,

c.w. had 242 paid violations; during the period October 24, 1987
to October 23, 1989, it had 213 paid violations. Of these one
was a violation of 30 C.F.R. § 75.524, four were violations of 30
C.F.R. § 75.313, 17 were violations of 30 C.F.R. § 75.503 and 27
were violations of 30 C.F.R. § 75.400. I find that this history
is not such that penalties otherwise appropriate should be
increased because of it.
INNER ARCING OF SHUTTLE CARS

4. On August 23, 1989, Federal Coal Mine Inspector
Donald E. Gibson inspected the subject mine because ~SHA had
received a section 103(g) complaint that "arcing" existed when
shuttle cars touched the continuous miner.
5. When Inspector Gibson reached the section, the
continuous miner was outby the power center where repairs were
being performed. For that reason, he conducted his tests between
two shuttle cars, number 20 and number 21. The shift was an idle
shift and the cars were parked. He tested with a Hubble-Ensign
amp meter, clamping a lead to each car, the cars being between 12
and 24 inches apart. He asked the operator of car No. 20 to set
the parking brake and start the tram lever. This resulted in a
reading of 1.5 amps on the meter. Using the same procedures on
car No. 21, he found a reading of 1.2 amps. He verified these
readings using a "lock-on" amp meter. The same results were
found. Respondent's witnesses testified that the inspector did
not use the Hubble-Ensign amp meter but only used the lock-on amp
probe, which did not have an ohm resistor. I have no reason to
disbelieve the testimony of Inspector Gibson, and therefore on
this question, I accept it as factual.
6. The two shuttle cars involved here were the only cars
normally used on the section. They operated on separate
roadways, one tramming toward the miner to obtain a load of coal,
the other hauling a load of coal from the miner to the feeder
breaker and beltline. In the normal mining cycle, the two
shuttle cars do not contact each other. On one occasion in 1987
or 1988 when a new mine was being started, the two shuttle cars
were operated 11 piggy-back"--one car was loaded from the miner and
then transferred the load to the other car. This occurred
because the miner was a great distance from the feeder breaker.

1739

It has not been repeated. Although the shuttle cars do not
contact each other, each car regularly contacts the continuous
miner in the normal mining cycle.
7. No methane has ever been detected in the mine by a hand
held methane detector. Bottle samples taken April 6, 1988 showed
.04% methane. Samples taken February 22, 1989, showed .01 %
methane. The former would result in 24,000 CFM methane in a 24
hour period, the latter in 1500 CFM methane in a 24 hour period.
8. On August 23, 1989, Inspector Gibson issued two
citations alleging violations of 30 C.F.R. § 75.524 because the
current between the frames of the No. 20 and No. 21 Joy shuttle
cars exceeded one ampere.
(One citation was issued for each
shuttle car.) The inspector also issued a withdrawal order under
section 107(a) of the Act alleging that the conditions of the two
shuttle cars constituted an imminent danger. The withdrawal
order itself was not contested.
9. The withdrawal order was terminated on August 23, 1989,
when the shuttle cars were deenergized and removed from the
section. The citations were terminated on August 24, 1989, when
"the inner arcing on [each] machine was repaired."
METHANE MONITOR
10. At about 4:30 a.m., on November 16, 1989, a piece of
rib coal struck the methane monitor on the continuous mining
machine and knocked out the power to the miner. The miner
operator (also the section foreman on the graveyard shift)
bypassed the power to eliminate the monitor in order to back the
miner out to.a safer place. It was then about 5:30 a.m., and the
section foreman performed his preshift examination and called the
results outside. The miner was not tagged or locked out.
11. The preshift examination book did not note that the
methane monitor was inoperative or that miner was removed from
service.
12. Inspector Gibson arrived at the mine shortly after 5:30
a.m., on November 16, 1989, conferred with Kenneth Defa, c.w.•s
superintendent, and went underground a little before 7:00 a.m. to
perform an electrical spot inspection.
13. When the inspection party arrived on the section, the
continuous miner was energized and miners were servicing and
washing it.
It was located about two crosscuts inby the feeder
breaker. It had not been used to cut coal since it was moved
back at about 5:30 a.m.
14. Inspector Gibson ·checked the methane monitor and found
that it was not operating. He issued a citation for a violation

1740

of 30 C.F.R.· § 75.313. He cited the violation as significant and
substantial. No methane was detected at the time. The Inspector
believed that the condition created a hazard of an ignition or
explosion should the miner strike a pocket of methane and fail to
shut down.
15. After the citation was issued, Superintendent Defa
asked Inspector Gibson for permission to continue to use the
miner until the methane monitor could be replaced. Gibson told
him he could not give such permission. Defa denied that he made
such a request, but I accept Gibson's testimony that he did.
16. A new methane monitor was installed and the citation
was terminated on November 17, 1989.
PERMISSIBILITY

17. The same continuous miner had a loose headlight and an
opening in excess of .005 inch between the cover lid and the main
circuit breaker compartment.
18. Inspector Gibson issued a citation on November 16,
1989, for a violation of 30 C.F.R. § 75.503. He cited the
violation 'as significant and substantial.
19. The hazard posed by this condition was the possibility
of internal arcing within the control box which could escape to
the outside and cause an ignition. The miner was not cutting
coal, but was energized.
20. The conditions were corrected by securely fastening the
headlight to the frame of the machine and closing the opening in
the cover lid of the main circuit breaker compartment. The
citation was terminated November 17, 1989.
ACCUMULATIONS ON BOBCAT

21. On Novem15er 17, 1989, there were accumulations of coal
fines, pieces of coal and oil on the housing of a diesel bobcat
being operated on the West bleeder working section of the subject
mine. The oil and oil mixed with coal were on the top and both
sides of the motor. Coal and coal fines were on the bottom of
the motor.
22. Inspector Gibson issued a citation for the above
accumulations alleging a violation of 30 C.F.R. § 75.400. He
designated the violation as significant and substantial because
he believed they posed a fire hazard. He did not measure the
accumulations.
23. The bobcat had been cleaned about 10 hours prior to the
issuance of the citation. It was· scheduled to be cleaned again

1741

on the following shift in accordance with the company cleanup
program.
24. The bobcat was cleaned, the accumulations removed, and
the citation terminated in about 15 minutes.

REGULATIONS
30 c.F.R. § 75.524 provides as follows:
§ 75.524
Electric face equipment: electric equipment
used in return air outby the last open crosscut:
maximum level of alternating or direct electric current
between frames of equipment.

The maximum level of alternating or direct electric
current that exists between the frames of any two units
of electric face equipment that come in contact with
each other in the working places of a coal mine, or
between the frames of any two units of electric
equipment that come iri contact with each other in
return air outby the last open crosscut, shall not
exceed one ampere as determined from the voltage
measured across a 0.1 ohm resistor connected between
the frames of such equipment.
30 c.F.R. § 75.313 provides as follows:
§

75.313

Methane monitor.
[Statutory Provisions]

The Secretary or his authorized representative shall
require, as an additional device for detecting
concentrations of methane, that a methane monitor,
approved as reliable by the Secretary after March 30,
1970, be insta1led, when available, on any electric
face cutting equipment, continuous miner, longwall face
equipment, and loading machine, except that no monitor
shall be required to be installed on any such equipment
prior to the date on which such equipment is required
to be permissible under §§ 75.500, 75.501, and 75.504.
When installed on any ·such equipment, such monitor
shall be kept operative and properly maintained and
frequently tested as prescribed by the Secretary. The
sensing device of such monitor shall be installed as
close to the working fact as practicable. Such monitor
shall be set to deenergize automatically such equipment
when such monitor is not operating properly and to give
a warning automatically when the concentration of
methane reaches a maximum percentage determined by an
authorized representative of the Secretary which shall

1742

not be more than 1.0 volume per centrum of methane. An
authorized representative of the Secretary shall
require such monitor to deenergize automatically
equipment on which it is installed when the
concentration of methane reaches a maximum percentage
determined by such representative which shall not be
more than 2.0 volume per centrum of methane.
30 C.F.R. § 75.503 provides as follows:
§ 75.503
Permissible electric face equipment:
maintenance.

[Statutory Provisions]
The operator of each coal mine shall maintain in
permissible condition all electric face equipment
required by §§ 75.500,· 75.501, 75.504 to be permissible
which is taken into or used inby the last open crosscut
of any such mine.
30 C.F.R. § 75.400 provides as follows:
§

75.400

Accumulation of combustible materials.
[Statutory Provisions]

Coal dust, including float coal dust deposited on
rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to
accumulate in active workings, or on electric equipment
therein.
ISSUES

1. Whether the evidence establishes that the level of
electric current existing between the frames of two units of
electric face equipment that come in contact with each other in
the working places of the coal mine exceeded one ampere?
2. Whether the methane monitor on the continuous monitor
was kept operative and properly maintained?
3. Whether the continuous miner was maintained in a
permissible condition?
4. Whether coal dust and other combustible materials were
permitted to accumulate on the diesel bobcat?
5. Whether, if violations are established, they were
significant and substantial?

1743

CONCLUSIONS OF LAW

C.W. is subject to the provisions of the Act in the
operation of the Bear Canyon No. 1 Mine. I have jurisdiction
over the parties and subject matter of this proceeding. c.w. is
a medium sized operator and has an average history of prior
violations. All the violations involved in this proceeding were
abated promptly in good faith.
I.

INNER ARCING OF SHUTTLE CARS

30 c.F.R. § 75.524 provides that the maximum level of
electric current existing between the frames of any two units of
electric face equipment that come in contact with each other in
the· working places or in return air outby the last open crosscut
shall not exceed one ampere. The inspector tested two shuttle
cars and found the current to exceed one ampere in each car. The
evidence, however, does not establish that these shuttle cars
come in contact with each other, either in the working places, or
in return air outby the last open crosscut. Each shuttle car
regularly comes in contact with the continuous miner, and the
inspector speculated that arcing would occur between each car and
the miner, but he did not test them. I conclude that the
Secretary has not carried her burden of proving the two
violations charged in citations 3411949 and 3411950.
II.

METHANE MONITOR

The methane monitor on the continuous monitor was admittedly
inoperative. The miner had been pulled back from the face
because the monitor had been damaged. The question is whether it
was withdrawn from service. It was not deenergized when
Inspector Gibson observed it. The methane monitor problem had
not been noted in the preshift book (though the condition had
been orally reported by the graveyard shift foreman). The miner
was not tagged or locked out. Most significantly, C.W.'s
superintendent asked the inspector for permission to continue to
use the miner. Therefore, I conclude that the methane monitor on
the continuous miner was not kept operative or properly
maintained.
I reject c.w.•s contention that the methane monitor
violation is a permissibility violation, and must be included as
part of the citation alleging other permissibility violations.
The failure to remove a continuous miner from service when
its-methane monitor is inoperative is a very serious violation.
Such a violation is likely to result in serious in]ury. This is
true even though methane has not been detected by a methane
detector in this mine. As Inspector Gibson stated, methane is
liberated in the cutting of coal, and even a small amount of
methane can cause an ignition. It was properly cited as
significant and substantial. Cf. Mathies Coal Company, 6 FMSHRC
1 (1984).

1744

III.

PERMISSIBILITY

c.w. does not seriously contest the alleged permissibility
violations but argues that they were minimal. The headlight was
loose: there was an opening in the main circuit breaker
compartment of the miner. I conclude that a violation of the
permissibility standard was established. The Secretary has
failed to establish that the violation was significant and
substantial. There is no evidence that it would be reasonably
likely to result in injury.
IV.

ACCUMULATIONS ON BOBCAT

c.w. argues that the accumulations on the bobcat constituted
simply a film and that c.w. follows a regular cleanup program.
Inspector Gibson testified that motor oil had leaked from the
valve cover pan down on the sides of the motor. He testified
that coal fines and loose coal were caked on the sides of the
motor. I conclude that c.w. permitted coal dust, loose coai and
other combustible material to accumulate on the bobcat. The fact
that it was following a cleanup plan does not defeat a citation
for accumulations of combu~tible materials. Utah Power & Light
Co., 12 FMSHRC 965 (1990). The bobcat motor was hot to the
touch. The accumulations were reasonably likely to ignite.
The bobcat was parked behind the feeder breaker. Should a fire
break out, it would cause smoke or flame to go inby toward the
face. The violation was significant and substantial.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citation 3411629 is VACATED.

2.

Citations_3411949 and 3411950 are VACATED.

3.

Citations 3077726 and 3412009 are AFFIRMED.

4. Citations 3412281 and 3412288 are AFFIRMED including the
designation of the violations as significant and substantial.
5. Citation 3412282 is modified to eliminate the
designation of significant and substantial and, as modified, is
AFFIRMED.
6. c.w. Mining shall within 30 days of the date of this
decision pay the following civil penalties for the violations
found.herein:
CITATION

30 C.F.R.

1745

PENALTY

3077726
3412009
3412281
3412282
3412288

48.9(a)
75.400
75.313
75.503
75.400

$ 250.00
178.00
400.00
50.00
300.00
$1178.00

!:

/l,UL~ .A/Jv?:Jck%~

James A. Broderick
Administrative Law Judge

Distribution:

Robert J. Murphy, Esq., U.S. Department of Labor, Office of the
Solicitor, 1585 F.O.B., 1961 Stout Street, Denver, co 80294
(Certified Mail)
Carl E. Kingston, Esq., 53 West Angelo Avenue, P.O. Box 15809,
Salt Lake City, UT 84115 (Certified Mail)
slk

1746

ADMINISTRATIVE LAW JUDGE ORDERS

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

·103-756-6232
August 14, 1990

CONTEST PROCEEDING

BETH ENERGY MINES, INC.,
Contestant

v.

Docket No. PENN 90-208-R
Citation No. 3099484; 6/20/90

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

Mine No. 84
Mine ID No. 36-00958

ORDER DENYING MOTION FOR CONTINUANCE
This proceeding concerns a Notice of Contest filed by the
contestant pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977, challenging a section 104(a) "S&S"
Citation No. 3099484, charging it with an alleged violation of
mandatory safety standard 30 C.F.R. § 75.511. The contestant has
initiated discovery pursuant to Commission Rules 55 and 57,
29 C.F.R. § 2700.55 and-2700.57, and has filed interrogatories
and requests for production of documents on the respondent.
The respondent has filed an answer and a motion for a
continuance pending the filing of its companion civil penalty
assessment proceeding. By letter dated July 31, 1990, and
received on August 2, 1990, the contestant objects to any
continuance of the matter. In support of its objection, the
contestant states that while it has not requested an expedited
hearing, it belieyes that "the matter should move forward in the
normal course without delay" because the issue presented by its
contest (the necessary qualifications for a miner to un~ouple
deenergized high voltage cable) arises with some frequency and
that a delay in resolving this issue would be inappropriate. The
respondent has not responded to the contestant's objections for a
continuance.
ORDER
The respondent's motion for a continuance IS DENIED, and the
matter will be scheduled for a hearing on the merits in the near
future.
However, in view of the presiding judge's current trial
docket, a hearing is not likely to be scheduled until sometime
after January, 1991. Under the circumstances, the respondent

1747

should have ample time to file lts civil penalty proceeding and
file a request for a consolidation of the cases. In the
meantime, the respondent IS ORDERED to timely respond to the
contestant's discovery requests.

Distribution:
R. Henry Moore, Esq., Buchanan Ingersoll, USX Tower, 57th Floor,
600 Grant Street, Pittsburgh, PA 15219 (Certified Mail)
Kenneth L. Stein, Esq., Office of the Solicitor, U.S. Department
of Labor, Room 14480 Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
/fb

1748

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

AUG 2=0 1980
ODELL MAGGARD,
Complainant

.

DISCRIMINATION PROCEEDING

:

v.

.
CHANEY CREEK COAL CORPORATION,:
Respondent
:
..
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINSITRATION, (MSHA),
...
Complainant
.
v.
:
DOLLAR BRANCH COAL CORPORATION:
and
:
CHANEY CREEK COAL CORPORATION,:
Respondents
:

Docket No. KENT 86-1-D
MSHA Case No. BARB CD 85-48

DISCRIMINATION PROCEEDING
Docket No. KENT 86-51-D
MSHA Case No. BARB DC 85-48
Dollar Branch Mine

DECISION AND ORDER
Appearances:

Before:

Tony Oppegard, Esq., Appalachian Research &
Defense Fund of Kentucky, Hazard, Kentucky for
Complainant Maggard;
Joseph B. Luckett, Esq., Office of the
Solicitor, U.S. Department of Labor, Nashville,
Tennessee for the Secretary of Labor;
No Appearance on behalf of Respondents.

Judge Melick

These cases are before me following the Commission
remand order dated March 27, 1990, and as supplemented on
June 5, 1990. Hearings on remand were held on August 9,
1990, at which no representative of Respondents appeared.
Accordingly they are deemed to have waived their rights to a
hearing on the remand issues and to their right to
objections thereat.
Complainant Maggard seeks additional attorney fees and
expenses totalling $56,957.55 for work performed during
appellate proceedings and recalculated interest of $4,246.84.
The unopposed petitions are legally and factually supported
and are accordingly granted.

1749

This is not a final decision and will not become final
until completion of discovery and determination by
Complainant Maggard of whether or not he will file a motion
to join Mr. John Chaney in these proceedings under an alter
ego theory of liability. Discovery on this issue must be
completed on or before October 12, 1990, and qny motion to
join John Chaney as an individua must be fil 'd within 10
days thereaft~r.
'

~
/\ "
:~t~:~h~i~~l;;, 'udg~'~''
I

Distribution:

CCert~fied

Tony Oppegard, Esq., Appalachian Rel earch & D fense Fund o:·
Kentucky, Inc., P.O. Box 360, Hazart, KY 41701
Mail)
Mr. John Chaney, Chaney Creek Coal Corporation, Rt. 1, Box
286, East Bernstadt, KY 40729 (Certified Mail)
Joseph B. Luckett, Esq., Office of the Solicitor, U.S.
Department of Labor, 2002 Richard Jones Road, Suite B-201·,
Nashville, TN 37215 (Certified Mail)
nb

1750