MARCH 1984

Connnission Decisions
3-07-84
3-07-84
3-30-84

James Eldridge v. Sunfire Coal Company
Patrick Mooney v. Sohio Western Mining Co.
MSHA for John Cooley v. Ottawa Silica Co.

KENT 82-41-D
CENT 81-157-DM
LAKE 81-163-DM

Pg. 509
Pg. 510
Pg. 516

WEVA 83-277
PENN 83-200-R
WEST 80-217-M
WEST 83-73
WEST 83-95-DM
KENT 80-354
KENT 83-257-D
KENT 79-366-D
WEST 83-22-~
WEVA 82-399-D
SE
83-44
KENT 84-24
WEST 82-191-M
CENT 81-42-M
CENT 83-9
PENN 82-311
KENT 83-132
KENT 83-244
WEVA 81-498
WEVA 84-60-R
WEST 81-236-M
WEST 83-122-D
YORK 83-3-D
KENT 83-181-R
WEST 80-293-M

Pg. 527
Pg. 529
Pg. 592
Pg. 612
Pg. 628
Pg. 630
Pg. 632
Pg. 636
Pg. 692
Pg. 694
Pg. 699
Pg. 701
Pg. 704
Pg. 709
Pg. 721
Pg. 722
Pg. 731
Pg. 733
Pg. 735
Pg. 748
Pg. 756
Pg. 778
Pg. 780
Pg. 781
Pg. 788

Administrative Law Judge Decisions
3-01-84
3-06-84
3-06-84
3-06-84
3-06-84
3-07-84
3-08-84
3-13-84
3-13-84
3-14-84
3-16-84
3-19-84
3-20-84
3-22-84
3-22-84
3-22-84
3-23-84
3-23-84
3-23-84
3-23-84
3-27-84
3-28-84
3-29--84
3-30-84
3-30-84

MSHA v. Robert G. Miller
Helen Mining Company
Allied Chemical Corporation
Peabody Coal Company
MSHA for Douglas Burke v. Brown & Root, Inc.
Martin County Coal Corporation
Lonnie Jones v. Mingo Coal Co., Inc.
Elias Moses v. Whitley Development Corp.
Ramah Mines Company
Eddie Lee Sharp v. Magic Sewell Coal Co.
Alabama By-Products Corporation
Shamrock Coal Company, Inc.
MSHA v. Kenneth Denson
Homestake Mining Company
Turner Brothers, Inc.
U.S. Steel Mining Co., Inc.
Riverway North, Inc.
Kentucky Blue Coal Company, Inc.
Little-J Coal Company, Inc.
Kitt Energy Corporation
Phelps Dodge Corporation & USWA
David L. Williams v. Southern Utah Fuel Co.
Ralph Fitzwater v. Mettiki Coal Corp.
Pontiki Coal Corporation
Scoria Products Branch, Ultro, Inc.

MARCH
The following case was Directed for Review during the month of March:
Kenneth Wiggins v. Eastern Associated Coal Corporation, Docket No.
WEVA 82-300-D. (Judge Moore, February 16, 1984)
Review was Denied in the following case during the month of March:
Bobby Holt v. Southern Stone Company, Docket No. SE 83-49-DM. (Judge
Broderick, February 17, 1984)
Request for Review was withdrawn in the following case during March:
Secretary of Labor, MSHA v. Mich Coal Company, Docket No. CENT 83-4.
(Judge Kennedy, Interlocutory Review of January 30, 1984 Order)

COMMISSION DECISIONS

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

March 7, 1984
JAMES ELDRIDGE

v.

Docket No. KENT 82-41-D

SUNFIRE COAL COMPANY
ORDER
This discrimination case arises under section 105(c) of the Federal
Mine Safety and Health Act, 30 u.s.c. § 801 et~ (1976 & Supp V 1981).
The oral argument in this proceeding, originally scheduled for February 29,
1984, was postponed upon notification by the parties that they had agreed
to settle the case and would file a motion to dismiss.
On February 24, 1984, the parties filed with the Commission a joint
motion to withdraw their cross-petitions for discretionary review and to
dismiss the case. In support of the motion, the parties attached a copy
of their signed settlement agreement, dated February 21, 1984. The agreement, which is signed by the complaining miner, provides that Sunfire Coal
Company will pay "as soon as possible" the sum of $25,341 in back pay wages
to the complaining miner and the sum of $25,000 in attorneys' fees to the
miner's attorneys.

In light of the parties' settlement agreement, we grant the parties' joint
motion to withdraw their petitions for discretionary review. Payment of the
sums specified in the settlement agreement shall be made within 30 days of
issuance of this order. Accordingly, this case is dismissed. This is the
final decision of the Commission in ~ proceedin~

/Jii;,-

ose~ollyer, Chairman

L. Clair Nelson, Commissioner

509

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

March 7, 1984
PATRICK.J. MOONEY
v.

Docket No. CENT 81-157-DM

SOHIO WESTERN MINING COMPANY
DECISION
This case involves a discrimination complaint brought by Patrick J.
Mooney against Sohio Western Mining Company (Sohio) pursuant to the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1976 & Supp. V 1981). At issue is whether Sohio's discharge-of Mooney
on September 9, 1980, violated section 105(c)(l) of the Mine Act, 30
U.S.C. § 815(c)(l)(Supp V 1981). Following a hearing on the merits, the
Commission's administrative law judge determined that Sohio did not
violate section lOS(c)(l) and dismissed Mooney's complaint. 4 FMSHRC
440 (March 1982)(ALJ). For the reasons that follow, we affirm the
judge's decision.
Mooney was employed as an underground laborer by Sohio at its J.J.
No. 1 uranium mine from February 5, 1980, until September 9, 1980, when
he was discharged. During most of this period, however, Mooney was
disabled and received worker's compensation as a result of a workplace
injury that occurred on April 10, 1980. On that date Mooney was injured
while he and his partner, Donald Benton, were standing in the elevated
bucket of a front-end loader installing ground support. Mooney's
left foot was broken when a slab of rock fell from the crown, that part
of the drift where the rib meets the back. The rock fall and injury
occurred in a large area that Sohio was excavating to serve as an underground maintenance shop. Earlier in the shift Mooney had refused an
assignment requiring him to climb a ladder underneath a shale bulge in
this area.
Mooney was unable to work as a result of his injury from April 10
until September 2, 1980, when he reported for duty. Mooney brought to
the mine a statement from his doctor that he was ready for regular duty.
In accordance with normal company practice, Mooney met with Sohio's
safety director, Rudolph Siegmann, when he returned to duty. Mooney
complained to Siegmann that accident reports filed concerning his injury

5lQ

omitted the name of, or any information from, the other miner in the
bucket when the injury occurred and failed to state that the area had
not been properly supported. These omissions, in Mooney's view, denied
him a 10 percent increase in worker's compensation benefits allegedly
payable under the applicable state worker's compensation statute if an
employer's failure to use safety equipment results in injury to an
employee. Mooney informed Siegmann that he would pursue the matter further.
After this meeting Mooney was assigned to a surface job digging ditches,
because he did not have safety glasses and could not go underground. The next
morning Mooney called the mine to report that he would not be reporting for
work because his foot hurt. Mooney made an unsuccessful attempt to see his
doctor that day. The following day, September 4, 1980, Mooney returned to
work and, because he did not have a note from his doctor, was given a
warning and 3-day suspension. On two earlier occasions, February 28 and
Uarch 7, 1980, Mooney had presented a doctor's note after being absent
from work for one day. He had also received a warning slip on April 3,
1980, for failing to furnish a doctor's note after being absent April 2nd.
The warning Mooney received September 4th stated that a third warning would
result in termination. Mooney's suspension period included a weekend, so
that he next reported to work on September 9th. Mooney arrived 10 to 15
minutes late on that date, was given a third warning and was terminated.
On October 15, 1980, Mooney filed a written complaint of discrimination with the Department of Labor's Mine Safety and Health Administration (MSHA). See 30 U.S.C. § 815(c)(2). MSHA investigated the
complaint but determined that Mooney had not been discriminated against
in violation of the Mine Act. Proceeding~~' Mooney thereafter
filed a complaint with this independent Commission. 30 U.S.C. § 815(c)(3).
In his decision the Commission administrative law judge concluded
that Sohio's discharge of Mooney did not violate section 105(c). The
judge began his analysis by considering whether Mooney established his
participation in protected activity. With regard to Mooney's allegation
that on April 10, 1980, he had refused to climb a ladder under a shale
bulge, the judge stated that this action "would be protected under the
Act if it were shown that such refusal to work prompted his firing." 4
FMSHRC at 443. _Concerning Mooney's complaints to the operator in
September 1980 regarding the alleged filing of inaccurate accident reports,
the judge stated: "If these complaints were motivated by a sincere belief
by Mooney that such matters were related to safety and health conditions
in the mine, it would constitute protected activity." 4 FMSHRC at 444.
The judge found, however, that Mooney was concerned because he had not
received an additional amount in workers' compensation payments that he
believed he was due under state law, purportedly as a result of the
operator's alleged filing of erroneous accident reports. According to the
judge, because Mooney's complaints were "motivated by monetary reasons rather
than safety and health", these complaints were not protected under the Mine
Act. Id. The judge further found that Sohio had established that it had
Legitimate reasons for terminating Mooney based on violations of company policy
concerning time and attendance.

511

On review, Mooney contends that the judge erred in concluding that
illegal discrimination had not occurred. He argues first that the judge
erred in determining that his complaints to the operator concerning the
alleged filing of false accident reports were not protected because
Mooney's motive for complaining was monetary. He maintains that he was
injured in an accident occurring at Sohio's mine; the Act requires
accurate reporting of such accidents; in his view Sohio did not accurately
describe the accident in its reports; this alleged inaccurate reporting
constitutes a violation of the Act; and, therefore, his complaints
concerning this alleged violation were protected regardless of his
personal motivation for making the complaints. Mooney's second argument
is that the operator improperly determined that he had violated the
company's time and attendance requirements, and, therefore, that he was
"unjustly terminated." Mooney submits that under proper application of
company attendance policies no cause for termination was present.
Although we agree with the administrative law judge's ultimate
conclusion, we find it necessary to modify in certain aspects the rationale
he utilized to support his conclusion.
In order to establish a prima facie case of discrimination under
section lOS(c) of the Mine Act, a complainant bears the burden of production and proof to show (1) that he engaged in protected activity and
(2) that an adverse action against him was motivated in any part
by the protected activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786 .(October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co. v. t1arshall, 663 F.2d 1211 (3d Cir. 1981), and
Secretary on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803
(April 1981). In order to rebut a prima facie case, an operator must
show either that no protected activity occurred or that the adverse
action was in no part motivated by protected activity. If an operator
cannot rebut the prima facie case in this manner, it may nevertheless
affirmatively defend by proving that (1) it was also motivated by the
miner's unprotected activities, and (2) that it would have taken the
adverse action in any event for the unprotected activities alone~ 'Ille
operator bears a burden of proof with regard to the affirmative defense.
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1937 (November 1982). 'Ille
ultimate burden of persuasion that illegal discrimination has occurred
does not shift from the complainant. Secretarv on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC at 818 n. 20. 'Ille Supreme Court recently
approved the National Labor Relations Board's virtually identical analysis
for discrimination cases arising under the National Labor Relations Act.
NLRB v. Transportation Management Corp., 76 L.Ed. 2d 667 (1983). See also
Boich v. FMSHRC, 719 F.2d 194 (6th Cir. 1983)(approving the Commission-rs-Pasula-Robinette test).
The judge's decision is unclear as to whether he concluded that Mooney
established a prima facie case of unlawful discrimination. At the hearing,
at the close of Mooney's presentation of his case-in-chief, the judge
denied Sohio's motion to dismiss stating: "I feel that the complainant
has made a prima facie case and that its [sic] up to respondent to rebut
this." Tr. 107. In his final written decision, however, he found that
Mooney had not established a prirna facie case (4 FMSHRC at 446) while
also concluding that Sohio had "successfully defended." 4 FMSHRC at
445.

512

Despite these conflicting findings, viewing them in context we are ·
satisfied that the judge intended the following: As to Mooney's refusal to
work under the shale bulge on April 10, 1980, the judge believed that Mooney
had established the first element of a prima facie case, but not the second,
i.e., the work refusal was protected but Mooney's discharge was not motivated
by this incident. As to Mooney's complaints upon his return to work in
September 1980 regarding Sohio's alleged filing of false accident reports,
the judge believed that the firs't element of a prima facie case had not
been established, i.e., he believed that Mooney's complaints did not
constitute protected activity because they were motivated by monetary
rather than safety and health concerns.
On review Mooney does not take issue with the judge's finding that the
shale bulge incident did not motivate the operator in its discharge of Mooney.
Therefore, we need not review this aspect of the judge's decision. 30 U.S.C.
§ 823(d)(2)(A)(iii). However, the judge inappropriately hinged his
determination of whether Mooney engaged in any protected activity on whether
an adverse action resulted. Protected activity under the Act does not gain
or lose protected status dependent upon whether an adverse action resulted.
We believe, however, that the judge was simply trying to state with regard to
the incident in April 1980, that Mooney's work refusal did not motivate the
operator to discharge him in September 1980. To this effect the judge stated
that Mooney's "concerns in this matter were apparently accepted as valid and
another employee was assigned to perform the task," and the "firing occurred
approximately five months later and the ladder incident alone would seem
rather remote." Id. 4 FMSHRC at 443.
We also find it unnecessary to address whether the judge erred in
determining that Mooney's complaints upon his return to work were not
protected simply because of their monetary basis. Even if we assume
arguendo that Mooney's complaints were protected by the Mine Act,
we conclude that the record amply supports the judge's conclusion that
Sohio, whether in rebuttal or defense, successfully overcame Mooney's
case and established that i t terminated Mooney for legitimate business
reasons. In this regard, the judge made the following relevant findings
of fact. On two occasions shortly after the start of his employment and
prior to his injury, Mooney was absent from work for one day for medical
reasons and upon his return to work on each occasion he provided a
doctor's note. (Findings of Fact Nos. 3 and 4; 4 FMSHRC at 441). On a
third occasion prior to his injury, Mooney was absent for one day due to
illness, but failed to provide a doctor's note upon his return. Mooney
was given a written warning for this failure. (Finding of Fact No. 5;
Id). The 'day after his return to work from disability Mooney was absent
for one day for medical reasons, returned to work without a doctor's
note, was given a second written warning and 3-day suspension, and
was notified in writing that a third warning would result in termination.
(Finding of Fact No. 13; 4 FMSHRC at 442). On the next day that he was
scheduled to work, Mooney arrived late, was given a third warning and
thus was terminated. (Finding of Fact No. 14; Id.).

Under the Mine Act, an administrative law judge's findings of fact are
to be affirmed if they are supported by substantial evidence. 30 U.S.C.
§ 823(d)(2)(A)(ii)(I). The evidence supporting the above findings is
not only substantial, it is largely uncontroverted. The judge further
found that Sohio had established that it terminated Mooney for legitimate
business reasons pertaining to Mooney's repeated violations of the
operator's time and attendance policies; that Mooney was aware of these
policies; and that the policies had been applied to Mooney consistently
from the beginning of his employment and prior to his engaging in any
protected activity. 4 FMSHRC at 444-45. Although Mooney argues for a
different result and requests that contrary inferences be drawn from the
circumstances surrounding his termination, on this record progressive
discipline was established and we cannot say that the finding o.f the
judge concerning the operator's motivation is not supported by substantial
evidence or is otherwise contrary to law. J:./
Accordingly, the judge's decision finding that Sohio's discharge of
Mooney did not violate section 105(c) of the Mine Act is affirmed insofar
as it is consistent with this decision.

Chairman

L. Clair Nelson, Commissioner

J:./

Our affirmance of the judge's conclusion that Mooney was discharged
in conformity with company policy is not, as Mooney argues, inconsistent
with a decision of an appeals referee of the State of New Mexico's Employment Security Department. Exh. C-4. In that decision, the appeals referee
found that· the written policy at the mine required a doctor's note after
an absence of two days. That decision also indicated, however, that a
different policy requiring a note for one day's absence pertained in
Mooney's section. For purposes of awarding state unemployment compensation,
the referee held that Sohio's written policy controlled, and, therefore,
that Mooney had not been discharged for "i!tisconduct" and was entitled
to state unemployment benefits. The question presented under the Mine Act
is not the same. Because the administrative law judge's conclusion that
Mooney legitimately was discharged for violation of the mine operator's
time and attendance policies, rather than for reasons protected by the
Mine Act, is supported by substantial evidence, it must be affirmed.

514

Distribution
Patrick J. Mooney
2312 Alvarado NE
Albuquerque, New Mexico

87110

Derwood H. Rusher, II, Esq.
Sohio Western Mining Company
125 South Wacker Drive
Chicago, Illinois 60606
Robert Araujo, Esq.
Sohio Western Mining Company
69 West Washington Street, Suite 700
Chicago, Illinois 60602
Administrative Law Judge Virgil Vail
Federal Mine Safety & Health Review Commission
333 West Colfax Ave., Suite 400
Denver, Colorado 80204

515

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

March 30, 1984

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MsHA)
on behalf of John Cooley

Docket No. LAKE 81-163-DM

v.
OTTAWA SILICA COMPANY
DECISION
This discrimination case arises under section 105(c) of the Federal
Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seg. (1976 &
Supp. V 1981), and involves a miner's discharge for refusing to perform
an allegedly dangerous task. The Commission's administrative law judge
held that the miner's work refusal was protected and that his discharge,
by Ottawa Silica Company ("Ottawa") violated the Mine Act. The judge ·
ordered reinstatement with back pay and benefits, without interest. The
judge also denied, without prejudice, the Secretary of Labor's request
for assessment of a civil penalty in this proceeding. 4 FMSHRC 1013
(June 1982)(ALJ). For the reasons that follow, we affirm the judge's
finding of a violation and his severance of the civil penalty proceeding.
However, we vacate the judge's back pay and benefits award and remand
for a recomputation of the amount due the complainant.
Ottawa mines and processes silica sand at its Michigan Division
Quarry, where the events at issue occurred. The operation involves the
drying of wet sand in a large natural gas-fired.dryer. The dryer has an
electric spark plug that ignites the pilot light. The pilot ignites the
flame of the main burner. These operations are usually performed from a
control panel located approximately ten feet from the ignition area. At
times, during 1979 and 1980, difficulties in lighting the dryer occurred
when the electric spark plug failed to ignite the pilot light. On these
occasions, the pilot was ignited manually.
Manual lighting required two people, one at the control panel and
another who would hold a piece of burning paper to the pilot. To light
the pilot a worker would climb eight feet above the floor to a metal
walkway which surrounded the dryer. The pilot was 54 inches away from

516

the closest vantage point on the walkway. There was an opening between
the pilot and this point on the walkway called a floor-hole, which was
two feet wide. In order to reach the pilot a worker had to lean or
climb over the guardrail on the walkway. Then, while reaching over the
floor-hole, the worker would touch the burning paper to the pilot.
John Cooley, the complainant, had been employed by Ottawa as a
laborer for eighteen months prior to his discharge in May 1980. During
his employment with Ottawa, Cooley had a history of absenteeism, work
refusals, and insubordination, and was nearing the conclusion of a oneyear disciplinary probation when he was discharged. As noted above, at
the time in question, the pilot light on the dryer did not always ignite
automatically. When this occurred, a second worker, usually a laborer,
was called to assist the dryer operator by igniting the pilot with
burning paper. Cooley testified that he had been instructed in this
method by two supervisors, including David Chalmers, his foreman at the
time of his discharge. Cooley had been directed to ignite the pilot
manually on over 30 occasions. Cooley testified that he complained
throughout this period to his foreman, as well as to the dryer operators,
that this was an unsafe procedure.
Cooley eventually bid on the job of dryer operator. When Cooley
won the bid on the dryer, he was assigned a five-day training period in
April 1980, with an experienced operator, Marvin Phelps. During his
training the pilot had to be ignited manually on several occasions.
Cooley was again assigned to light the pilot with burning paper, while
Phelps worked the control panel. On every occasion Cooley complained to
Phelps that the manual lighting procedure was unsafe.
On Friday, May 2, 1980, the last day of Cooley's five-day training
period, the dryer was down when the shift started. Shortly before
lunch, Cooley had to manually light the pilot. He testified that in
doing so, he singed the hair on the knuckles of his right hand. He was
very angry and wanted to confront management. He testified that he
calmed himself down, realizing that he was on probation. He decided,
however, that he would not manually light the pilot again. Under
Ottawa's collective bargaining agreement with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and ·Helpers of America,
Cooley was permitted to withdraw his bid during the training period.
Because of his general dissatisfaction with the dryer operator's job,
Cooley voluntarily withdrew his bid. Cooley so informed Chalmers, who
agreed. Cooley told Chalmers he would return to working as/a laborer
after lunch.
Later that day, after having returned to his work as a laborer,
Cooley was in the lunchroom when he received a telephone call from
Chalmers, who told him to manually light the pilot on the dryer. Cooley
testified that he innnediately cursed. Cooley told Chalmers, however,
that he was not cursing at him but that he would not light the pilot.
He also said that if that were the proper way to light the pilot, the
dryer would have been supplied with "a carton of matches and a bale of
paper." Cooley reiterated this position in the face of renewed demands
by Chalmers, who reminded him that he was still on probation. Chalmers
then told Cooley to meet him at his office but Cooley replied that he
would be in the lunchroom.

517

Chalmers· met Cooley in the lunchroom and again ordered him to light
the dryer manually. After a brief exchange, Chalmers stated that he did
not want to hear Cooley's explanation and ordered Cooley off company
property. Before leaving, Cooley met with his union steward, Kenneth
Stumpmier, a former dryer operator. Cooley told Stumpmier that he was
being sent home because of his refusal to light the pilot for safety
reasons. Stumpmier attempted to talk to Chalmers about Cooley's work
refusal after Cooley left but Chalmers refused to discuss the matter.
On Monday, May 5, 1980, Hilliard Bentgen, Ottawa's Industrial
Relations Supervisor, discussed Cooley's behavior with Chalmers. Under
Ottawa's personnel policies only Bentgen had authority to discharge an
employee. Bentgen also met with Cooley and Stumpmier and discussed
Cooley's safety concerns. In response to an inquiry by Bentgen,
Stumpmier stated that he also would not light the pilot manually because
it was unsafe to do so.
Bentgen discharged Cooley by letter dated May 6, 1980. The letter
explained that Cooley was discharged because of his previous disciplinary
problems, his refusal to follow the instructions of Chalmers, and his
use of foul and abusive language in speaking with Chalmers.
In his decision, the Commission's administrative law judge concluded that Cooley engaged in a protected work refusal. The judge
determined that Cooley had a good faith, reasonable belief that manually
lighting the dryer was unsafe and exposed him to possible injury. The
judge also found that the practice of lighting the pilot with a burning
piece of paper was, in fact, unsafe. He rejected Ottawa's contention
that Cooley communicated his safety concerns only after his refusal to
work and concluded that Cooley had consistently complained that the
procedure was unsafe. The judge noted that it was uncontested that
Cooley's concerns were clearly expressed to Bentgen before Bentgen's
decision to discharge. He held that the communication made by Cooley
regarding his safety concerns fell within the test enunciated in
Secretary on behalf of Dunmire and Estle v. Northern Coal Co., 4 FMSHRC
126 (February 1982).
Finally, the judge rejected Ottawa's contention that Cooley was
discharged because of his profanity toward his supervisor. First, he
held that Cooley's use of profanity was part of the protected work
refusal. Second, he held that the "[t]estimony and evidence adduced •••
[did] not support a conclusion that the respondent would have fired Mr.
Cooley for the manner in which he communicated his work refusal to his
supervisor." 4 FMSHRC at 1048. The judge noted the absence of evidence
that Cooley or any other employee had ever been disciplined for using
profanity. He also noted testimony that Cooley's "cursing" was directed
at the method of lighting the dryer, not at Chalmers, and that Ottawa's
assertions that Cooley used "vile," "foul," and "abusive" language were
based on Chalmers' report to Bentgen. Chalmers, who had been discharged
for poor work performance, did not testify at the trial below. The
judge, therefore, held that Cooley's discharge violated the Mine Act.

518

Under the analytical guidelines established in Secretary on
behalf of Pasula v. Consolidation Coal Corp., 2 FMSHRC 2786 (October
1980), rev'd on other grounds sub !!.2!!!· Consolidation Coal Corp. v.
Marshall, 663 F.2d 1211 (3d Cir. 1981), and Secretary on behalf of
Robinette v. United Castle Coal Company, 3 FMSHRC 803 (April 1981), a
prima facie case of discrimination is established if a miner proves by
a preponderance of the evidence that (1) he engaged in protected activity
and (2) the adverse action against him was motivated in any part by that
protected activity. If a prima facie case is established, the operator
may defend affirmatively by proving that the miner would have been
subject to the adverse action in any event because of his unprotected
conduct alone. See NLRB v. Transportation Management Corp.,~- U.S.
~' 76 L.Ed.2d 667 (1983).
As explained in Robinette, a work refusal is protected under section
105(c) only when the miner has a good faith, reasonable belief in a
hazardous condition. Good faith in this context simply means an honest
belief that the hazard exists. Accompanying the good faith requirement
is the additional requirement that the belief in a hazard be a reasonable one under the circumstances. Good faith and reasonableness may be
determined by evaluating all the evidence for detail, inherent logic and
overall credibility. Robinette, 3 FMSHRC at 807-12.
Ottawa challenges the judge's finding that Cooley had a reasonable
belief that lighting the dryer manually was hazardous. Substantial
evidence supports the judge's conclusion that Cooley's belief in this
hazard was reasonable. The judge concluded that Cooley singed his hand
and that this incident verified for Cooley his concerns over the manual
lighting. The other dryer operators, while personally unconcerned with
the danger, nonetheless respected Cooley's belief concerning the danger
of the lighting procedure and did not find his reluctance unreasonable.
Further, while there is no requirement that the reasonableness of Cooley's
belief be verified objectively (Robinette, 3 FMSHRC at 811-12), the
judge concluded that the practice was in fact unsafe, and substantial
evidence supports that determination. We conclude that nothing in the
record warrants reversal of the judge's conclusion that Cooley's belief
in the hazard was reasonable.
Ottawa also challenges the judge's finding on good faith. Substantial
evidence supports the judge's finding that Cooley acted in good faith.
The judge acknowledged Cooley's troubled work history, short temper and
lack of self-restraint, but found him to be a credible witness. 4
FMSHRC at 1045. The record is replete with references to Cooley's
concerns over lighting the pilot manually, including complaints to
Chalmers. It was the singing of Cooley's hand that prompted him to vow
not to perform the task again. In the final analysis, the judge's
finding that Cooley possessed a good faith belief in the hazard is based
essentially on credibility resolutions, and we discern nothing in the
record warranting reversal of that resolution.

5,19

Ottawa also asserts that Cooley did not communicate the safety
related basis for his work refusal to his employer on a timely basis, as
required by ·Dunmire and Estle. While Dunmire and Estle states a preference
for contemporaneous communication, it also contemplates a reasonable
attempt to communicate even after the work refusal, if the circumstances
so warrant. 4 FMSHRC at 133. Ottawa's position ignores the effect of
Chalmers' actions. The testimony is uncontroverted that when Chalmers
and Cooley met in the lunchroom, moments after Cooley's initial refusal
over the telephone, Cooley attempted to raise the safety of the procedure
as a concern. Chalmers refused to listen, saying "I don't care. I
don't care. I don't care. I want you off the property." Tr. 31.
Chalmers' refusal to consider the reason for Cooley's actions was compounded by Chalmers' subsequent refusal to discuss Cooley's safety
concerns with Stumpmier, the union steward. With the contemporaneous
attempts to communicate made futile, the discussion with Bentgen on
Monday, May 5, was the first opportunity for Cooley to present his
concerns clearly.
Ottawa has continually argued that Cooley concocted his safety
concern over the weekend to save his job. However, the judge found that
Cooley's history of complaints about the manual lighting procedure to
his foreman and other dryer operators, including complaints during his
training period, indicated a genuine and reasonable concern. The only
evidence in the record to support a fabrication theory is the lapse of
time over the weekend. We are persuaded that Cooley's previous statements,
along with his inarticulate expressions of the basis for his refusal at
that time, overcome the allegations of fabrication.
On the basis of the above, Cooley showed that he engaged in protected activity, the first element necessary to prove a prima facie
case. As to the second element of a prima facie case, Ottawa does not
contest that Cooley's discharge was motivated in part by Cooley's refusal
to work. The discharge letter from Bentgen stated that Cooley was being
discharged in part because he had refused to follow the instructions of
his foreman. Therefore, the element of motivation was proved and Cooley
established a prima facie case of discrimination.

Ottawa defended below and argues before us that Cooley's use of
profanity toward his supervisor was a separable, unprotected action
which would have resulted in Cooley's termination in any event, regardless of the work refusal. The Secretary of Labor argues that because
the profanity was part of the communication of the refusal to work, it
was part of the protected activity itself. The judge agreed with the
Secretary's position, and found that the use of profanity during the
telephone conversation in such a context was part of the protected work
refusal. 4 FMSHRC 1047. We do not agree that the profanity was protected but we hold that Ottawa did not establish that it would have
discharged Cooley for that reason alone.
The right to refuse to work is not explicit in the Mine Act. In
Pasula, we found that right to exist on the basis of the entire statute,
statements of legislative intent and legislative history. We did not
discern then, and we do not now, any foundation for protection of profanity or other opprobrious conduct, whether occurring contemporaneously

520

with or subsequent to a refusal to work. See Robinette, 3 FMSHRC at
817, and Secretary on behalf of Bush v. Un~ Carbide Corp., 5 FMSHRC
993, 997 (June 1983). Thus, because opprobrious conduct is not protected, the operator may show that such conduct motivated the adverse
action, and that it would have taken such action against the miner in
any event for that unprotected conduct alone.
The close nexus between Cooley's swearing and his work refusal
complicates this case. Therefore, the "in any event" test may be best
applied by envisioning Ottawa's response to the situation without a work
refusal, i.e., did Ottawa prove that it would have discharged Cooley if
the events had occurred exactly as they did, except that Cooley had
proceeded to light the pilot?
Ottawa's discharge letter to Cooley clearly identified his•use of
profanity as one motivating factor in his discharge. Ottawa therefore
showed that it was, in part, also concerned by Cooley's use of profanity.
However, in order to prevail Ottawa must also prove the second element
of its affirmative defense--that it would have taken adverse action
against Cooley in any event for this unprotected activity alone. The
judge concluded that Ottawa did not carry its burden. We agree and
find that substantial evidence supports the judge's conclusion.
The record is clear that Cooley was less than an ideal employee.
He had been discharged, reinstated on probationary status and suspended
during that probationary period for insubordination. Bentgen testified
that, given Cooley's record, Cooley would have been discharged for the
use of profane language alone. However, there are countervailing
factors on which the judge relied. Despite Cooley's disciplinary
history, there is no evidence that Ottawa considered his difficulties to
involve profanity. Further, there is no evidence that anyone had ever
been disciplined by Ottawa for swearing or that the operator had a
policy prohibiting swearing, either generally or at a supervisor.
In addition, by Cooley's own admission the swearing came first, yet
Chalmers did not threaten discipline then. Only when Cooley refused to
light the pilot did Chalmers threaten to discipline him. Three times
Chalmers attempted to get compliance by reminding Cooley that he was on
probation. If the swearing had been of significant concern, it is
unlikely that Chalmers would have repeatedly requested that Cooley light
the dryer. Immediately after the incident, Chalmers told Stumpmier that
he had sent Cooley home because of his refusal to light the dryer and
that this was the reason he would recommend Cooley's discharge. He
never mentioned Cooley's profanity in this discussion.

521

We recognize that Cooley's previous discipline involved incidents
of possible insubordination involving work refusals. At the time of the
dryer pilot incident, Cooley had not yet completed his one-year probation
and was clearly at risk for any future acts of insubordination. The
judge could have concluded that Ottawa proved that Cooley's language was
a separate and serious basis for discharge. However, the judge concluded:
After careful review of the record, I conclude and
find that the testimony and evidence adduced in this
case does not support a conclusion that the respondent
would have fired Mr. Cooley for the manner in which
he communicated his work refusal to his supervisor.
4 FMSHRC at 1048. We conclude that substantial evidence supports the
judge's interpretation of the evidence and his rejection of Ottawa's
position.
In conclusion, we find substantial evidence in the record to support
the judge's conclusion that Cooley engaged in a protected work refusal
and that his termination, based in part on that protected activity,
violated section 105(c) of the Mine Act. Ottawa did not prove that it
would have discharged Cooley in any event for his unprotected use of
profanity and is therefore liable for its unlawful action. 1/
Issues remain concerning the judge's remedial order. The judge
ordered Cooley reinstated with back pay but failed to award interest.
The back pay award was based on data submitted by the Secretary, which
utilized the dryer operator's rate of pay. Ottawa alleges that such
calculations are in error because Cooley was a laborer at the time the
discharge occurred. The Secretary argues that the awaLd should have
included interest.
The record reflects, and the judge held, that Ottawa discriminated
against Cooley by discharging him. The Secretary's case did not involve
allegations that Cooley's withdrawal of his bid for the operator's job
resulted from discrimination. Cooley's testimony shows that he withdrew
his bid for numerous reasons which did not involve the lighting procedure.
Tr. 44-45, 64-65, Cooley Deposition 3-7. Cooley had voluntarily withdrawn his bid, without retaliation or conflict, before the incident that
resulted in his illegal discharge. The record does not support a conclusion that the withdrawal of his bid in any way affected the events

ll

We note that Ottawa prohibited manual lighting of the dryer after
the events in this case. It would thus appear that this dispute will
not arise again.

522

leading up to or surrounding his discharge. Thus, Cooley had returned
to ~is laborer's job when on May 2, as had happened in the past, he was
again directed to manually light the dryer's pilot. Therefore, he
should be reinstated to the position and pay rate he would have held but
for the discrimination: that of laborer. Despite Ottawa's failure to
respond to the judge's direction that the parties address remedy, 2/ it
was error for the judge to fashion a remedy so clearly at odds with his
findings and the evidence. Accordingly, we vacate the judge's award
based on the dryer operator's pay rate and remand to the judge for the
limited purpose of calculating a back pay award consistent with Cooley's
status as a laborer at the time the unlawful discrimination occurred.
Further, we hold that, under the circumstances of this case, the
judge erred in awarding to Cooley an increment of 52% of the back pay
award to cover unspecified benefits. It is unlikely that Cooley would
be made whole by receipt of a cash payment for loss of pension contributions. Retroactive payment to the appropriate fund, to insure that
there is no break in service or related abrogation of pension rights
that would have accrued but for the illegal discharge, would appear to
be the appropriate remedy. See NLRB v. Strong, 393 U.S. 357, 358-60 &
n. 4 (1968). Different treatment of health care benefits may also be
required in order to make Cooley whole. Thus, on remand, the judge is
to afford the parties an opportunity to present any argument and additional relevant evidence to insure that the remedy assumes a make-whole
character.
The Secretary challenges the failure of the judge to award interest
on the back pay. As we held recently, "Unless compelling reasons point
to the contrary, the full measure of relief should be granted to a
[discriminatee] •••• Included in that 'full measure of relief' is
interest on an award of back pay." Secretary on behalf of Bailey
v. Arkansas-Carbona Co., 5 FMSHRC 2042, 2049 (December 1983)(citations
omitted). In Arkansas-Carbona, we established a formula for the computation of interest. In general, we contemplated only a prospective
application of the Arkansas-Carbona interest formula. 5 FMSHRC at 2054.
However, in this case, the judge failed to award any interest. This is
inconsistent with the Mine Act because it penalizes Cooley without
cause. Accordingly the case is remanded for computation of interest
pursuant to the Commission's interest formula set forth in ArkansasCarbona.

]:_/
Ottawa was ordered by the judge to address the appropriate back pay
remedy in its post-trial brief. It failed to do so. A party is precluded by the terms of the Mine Act from raising issues on review that
it did not raise below. 30 U.S.C. § 823(d)(2)(A)(iii)(Supp. V 1981).
Were it not for the fact that, as discussed above, the utilization of
the dryer operator's rate is totally without support in the record,
Ottawa would be bound by the judge's award.

52~

The' final issue in'this case is the Secretary's challenge to the
judge's severance, without prejudice, of the civil penalty proceeding
from the discrimination case. In Arkansas-Carbona we.approved the
judge's severing of the Secretary's proposal for civil penalty from the
underlying discrimination proceeding because the proposal was vague and
unsupported by i~formation on the section llO(i) criteria for assessing
a penalty. 30 u.s.c. § 8iO(i). We held in that case that the Secretary
should henceforth include'a penalty request in the discrimination
complaint, supported by allegations concerning the appropriate factors
sufficient to give the operator notice of the basis for the proposed
pen~lty.. 5 ·F;MSRHC'·at 2044-fi.8.
We Aave since promulgated an interim
procedural rule requiring this approach. Commission Interim Procedural
Rule 42(b). 49 Fed. Reg. 5750 (1984)(to be codified at 29 C.F.R.
2700.42).
The present case was filed before the decision in Arkansas-Carbona
and in many respects is similar to that case. The Secretary's complaint
made only a naked request "for an order assessing an appropriate civil
penalty against the respondent for violating section 105(c) of the Act."
The only evidence specifically introduced by the Secretary on the
penalty question was a computer printout of Ottawa's citation history
and the size of Ottawa's Michigan division. Only in the Secretary's
post-hearing bri~f w_as a dol.lcir figure for the penalty proposed. These
facts reveal even less notice to the operator concerning the penalty
issue than was the case in Arkansas-Carbona. As we stated in affirming
the judge's actions in that case:
Because the Secretary did not provide in his
complaint sufficient notice to the operator of the
amount of the penalty sought and the basis therefor,
we ~annot say that the judge erred in severing the
penalty proposal in order to provide such notice to
the operator. Nor do we see the utility of a remand
to allow the Secretary to amend his complaint. The
judge's approach to the Secretary's inadequate proposal is consistent with the Act's notice requirement ••••
5 FMSHRC at 2048. There is no reason to take a different approach in
this case and we therefore affirm the judge's severance of the civil
penalty proceeding.
For the foregoing reasons, we affirm the judge's conclusion that
Ottawa violated section 105(c)(l) of the Mine Act by discharging Cooley.
Having so found, we order Cooley's immediate reinstatement to his
position of laborer if such action has not been previously taken.
We vacate the judge's award of back pay at the dryer operator's

524

rate and remand for recomputation of back pay at the laborer's rate with
reconsideration of the treatment of fringe benefits. The judge shall
award interest under the principles and methodology of Ar~nsas-Carbona.
Lastly, we affirm the judge's severance of the request for a civil
penalty from the merits of the discrimination case. 1,/

L. Clair Nelson, Conunissioner
'

3/
Ottawa has challenged the Commission's jurisdiction in this case,
citing as its basis for this argument the enactment of H.R.J. Res. 370,
Pub. L. No. 91-92, § 131, 95 Stat. 1183, 1199 (1981), during the hearing
in this case. This enactment was a Continuing Resolution on appropriations, which included a prohibition against expenditures by the
Department of Labor's Mine Safety and Health Administration ("MSHA") to
enforce the Mine Act in sand, gravel, and crushed stone mining operations.
That prohibition only affected MSHA's funding. The Conunission is a
separate and independent federal agency, not connected to or part of the
Department of Labor. At the time of the Resolution's passage, this case
had already been filed with the Commission and the Commission had independent authority to resolve the issues. See generally Climax Molybdenum Co.
v. MSHA and OCAW, 2 FMSHRC 2748, 2750 (October 1980), aff'd sub nom.
Climax Molybdenum Co. v. Secretary of Labor, 703 F.2d 447 (10th Cir.
1983). (In July 1982, supsequent to the hearing in this case, H.R.J.
Res. 370.was superseded, and MSHA's previous enforcement authority over
sand, gravel, and crushed stone operations was re-established.)

525

Distribution
Frank X. Fortescue, Esq.
Brown, McGlynn• tortescue & Smith
500 North Woodward, Suite 320
Bloomfield Hills, Michigan 48013
Barry F. Wisor, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge George Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

526

Al)M1Nl$TIATIVE LAW JUI)GE DECISIONS

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

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

v.

CIVIL PENALTY PROCEEDING

.

Docket No. WEVA 83-277
A.C. No. 46-02166-03517-A
Beckley No. 1 Mine

ROBERT G. MILLER,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have moved for approval of settlement by
payment of the civil penalty ($750) proposed in the petition.
Grounds for the motion may be summarized as follows:
1. This is a civil penalty proceeding brought under
section llO(c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. 820(c), against Respondent as an individual
agent of Ranger Fuel Corporation, the operator of the Beckley
No. 1 coal mine located in Bolt, Raleigh County, West Virginia.
On the date in question, February 10, 1982, Respondent was
acting as general labor foreman at said mine.
2. On February 10, 1982, MSHA issued Citat~on No.
1061681 under section 104(a) of the Act to Ranger Fuel
Coroporation, citing a violation of a mandatory safety standard,
30 CFR §48.7(c), as follows:
It was revealed during a fatal track haulage
accident that Bob Miller, foreman, as.signed
William Hall, Jr., a general inside laborer,
to assist Lee Hackworth, mine locomotive
operator, in moving a piece of mining equiprqent
(longwall roof support jack) from the end
of the (013) longwall section mine track
to the mouth of the section, a distance
of about 2,000 feet. The roof support
jack was being pulled by a mine locomotive
on which Hall was assigned to ride. Hall
was not given instructions in the health
and safety aspects and safe work procedures
related to the assigned task prior to pertorming
such task. The investigation revealed
that Hall had not performed this task o~
demonstrated safe work procedures for such
task within the last 12 months. An examination
of the training records revealed Hall had
not been trained in such task.

52_·''-

3. On June 28, 1983, the corporate mine operator,
Ranger Fuel Corporation, paid an uncontested civil penalty
assessment of $2,000.00 for the foregoing violation under
MSHA Assessment Office Case No. 46-02166-03514.
4.

On August 30, 1982, ·pursuant to 30 CFR Part 100,

· a proposed civil penalty assessment of $750. 00 was issued
by the MSHA Assessment Office to Respondent under A.O.
.
Case No. 46-02166-03517-A for knowingly authorizing, ordering,
or carrying out the foregoing violation as an agent of the
corporate mine operator under section llO(c) of the Act.
5. On September 19, 1983, Respondent filed a notice of
.contest of said proposed assessment, resulting in this
proceeding. However, Respondent now no longer wishes to
contest the subject case and has tendered a check in the
amount of $750.00 in full payment and settlement of the
proposed civil penalty assessment and as a plea. of no
contest entered herein for the purposes of this proceeding
under this Act only, and not as an admission in any other
proceeding.
I find that the motion for settlement is consistent
with the statutory criteria for civil penalties. Accordingly,
the motion is GRANTED.
ORDER
WHEREFORE IT IS ORDERED ·that Respondent shall pay the
above approved civil penalty of $750.00 and upon such payment
this proceeding is DISMISSED.

~) t1

..

·1 .

c,(/.#,~ ftwVi!--1-

William Fauver
Administrative Law Judge

Distribution:
J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203
(Certified Mail)
John c. Ashworth, Esq., Ashworth & Ashworth, P.O. Drawer AA,
Beckley, West Virginia 25802-2824 (Certified Maill

kg

528

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

MAR 61984
THE HELEN MINING COMPANY,
Contestant

CONTEST PROCEEDINGS
Docket No. PENN 83-200-R
Citation No. 2111715; 5/25/83

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

Docket No. PENN 83-201-R
Citation No. 2111718; 6/1/83
Docket No. PENN 83-202-R
Order No. 2111719; 6/1/83
Docket No. PENN 83-203-R
Order No. 2111720; 6/1/83
Horner City Mine

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-232
A.C. No. 36-00926-03532

v.

Horner City Mine

HELEN MINING COMPANY,
Respondent
DECISIONS
Appearances:

Thomas c. Means, Esq., Crowell & Moring,
Washington, D.C., for Contestant/Respondent;
Catherine O. Murphy, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Respondent/Petitioner.

Before:

Judge, Koutras
Statement of the Proceedings

These consolidated proceedings were heard in Pittsburgh,
Pennsylvania during the term November 8-9, 1983. The civil
penalty docket concerns proposals for assessment of civil

529

penalties filed by the petitioner against the respondent
pursuant to Section llO(a) of the Federal Mine Safety and
Health Act of 1977, seeking penalty assessments for four
alleged violations of certain mandatory safety standards
promulgated under the Act. The contests were filed by the
contestant to challenge the legality of one citation and
three orders issued pursuant to section 104(d) (1) of the Act.
Issues
The issues presented in Dockets PENN 83-200-R, 83-201-R,
83-202-R, and 83-203-R, are whether the conditions or practices
cited by the inspector constituted violations of the cited
mandatory safety standards, and whether or not the violations
were "unwarrantable" and "significant and substantial."
Assuming that the fact of violation is established in
each of the above dockets, the remaining Docket, PENN 83-232,
concerns the appropriate civil penalties to be imposed for
each of the violations after taking into account the requirements
of Section llO(i) of the Act.
Applicable Statutory and Regulatory Provisions
1.
The Federal Mine Safety and Health Act of 1977, P.L.
95-165, 30 U.S.C. § 801 et seq.
2.

Commission Rules, 29 CFR 2700.1 et ~

Docket No. PENN 200-R
This docket concerns a Section 104(d) (1) Citation No.
2111715, issued by MSHA Inspector Lloyd D. Smith at 9:10 a.m.,
on May 25, 1983. He cited a violation of mandatory safety
standard 30 CFR 75.1722(c), and the condition or practice
is described as follows on the face of the citation:
A portion of the guarding provided at the
6 East Crossover belt drive on the clearance
side was laying on the mine floor and the
lower half of the fan blades on the drive
motor were exposed because part of the
protecting shroud had been broken off exposing
the moving fan blades.
Inspector Smith found that the violation was "significant
and substantial," and that the negligence by the mine operator
was "High."

530

Inspector Smith fixed the termination date for the
citation as May 25, 1983, 10:00 a.m., and he stated that if
was terminated at 9:55 a.m. that day, and that "The guarding
was put back in place securely."
Docket No. PENN 83-201-R
This docket concerns a Section 104(d) (1) Order No. 2111718,
issued by MSHA Inspector Lloyd D. Smith on June 1, 1983. He
cited a violation of mandatory safety standard 30 CFR 75.500(a),
and the condition or practice is described as follows on the
face of the order:
A nonpermissible switch box was being
used to supply electric power to a water
pump located in a working place, crosscut
No. 8 to No. 9 room of the D-Butt, 040 Section.
This violation occurred on a previous shift.
Inspector Smith noted that the violation was "significant
and substantial," and he marked the appropriate negligence
block on the citation form "Reckless Disregard." He also
made reference to a previous section 104(d) (1) Citation No.
2111715, which he issued on May 25, 1983.
Docket No. PENN 83-202-R
This docket concerns~ Section 104(d) (1) Order No. 2111719,
issued by MSHA Inspector Lloyd D. Smith at 9:15 a.m., on
June 1, 1983. Mr. Smith cited a violation of mandatory safety
standard 30 CFR 75.200, and the condition or practice is
described as follows on the face of the Order:
The approved roof control plan was not
being complied with in the D-Butt 040 Section
in that mining operations had been completed
in a crosscut No. 8 to No. 9 room, the
mining machine had been removed and warning
signs had not been installed to warn persons
that the mine roof was unsupported in this
area. The violation occurred on a previous
shift.
Inspector Smith did not find that the violation was
"significant and substantial," but noted the negligence as
"high" on the face of the order, that "the occurrence of the
event against which the cited standard is directed was unlikely,
and that any resulting injury would be "no lost workdays."
As for the abatement of the cited condition, Mr. Smith noted
that the order was terminated at 9:25 a.m., on June 1, 1983,
and that "the warning signs were installed in the affected
area."

531

Doc~et

No. PENN 83-203-R

This docket concerns a Section 104(d) (1) Order No.
2111720, issued by MSHA Inspector Lloyd D. Smith at 9:17 a.m.,
on June 1, 1983. Mr. Smith cited a violation of mandatory
safety standard 30 CFR 75.200, and the condition or practice
is described as follows on the face of the order:
It was evident that a person or persons
had worked inby the permanent roof supports
in a crosscut No. 8 to No. 9 room in the
D-Butt, 040 Section in that a permissible
type water pump had been installed 3 feet
inby the last row of installed roof bolts
and there were no temporary roof sup~orts
installed in this working place to permit
the installation of the pump. This
violation occurred on a previous shift.
Inspector Smith noted that the violation was "significant
and substantial," and marked the appropriate negligence
block on the citation form "High." He also made reference
to his previous section 104(d) (1) Citation No. 2111715,
which he issued on May 25, 1983.
Inspector Smith noted that Citation No. 2111720 was
terminated on June 1, 1983, at 9:45 a.m. and that "The pump
was removed by dragging it out with the discharge line cut
power cable."
Stipulations
The parties stipulated to the following:
1. The Helen Mining Company owns and operates the
Horner City Mine and both are subject to the jurisdiction of the Federal Mine Safety and Health Act of
1977, Public Law 91-173, as amended by Public Law
95-164 (Act) .
2. The Administrative Law Judge has jurisdiction
over this proceeding pursuant to Section 105 of
the 1977 Act.
3. The subject Citation No. 2111715 and Order Nos.
2111718 and 2111720, were properly served by a duly
authorized representative of the Secretary, Lloyd Smith.
4. Copies of Citation No. 2111715, Order No. 2111718
and Order No. 2111720 (attached to the Petition for

Assessment of Civil Penalty) are authentic copies
of the original citations and orders.
4a. Copies of all documents offered and received
by the parties as part of the hearing record in
these proceedings are authentic copies of the
original documents.
5. The assessment of a civil penalty in this
proceeding will not affect the operator's ability
to continue in business.
6.
The computer printout reflecting the operator's
history of violations is an authentic copy and may
be admitted as a business record of the Mine Safety
and Health Administration.
7.
The appropriateness of the penalty, if any, to
the size of the coal operator's business should be
determined based on the fact that the Homer City
Mine has an annual production of 1,043,911 tons
and Helen Mining Company has an annual production
of 13,414,096 tons.
8. The operator demonstrated a good faith effort
to comply following issuance of Citation No. 2111715,
Order No. 2111710 and Order No. 2111720 by taking
immediate action to correct the cited conditions.
PENN 83-200-R,

Citation No. 2111715

1. A guard was not securely in place over the lower
portion of the ~an blades on the drive motor of a
conveyor belt while the belt was being operated, in
violation of 30 CFR 75.1722(c), ·on May 25, 1983, at
the 6 East crossover belt drive of the Homer City
Mine.
2.
The operator demonstrated ordinary negligence
in failing to detect and correct the condition
described in Citation No. 2111715.
3.
If an injury were to occur as a result of the
violation described in Citation No. 2111715, it
would be a serious injury.
PENN 83-201-R, Order No. 2111715
1. A nonpermissible switch box, which is the
subject of Order No. 2111718, was located in the
working place, inby the last open crosscut, No. 8
to No. 9 room, 040 Section on June 1, 1983.

533

2. Two electrical power cables were connected
to the subject nonpermissible switch box. One
of these electrical cables was connected to a pump,
the other cable extended a distance of approximately
300 feet from the connection at the switch box
to the power center.
3. The power cable which led to the power center
was not energized at the time Order No. 2111718
was issued.
4. The power cable which led from the switch box
to the power center was not "tagged out" or labelled
in any manner to indicate that it should not be
energized.
Docket PENN 83-200
MSHA's testimony and evidence
MSHA Inspector Lloyd Smith testified as to his background
and experience, and he confirmed that he inspected the mine
on May 25, 1983, and issued a Section 104(d) (1) citation for
a violation of mandatory standard 75.1722(c), (exhibit G-1).
He stated that he issued the citation after observing that the
belting used for guarding the belt conveyor drive was lying
on the floor.
The belt drive was operating at the time he
observed the condition, and he confirmed that he observed
the protective shroud used to guard the lower half of the
drive motor was broken off (Tr. 9-14).
Inspector Smith identified exhibit J-2(a) as a photograph
of the missing portion of the protective shroud used to guard
the motor fan blades, and he identified exhibit J-2(d)
as a photograph of the guarding which was off the equipment
in question. He stated that he believed the violation to
be "significant and substantial" because the protective
belting which was lying on the floor was wet and slippery
and if someone were to slip on it they would possibly fall
into the unguraded opening on the metal motor fan blades
(Tr. 18). He also considered the wet belting lying on the
floor to be a tripping hazard (Tr. 19), and he confirmed
that the person exposed to possible injury would be the
preshift or belt examiner who walked the belt (Tr. 20).
Inspector Smith indicated that abatement was achieved by
installing a wooden support near the motor drive and nailing
the belting back up (Tr. 21).

534

On cross-examination, Inspector Smith testified as to
certain "cap lamps" which he observed at some distance in
the No. 6 East Belt Haulage area, and he estimated that
theythey were approximately 200 feet from the location of
the unguarded drive motor (Tr. 24). He confirmed that the
motor in question was partially guarded, and he indicated
that his only concern was over the fact that the belt guarding
normally used to guard the drive motor was lying on the floor
(Tr. 27).
Mr. Smith conceded that production crews would not
normally be in the area of the unguarded belt motor. He
also conceded that a clearly defined walkway, with "very
good clearance" was located adjacent to the unguarded motor
area (Tr. 28). He also confirmed that there were no coal
accumulations in the area around the motor in question (Tr. 33).
Mr. Smith stated that a preshift belt examiner would have
occasion to be in the area in question because he would
place the time, date, and his initials on the belting to
confirm that he had examined the area (Tr. 35).
In response to further questions, Mr. Smith testified
that he observed footprints on the belting lying on the floor,
and that this indicated to him that someone had walked across
the belting while in that position (Tr. 37). He confirmed
that the unguarded motor opening area which he was concerned
about was approximately 26 inches, and he stated that he
measured the distance and identified it on exhibit J-2
(Tr. 38-41) .
In response to additional questions, Mr. Smith confirmed
that he identified the miners who he previously observed
by their "cap lamps," and that he did so after the citation
was abated and terminated.
He identified them as belt cleaners,
and he confirmed that they informed him that they were unaware
that the belt guarding was down and that they had not been
in the area (Tr. 41). Mr. Smith also confirmed that while he
waited around the unguarded motor area before issuing the
citation, no one appeared to do any work in the area, and
the last inspection entry made on the belt guarding was for
the day shift on May 24, which was the 8:00 a.m. to 4:00 p.m.
shift (Tr. 44). He contacted the section foreman who had
made this entry, and he informed him that the belt guarding
was intact when he inspected the area, and Mr. Smith had no
reason to disbelieve him (Tr. 45).
In response to how long the belt in guarding was off the
motor in question, Mr. Smith stated that he was informed
by the safety committee that mine management was informed
on May 20 that the belt guarding was off, and that the bottom

535

half of the protective motor shroud was missing (Tr. 47).
He was also informed that a replacement for the broken
shroud had been ordered, and that the belting guard was
installed to keep people out of the area, and he explained
the purpose of the belting as follows (Tr. 48-50):
JUDGE KOUTRAS: My question is, if the
shroud were in one piece, and wasn't
broken off at the bottom, would there be
a need for this belt guarding?
THE WITNESS: Not in the location it's
put there, no. There would be a need for
guarding, but not where it is.
JUDGE KOUTRAS: You mean there would be a
need for an additional guarding on the motor
to protect the motor blades other than the
shroud?
THE WITNESS: No, not the motor. The only
guard on the motor would be over the coupler
between the motor and the gear case drive.
Maybe, if you let me walk over there, I can
show you what I'm talking about.
JUDGE KOUTRAS:

Sure.

Go ahead.

THE WITNESS:
If all of this shroud was intact,
and there was no problem, then they would guard
this area in here so a person would have no way
to get in up in here. They would have to come
around here. They would just guard this area
right through here.
JUDGE KOUTRAS: But, what I'm saying is, you
issued the Citation because the blades of the
motor were exposed. Right?
THE WITNESS:

Right.

JUDGE KOUTRAS: Well, if the shroud was intact,
completely over the blades of the motor, what
would that belt guarding on the side do?
THE WITNESS: What does this guard do? It
prevents anybody from going in here, or slipping
or falling in here, if that guard is up in place.
JUDGE KOUTRAS:
Is that belt guard there to
protect other areas of that belt, or is it there
simply to protect someone from falling into the
exposed lower half of the motor blades?

536

THE WITNESS: Well, I think it's in there
for both in this particular case.
It's in
there for both reasons.
JUDGE KOUTRAS:
my question?
MS. MURPHY:

Ms. Murphy, do you understand

I think I do, Your Honor.

JUDGE KOUTRAS:

Is there an answer?

MS. MURPHY: Whether or not he would have cited
it if the shroud was on there.
JUDGE KOUTRAS:

That's right.

MS. MURPHY:
I think what he just testified to,
Your Honor, is that there are other things there
that he believes people should be prohibited,
or prevented from getting in to, and that the
belt guard that was not in place served that dual
function.
If the shroud was on, there would
still be a need for a guarding in a different
location to prevent entry into the moving parts.
JUDGE KOUTRAS: My question, then, is, if the
shroud were on, would we have this case. We
might have had some other location as not
guarded, but would we have an allegation that
the fan blades on this motor, which were
exposed, were not guarded? If that shroud
were completely on, would he have issued a
Citation on the fan blades of the motor?
MS. MURPHY: From what I understand about the
case, it would not with respect to the exposed
moving parts on this piece of equipment.
JUDGE KOUTRAS: My next question is; if the
problem was caused by the bottom half of the
shroud being broken off, .and if that condition
were there, why was the Citation abated by
simply permitting them to put this belting up
rather than making the Operator put that shroud
back the way it was?
MS. MURPHY: The Operator had indicated to the
Inspector that they had ordered a shroud, Judge,
but, in the interim, I think -JUDGE KOUTRAS:
If I walked into this mine today,
would I find a shroud or a belt?

537

·MS. MURPHY:

We don't know.

JUDGE KOUTRAS: Can somebody answer that question?
Have you been back to this mine since May 25, of
'83, back to this section?
THE WITNESS:
MR. MEANS:

I would have to look in my notes.
Your Honor, if I may explain.

JUDGE KOUTRAS:

Yes, Mr. Means.

MR. MEANS: We may be able to get into some
of this with my witness, Mr. Turner, but the
shroud had broken when the device was being
installed, I believe. The shroud had been
ordered from the manufacturer.
It's a special
part you have to purchase from the manufacturer.
And, in fact, one shroud had been delivered,
and it was the wrong size and couldn't be
installed, and so they had to order another one.
In the meantime, they erected the belt guarding
to preclude access to the area.
JUDGE KOUTRAS: Okay. Now, my next question,
Mr. Means, if you know, is the shroud on that
motor today?
MR. MEANS:

I believe it is not.

JUDGE KOUTRAS:
MR. MEANS:
right now.

Or is it still on order?

I believe it is not on that motor
I believe it is still on order.

JUDGE KOUTRAS:
It is not? And, the reason it
is not on is because MSHA abated the Citation,
and is permitting you to use this belting as an
adequate guarding, for that broken shroud?
MR. MEANS:

I don't know the answer to that.

Inspector Smith explained that his concern was over
the fact that if the guarding were left on the floor, anyone
walking by and slipping on the wet belt guarding lying on
the floor could have caught in the exposed motor blades
(Tr. 53). He believed that the support post used for nailing
up the belt guarding had either fallen down or was removed
sometime during the immediate two preceding work shifts on
the afternoon of May 24 or the morning of May 25 (Tr. 56).
He further explained his reasons for issuing the citation as
follows (Tr. 58-59):

538

JUDGE KOUTRAS: Let me ask you this question.
Assuming that that belt guarding were not in
place at that location, and assuming that the
shroud was completely on that motor again;
assume this, the shroud was in place completely
over the blades of the motor, and the belt
guarding was not in place, would you still have
.issued the Citation?
THE WITNESS:

Yes.

JUDGE KOUTRAS: And the reason for that is, in
your opinion, the belt guarding was put there
to keep people from getting to of that belt?
THE WITNESS:

Right, to the drive rollers.

JUDGE KOUTRAS: To the drive rollers, yes.
Would you characterize this belt guarding, more
or less, as a physical barrier to alert people
to stay out, or actually as a physical guard?
I'm not trying to be technical, but, what if
they had a fence out there, or a couple of posts
running horizontally. Is that to keep people
out of there, or is it to serve as a physical
guard?
THE WITNESS: In this particular case, I think
it's both. You see guarding in place. That
kind of takes your eye. You see a barrier set
up in front of you, guarding. It's like a
barrier.
JUDGE KOUTRAS: You cited them, now, with a
provision of the Standard that says that, "Except
when testing, guards shall be securely in place
while machinery is being operated." You saw
no evidence of testing?
THE WITNESS:

No, I didn't.'

JUDGE KOUTRAS: Do you have any idea what the
Company policy is with regard to doing maintenance
on such equipment? In terms of locking out, and
all that sort of business?
THE WITNESS: What I've seen during my inspections
there, they do lock equipment out prior to working
on it.

539

Helen Mining Company's testimony and evidence
David Turner, testified that he has been employed by the
respondent as a dust sampler since 1979. He confirmed that
Mr. Smith conducted an inspection on May 25, 1983, and that
he issued the guarding citation in question (Tr. 62).
Mr. Turner also confirmed that abatement was achieved by
installing a post in place near the drive motor in question,
and nailing the belt guarding on the post (Tr. 63). He
stated that Mr. Smith told him that his concern was over
someone possibly slipping and falling into the moving belt
motor drive blades.
Mr. Turner stated that the walkway adjacent to the area
which concerned Mr. Smith was traveled by belt examiners,
cleaners, or maintenance personnel, and he confirmed that
the walkway was about eight feet wide (Tr. 65). He stated
that any belt work is done between shifts while the belt is
down, and he explained the procedures for cleaning and maintaining
the belt in question (Tr. 65-67). He confirmed that a footprint
was present on the belt guarding which was down (Tr. 68).
However, he believed that the motor housing itself served
as a "natural barrier" to the motor. He confirmed that the
belt guarding was installed to take the place of the broken
motor shroud, and that this was done until such time as a
new shroud which had been ordered could be used to replace
the broken one (Tr. 69-70). He believed that anyone slipping
in the area in front of the motor would have to make a concerted effort to reach the exposed motor blades (Tr. 70).
On cross-examination, Mr. Turner stated that the mine
bottom in the area in question was wet and muddy, and that
it was possible for someone to stick in the mud and lose
their balance (Tr. 71). He generally described the equipment
in the vicinity of the motor in question, and indicated that
anyone using an oil fill-up on an adjacent motor would have
to make a conscious effort to reach the cited location
(Tr. 74). However, he conceded that someone standing immediately
in front of the cited drive motor in question could reach
in and contact the exposed blades, and that if he were to
get himself between the guard and blades while standing
at the perimeter of the motor housing, he could come in
contact with the motor blades (Tr. 76).
Mr. Turner confirmed that after the citation was issued,
he ascertained that the broken motor shroud had been in that
condition for at least two weeks, and while no one brought
this condition to his attention, he assumed that the mine
safety committee called it to MSHA's attention (Tr. 79).

540

When asked to explain what Inspector S.mith may have told
him at the time he issued the citation, Mr. Turner stated
as follows (Tr. 80-84):
JUDGE KOUTRAS: Did Mr. Smith explain to you
why he considered the violation to be
unwarrantable?
THE WITNESS:
JUDGE KOUTRAS:

Yes.
What did he tell you?

THE WITNESS: He said that a belt examiner,
as part of his normal duties, in that area,
should have seen the situation, determined
that it needed corrected, and had it corrected.
Something to that particular effect.

*

*

*

JUDGE KOUTRAS: But, in the two intervening
shifts, someone was required to go there
and make an examination.
THE WITNESS:

Yes.

JUDGE KOUTRAS: My question is, did anyone,
either Mr. Smith or you, or the Company,
during the period after the Citation
was issued, determine, number 1, whether
someone went there, and if so, why they
didn't take appropriate action to make
sure that the guarding was put back up?
THE WITNESS: We did take action to try to
pin that down.
JUDGE KOUTRAS:
that action?

And what was the result of

THE WITNESS: The result of that was that the
two people in the two ·shifts making examinations prior to that could not remember if it
was up or down. The person that was there on
the third shift beforehand had seen it and said
that it was up. And that's as close as we
could pin it down.
JUDGE KOUTRAS: Now, if it were down, I assume
that the belt examiner is required to make some
entry in the book. Is he not?

·541

·THE WITNESS: What he will do -- , he would
probably, if it took a post and resetting the
post, he would probably do that himself.
If he could not correct the situation, then
he should put something in the book to that
effect.
JUDGE KOUTRAS:
It's obvious that nobody
put the post up, or put the belting up, or
you. wouldn't have the citation.
THE WITNESS:

Right.

JUDGE KOUTRAS: So, there's a strong inference
that what? He either saw it up, or it
mysteriously fell down during the time that he
inspected it, or --?
THE WITNESS:

*

*

It's one or the other.

*

JUDGE KOUTRAS: Did you determine whether or not
any maintenance work was being done on this belt
at any time during the intervening shifts prior
to the time that the Inspector arrived?
THE WITNESS:

No.

JUDGE KOUTRAS: Did you ascertain whether or not
any testing was being done?
THE WITNESS: There was no testing being done
during that 24 hour period.
MSHA's counsel conceded that if the motor blade protective
shroud had not been broken in such a way as to expose as
the bottom half of the motor blades, there would be no
requirement for the belt guarding which was required to
keep persons out of the area.
Inspector Smith confirmed
that he issued the citation for the exposed blades and nothing
else (Tr. 87). He also confirmed that several days after
the citation issued, the safety committee informed him that
the broken shroud condition had previously been brought to
mine management's attention, but that at the time of his
unwarrantable failure finding he was not aware of that fact
(Tr. 88). When asked to explain why he made an unwarrantable
failure finding at the time he issued the citation, Mr. Smith
explained as follows (Tr. 88-90):

542

Q. So that leads me to the next question.
Why did you feel that this was an unwarrantable
failure?
A. Because that's an area that should be included
in the examination. Regulations require, on the
belt haulage examinations, that dates, times
and initials be placed in a sufficient number of
places to indicate that the entire belt haulage
has been examined.
Q.

All right.

A. There were no dates, times and initials there
for the two previous shifts. And, I stated
earlier, I did talk to the day shift Foreman that
did have a date up there the prior day.
I stated
his comments.
Q. Now, the Citation you issued was for failure
to make the preshift examinations for the two
shifts? Is that right?
A. No, I did not.
303(a)?
Q.

The Citation I issued under

Yes.

A.
I cited, it was, the dates, times and initials
were not evident to indicate that the area had
been examined. There's no way I could say they
did not examine it.
Q. All right. Well now, that's what I'm saying.
That doesn't mean the same thing, does it?
A. No. I just cited them for not placing their
dates, times and initials there to indicate
they had been there.
Q. Now, if the place where the fellow would
normally write that information was down on the
ground, would he have a place to write it?
A. They were dating up right on the belt
guarding. Primarily, right on the guarding between
the two posts. That's where the previous day
shift Foreman's date was.
Q. Did you ever determine whether or not the
two fellows that are required to make the preshift
actually made it?

543

.A.
Yes.
I know that it was dated Fred ·oobson.
It was dated up FD along the belt haulage going
back to 7 east and 1 butt, which 1 butt didn't
have a belt drive at that time. He had his dates
along that entire belt haulage.

Q. So, he did, in fact, make that particular
location, the preshift?
A.
At 7 east he was dated up, and at the belt
taii he was dated up, or crossover belt, yes.

Q. Well, what I'm saying is, for the two
previous shifts prior to your arrival, were you
saying that they hadn't entered any dates or
initials, and you issued Citations for not doing
that, for not making that mechanical entry?
Do you know whether they, in fact, inspected that
area?
A.

Mr. Dobson stated he did.

Q.

He did.

How about the other fellow?

A.
I don't know.
I haven't been able to determine
who was required to make that on the 4 to 12
shift.
Dockets PENN 83-201-R and PENN 83-203-R
MSHA's testimony and evidence.

PENN 83-201-R.

~SHA Inspector Lloyd Smith confirmed that he was at the
mine in question on June 1, 1983, to conduct an inspection.
Upon walking into the No. 8 room located in the no. 8 to
no. 9 crosscut working place he observed a nonpermissible
switchbox lying along the left rib. He described the switchbox
in question and stated that it was being used to supply
power to a submersible pump located in the no. 8 and no. 9
crosscut.
The switchbox controlled t~e power from the box
to the pump. A power cable ran from the box to the pump,
and another power cable ran outby from the box towards the
power center.
The pump was approximately 20 to 25 feet
from the box, and the pump was not running.
The pump was
located in water where the place had flooded out and the roof
in that area was not supported.
The power cable was not
energized and the switch was off, and he estimated that the
box cable was located approximately 300 to 400 feet from the
power center. He estimated that the cable plug was approximately
two to three feet from the power center. He identified
exhibit G-3 as the section 104(d) (1) Order that he issued
for the violation (Tr. 103-109).

544

Inspector Smith stated that his conclusion that
the nonpermissible switchbox was being used to supply power
to the pump was based on his observation of the pump, the
flooded conditions, and a pump discharge line used to move
the water. He also observed the power cable going to the
power center, and since there was an obvious need for the
pump in that working place, he concluded that the pump was
used (Tr. 110).
After making his initial observations, Mr. Smith stated
that he began walking down the entry toward the power center
with day shift foreman Mitsko, but was interrupted when he
encountered company safety Dale Montgomery, and Mr. Mitsko
continued on to the power center. Mr. Mitsko came back and
informed him that the cable plug was not plugged into the
power center, but that it had not been "dangered off."
Mr .. Mitsko informed him that he had "dangered it off" or
"tagged it" so that the plug could not be used (Tr. 111) .
Mr. Smith gave the following explanation for the issuance
of the order (Tr. 112-115):

Q.

Inspector Smith, I want to ask you to
assume, for a moment, that the pump was not
energized on the previous shift. Would the
conditions you observed in that area still
constitute a violation of 75.500(a), in your
opinion?
A.

Yes.

Q.

Can you tell the Judge why?

A.
.500(a}, a nonpermissible distribution
box, or switchbox, whatever you want to call
it, was used to make physical electrical
connections. And, .500(a) prohibits making
power connections with nonpermissible equipment.
JUDGE KOUTRAS: Well, as I read (a}, it simply
$ays that all junctional distributional boxes
used for making multiple power connections inby
the last open crosscut shall be permissible.
That presupposes that it was used?
THE WITNESS:
yes.

It was used to make those connections,

JUDGE KOUTRAS: In other words, what you found,
quite candidly and frankly, was a circumstantial
case.
Isn't that true? That you assumed there
was a pump, there was a cable, and all this, and
it was set up to pump water.

545

THE WITNESS:

Right.

JUDGE KOUTRAS:

How deep was the water?

THE WITNESS:

I couldn't say, at the face.

JUDGE KOUTRAS: Everything that you saw led
you to believe that that's what that pump
was there for?
THE WITNESS:

Right.

JUDGE KOUTRAS: So you came to the conclusion
that it was used at some time to do what it
was intended to do, that is, to pump the water
out.
THE WITNESS:

Correct.

Q. Inspector Smith, did the absence of the
danger signs have any effect on your opinion
that a violation of 75.SOO(a) would have still
existed even if the pump wasn't energized?
A. No, it would still be the violation whether
it was connected or not. It was used to make
electrical connections in a working place. It
was nonperrnissible equipment.
JUDGE KOUTRAS: Wait a minute. Her question was,
would the absence or the presence of the danger
sign, or a tag, tagging had made any difference?
THE WITNESS: No.
It would not. If it was
dangered off at the power center, and that switchbox was where it was, it would still be a violation.
JUDGE KOUTRAS: On the theory that someone would
disregard the danger sign and, possibly, come
up and plug it in, and would use it? Or, that
at one time it was used?
THE WITNESS: Well, no. Thinking that if the
switchbox, itself, was lying there, no cables
attached to it, nothing connected, I would say
it would be no violation. A nonpermissible
switchbox being there with cables connected to
it, and connected to the circuit breaker within
it, is a violation.

546

JUDGE KOUTRAS: Even though there's no power
to it at the other end, from the power center?
THE WITNESS:
connections.
JUDGE KOUTRAS:

Right.

It was used to make

Okay.

BY MS. MURPHY:

Q. In your opinion, was the switchbox, or the
box, available for use at the time that you
cited the violation?
A.

That was readily available for use.

Q.

Why do you say that?

A. All they'd have to do is plug it in to the
power center, go up there and turn the switch on,
and run the pump. The discharge line was hooked
up. Everything was there.
Mr. Smith stated that the presence of the nonpermissible
pump posed a potential ignition explosion hazard because the
mine liberates methane. He tested for methane in three places
and found "three-tenths every place that I checked" (Tr. 117).
He indicated that the mine is on a five-day spot inspection·
cycle because it liberates over a million cubic feet of
methane in 24 hours.
In the event of any interruption to
the ventilation, the switchbox would be a potential ignition
source, and since it appeare<.l. to him that the operator's
intent was to use the pump, all that he had to do was to
plug it in.
In these circumstances, he believed that it was
reasonably likely that an ignition would occur if the
nonpermissible switchbox were to be filled with an explosive
mixture of methane (Tr. 118).
Mr. Smith testified that the violation was "unwarrantable"
because the preshift examiner had made an entry at the
appropriate location in the area ~ndicating the dates of
his examination, and since the examiner would have been in
the area where the pump was located he should have observed
the violation (Tr. 119).
MSHA's Testimony and Evidence.

PENN 83-200-R.

MSHA Inspector Lloyd Smith confirmed that he issued a
second Section 104(d) (1) Order on June 1, 1983, charging
a violation of mandatory safety standard section 75.200
(exhibit G-5). He stated that he issued the violation after

547

observing the water pump ref erred to earlier installed
inby permanent roof supports. He identified a copy of the
mine roof control plan (exhibit G-7), and he stated that the
pump in question was approximately three feet inby the last
row of roofbolts, and he measured this distance by means of
a flexible tape ruler (Tr. 120-124).
Mr. Smith stated that there was a violation of "safety
precaution" No. 4, pg. 5 of the roof control plan in that
the installation of the pump was accomplished without
installing temporary roof supports. He observed no one
travel under any unsupported roof while he was at the scene,
but the location of the pump as he observed it led him to
conclude that someone had to take it inby permanent supports
to place it where he observed it (Tr. 125). He confirmed
that he observed no temporary supports inby the last row of
roofbolts, and that while he was alone in the area at.the
initial observation of the pump, Mr. Mitsko came in and saw
the condition and he informed him that he was issuing the
order. He described the pump as approximately 24-30 inches
high, and indicated that it had a power cable running to
the switchbox, but that it was not energized (Tr. 126).
Mr. Smith stated that the violation was "significant
and substantial" because a sudden collapse of a roof could
occur at any time, and if that happened and someone were
under unsupported roof a fatality could occur. Since he
believedsomeone had been under unsupported roof to install
the pump, and since most fatalities caused by roof falls
occur within 25 feet of the face area, he believed it was
"reasonably likely" that a fall could have occurred (Tr.· 128).
He did not know how long the unsupported roof condition
existed, and he confirmed that he indicated on the face of
his order that the pump had been "installed" because he observed
it_ was placed "just right" so that the water discharge line
was-"p61nting out of the place nice and straight" and that
~~-~- p~wer. cable "was going straight over to it from the swi tchbox,
like everything had been placed right there and lined up
to get rid of the water from the pump with the hose" (Tr. 128).

':

·Mr.

~;Smith believed that the violation was an "unwarrantable
faiitire" because the ·preshift mine examiner, who is also
the section foreman, examined the place. Since he is in the
area a minimum of two or three times a day, he should be aware
of the fact that pumps are installed in his working section
(Tr. 129) •

On cross-examination, Mr. Smith confirmed that simply
having a pump under unsupported roof is not a violation of
section 75.200, and he confirmed that he saw no one under

548

unsupported roof and that n_o one ever has advised him
that anyone walked under unsupported roof to place the pump
where he· found it (Tr. 130). Mr. Smith conceded that it
was possible for someone to place the pump three feet inby
the last row of roof bolts without going out under the
unsupported roof, and he explained that someone could have
"heaved it" out into the water (Tr. 131-132). He also
confirmed that the most efficient use for the pump would have
been to place it closer to the face where the water was the
deepest. He said that the pump was not operating when he
observed it, and his conclusion that someone had gone under
unsupported roof was based solely on his observation of the pump
in the location where he found it (Tr. 133).
Mr. Smith confirmed that at the time he issued the order
he was convinced that the pump had in fact been used on th~
previous shift, and his assumption was based on the fact that
water was present and the pump was attached to a nonpermissible
switch "set up in a position in which it could have been used."
He also confirmed that no one ever told him that the pump
was used in that location or that anyone ever intended to
use it at that location with a nonpermissible switch (Tr. 134).
Mr. Smith conceded that he subsequently became aware
of the fact that the crew who worked the shift knew that the
pump was not intended to be used until a permissible switchbox
could be installed. He denied that at the time he issued
the order that a permissible switchbox had been ordered to
be brought in from the surface and that it in fact came in
on the same mantrip which conveyed him to the section. He
indicated that when he found the pump he did not know that
it had been deenergized at the power center. He confirmed
that the incoming foreman on the shift when the pump was
found told him that he knew nothing about the pump or the
switchbox, and although the order was issued at the beginning
of the shift, the.preshift examination had already been
conducted. He did not examine the preshift books prior to
issuing the order, but the section was reported "safe" before
anyone went underground (Tr. 138-139).
In response to further questions, Mr. Smith stated
that after the order· was issued, mine management told him
that the pump was thrown inby the roof supports. He estimated
the weight of the pump at ninety pounds, but stated that he
has never attempted to pick one up and swing it, and no one
demonstrated the purported method of throwing it. He did
say that the pump has handles and that someone explained
that it was thrown and then stopped by means of jerking on
the cable. He believed that this was a bad practice because
the cable could be damaged.
In his opinion, however, the pump
was placed in the area where he found it, and he based this
opinion on the fact that "everything was lined up" and the pump
was not where the water would be over one's boots (Tr. 143).

549

Mr. Smith stated that the violation was abated by
removing the pump from the location where he observed it
and he confirmed that it was dragged out by means of the
cable and then picked up by the handles (Tr. 144). The
pump was removed so that the nonpermissible switchbox could
be replaced (Tr. 145). Mr. Smith also confirmed that at
the time he observed the pump,mining operations had been
completed in that crosscut and all of the machines had been
taken out. The pump was there just to pump water (Tr. 148).
Mr. Smith further explained the term "installation" as
follows (Tr. 148-149):
JUDGE KOUTRAS: This business of installing
the pump, how long would it take to do the
actual installation? I mean to put in the
line that takes the water out, put the pump
in and plug it up, get ready to go?
Approximately.
THE WITNESS: Momentary. Exposure under
unsupported roof, momentary. Just setp
out there and set it down and stip back.
JUDGE KOUTRAS: So, the term "installation"
and just placing it there are synonymous.
Right? The term "installation" doesn't involve
a whole lot of time, does it?
THE WITNESS: No. The discharge line would
be attached to the pump before you put it in
the water, and tighten the clamps up. Your
power cable is already attached. You would
just lift it up and step out there and set
it down and step back out.
In response to certain bench questions concerning the
general mine conditions where he issued the orders in these
cases, Mr. Smith testified as follows (Tr. 148-160):
JUDGE KOUTRAS: Did you examine the roof
conditions.in that area where the pump was?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:
JUDGE KOUTRAS:

I did.
And what did you find?
Good at that time.
Roof conditions were fine?

550

THE WITNESS: Were good at that time.
visually and sound.

*

*

Good

*

JUDGE KOUTRAS: Now, since that area was mined
out, would there have been any reason for any
miners to be in there?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

No.
Other than, possibly, the fellow -The mine examiner?

JUDGE KOUTRAS: -- that threw the pump, or placed
the pump, or installed the pump?
THE WITNESS: No reason for anybody to be in there
with the exception of the on-shift examiner and
the preshift examiner~

*

*

*

JUDGE KOUTRAS: On the switchbox now. Did you make
any determinations, or did you make any examination
of the ventilation in that area?
THE WITNESS: The ventilation was adequate, over
the switchbox and in the working place. Just
like it's drawn there it was all intact.
JUDGE KOUTRAS:
in there?
THE WITNESS:

Okay.

How were the roof conditions

Good.

JUDGE KOUTRAS: Were people working in that section
or in that room when you were there and found this
Citation?
THE WITNESS: No. I was in there alone when I
first went in there.
JUDGE KOUTRAS:
there?

Would mining have taken place in

551

THE WITNESS: Mining could not have taken place
in there, no.
JUDGE KOUTRAS:

Not at all?

THE WITNESS: Not until the roof was supported
and the water pumped out. They would have to
pump the water out, bolt the roof, and then they
could mine it.
JUDGE KOUTRAS: They were working outby where
those roof supports are. Right?
THE WITNESS: They were working over on the left.
It's marked as #9 room, is where the machine
would be working.
JUDGE KOUTRAS: Would they be working in the area
where the pump switch was located? The nonpermissible
pump switch.
THE WITNESS: No. I would see no occasion for
them to work in there, other than to, perhaps,
go in at a later time and move the pump in.
That's the only reason I could see them going
up in that crosscut to work. They'd have to go
in there for examinations. To do other work,
they wouldn't have any reason to go in there.
They couldn't do any work.
JUDGE KOUTRAS: What is the significance of the
three-tenths methane that you found?
THE WITNESS: Methane is being liberated on that
working section.
JUDGE KOUTRAS:

Well, how bad is three-tenths?

THE WITNESS: Three-tenths is bad. It's not bad
as long as it's being diluted and moved.
JUDGE KOUTRAS:
THE WITNESS:

But was it being diluted and moved?
At that time it was, yes.

JUDGE KOUTRAS: Well now, if the methane was being
diluted and moved, and there were no people working
in there, and the ventilation was in good condition,
if those were, in fact, the circumstances as you
found them that day, you still maintain that it
was significant and substantial?

552

THE WITNESS:

I do.

JUDGE KOUTRAS: And that's based on the fact that
what? That they had a nonpermissible pump inby
the last open crosscut, and in the event the roof
fell or they had some kind of emission in there
that was the right mixture of air and methane,
they could have had an explosion.
THE WITNESS: Based on the thinking that if you
were to have an interruption of ventilation in
that particular place. You see, what is not shown
on that drawing, we talked a little when it was
first put up, there are two ventilation controls
that are not shown on that drawing right there.
Where the arrow says, "to power center," you would
have had a run through check curtain there used as
a ventilation control. The pillar that the lift
has been started in #7 to 8 room also has a canvas
check curtain and line brattice installed as a
ventilation control right next to the gob. Along
that #7 room you've got your gob. You've got a
fall there. You have an additional fall.
Take
that line brattice and check curtain down. Your
air coming from 9 would go straight across. It
would not go up in there where the pump switch is.
It would short the air away from that, possibly.
JUDGE KOUTRAS: What led you to believe all those
things would have happened?
THE WITNESS: The potential was there. That's a
pillar section. They're retreating. That's
a retreat section, pillar section.
JUDGE KOUTRAS: I get the impression that you found
that it was significant and substantial because,
if you hadn't done anything, once they started up,
all these potentials could have come to pass, and
they could have had some kind of an accident.
THE WITNESS: I felt the potential was there, being
that close to the gob, workings.

*

*

*

JUDGE KOUTRAS: Did you have occasion to inspect
any of those power cables, the one going to the
power center, the one to the pump switch?

553

THE WITNESS:

They were in good condition.

JUDGE KOUTRAS: You found nothing wrong with the
cables insofar as any permissibility or anything
like that? The cables were in good condition?
THE WITNESS: The cables were in good condition.
The settings were proper for instantaneous trip
at the breaker. We looked at that.
In response to further questions concerning his
"unwarrantable failure" finding, Mr. Smith explained that it
was his opinion that the section foreman should have been
aware of what was going on in his section. When asked to
explain why he attributed the violation to a "prior shift,"
he explained that when he issued the order he did not know
who was responsible for the condition, but that he later
ascertained that the shift immediately prior to the one when
he found the pump had actually installed the pump. He identified
this shift as the midnight to 8:00 a.m. shift on June 1,
and that is when the actual violation took place (Tr. 153).
When asked whether he had spoken to the previous shift foreman,
he replied as follows (Tr. 153-154):
JUDGE KOUTRAS:
Did you speak to. the Foreman
on that shift, the 12 to 8 shift, before you issued
the Citation?
THE WITNESS:
JUDGE KOUTRAS:
THE WITNESS:

No.

He was gone.

He had left the mine completely?
At that time, yes.

JUDGE KOUTRAS: On a situation like this where
you have some circumstantial evidence that may
have occurred on the previous shift, would there
have been anything to preclude you from waiting
until you contacted that Foreman before you
issued the Citation?
THE WITNESS:
In this particular instance, with
this particular violation, I would say "No."
I think the facts were there.
The pump was there.
There were no temporary supports there. There were
no warning signs there to indicate the unsupported
roof.
JUDGE KOUTRAS: But the essence of the violation
is, assuming all that's correct, what you just said,
but the essence of the violation is that you
presumed that someone had walked under unsupported
roof to put the pump there.

554

·THE WITNESS:

Right.

JUDGE KOUTRAS: The only question I'm asking
you is, isn't the most logical way to determine
that fact to determine who was working on
that shift, who was responsible for putting the
pump there, and to contact those people before
you issued the Citation?
THE· WITNESS:

We don't generally do it that way.

When asked to further explain his "significant and
substantial" finding, ·Mr. Smith indicated that he was concerned
about the "practice" of miners working under unsupported roof.
However, he candidly conceded that he had no knowledge that
the operator in this case had such a "practice," and he again
reiterated his concern of a potential hazard, and while it may
may have extreme he indicated that it "could happen"
(Tr. 161-162).
Helen Mining Company's Testimony and Evidence
George Bondra, section foreman, testified as to his
background and experience, and confirmed that he was the
section foreman on the 12 midnight to 8:00 a.m. shift on
June 1, 1983, and he confirmed that exhibit J-3 depicts
the general area where he was working on that evening. He
stated that his crew was mining coal and pumping water at
the working face located at the 8 to 9 crosscuts. He identified
exhibit C-1 as the notes which he made in his own handwriting
that evening. He confirmed that a pump of the type shown
in exhibits J-3(A) and (B) which was used during his shift
at the crosscut of the 8 to 9 room where his crew was working.
He stated that the pump was used at the beginning of the
shift in the number 9 room, and that it had a permissible
switch attached to it. He then stated that when the pump
and switch were moved to the number 9 room, it was determined
that the switch had a broken lead inside and that this caused
it to malfunction, and could not be used.
Since no permissible
switch was available, a nonpermissible switch, which happened
to be available, was .used to run the pump. However, he
insisted that the nonpermissible switch was placed outby
the last open crosscut in the No. 9 room to pump water in
that room, and he indicated where it was placed and used
by making notations on exhibit J-3. He confirmed that the
nonpermissible switch was placed on two posts with a rubber
mat under it to insulate it from moisture and prevent electrocution
(Tr. 166-173) .

555

..

Mr. Bondra stated that the pumping of the water from
the No. 9 room with the nonperrnissible switch was completed
at approximately 5:00 a.m., and the pump was not used in any
other locations during his shift. The pump was taken out
of the way to permit the mining machine to move through
the area, and that "towards quitting time" he dragged
the pump, with the nonpermissible switch still attached, and
took it to the room where it was later found by the inspector.
He explained that he took it there so that the incoming foreman
would have a.head start on pumping the water in the area,
and he {Bondra} did not intend to use the pump to pump water
in that area and he expected no one else to because the pump
with the nonpermissible switch could not be used at the
location where it was found by the inspector {Tr. 175). He
confirmed that he did not replace the nonperrnissible switch
after leaving it at that location, but that he did order a
new one and the order was place when he first found that the
permissible switch which had been on the pump had a broken
wire. He identified exhibit C-2, as "a call our report" dated
June 1 indicating a "breaker for a pump box was ordered,"
and he confirmed that the word "breaker" and "switch" means
the same thing. He also indicated that the incoming foreman
should have seen this report as this is part of the standard
procedure {Tr. 177).
Mr. Bondra confirmed that he personally moved the pump
and switch in question to its new location at the end of .his
shift and that he deenergized it before moving it by unplugging
the cable from the power center and throwing the cable plug
some 6 to 8 feet from the power center {Tr. 180). He stated
that after moving the deenergized pump, he swung it out with
his arms where it landed "just inby that last roofbolt" and
he marked the location with an "x" mark on exhibit J-3. He
denied that he went out under unsupported roof when he did
this {Tr. 181). He stated that.if the roof had been supported
further, he would have put the pump in deeper water, but since
the roof was not further supported he did not want to take
the time to put up additional temporary roof support to do
this because it was late in the day {Tr. 182). He confirmed
that the permissible switch was not put on the pump because
the one he had ordered did not arrive until the next shift, and
he stated that he discussed this fact with the oncoming shift
foreman Lee Mitsko. He stated that the discussion took place
"outside, between the shift change," and that the conversation
took place in the foreman's room. He stated that this was
the usual procedure, and that he advised Mr. Mitsko that he
should not use the pump until such time as the permissible
switch was placed on it. Mr. Bondra stated that he did not
believe that leaving the pump with the nonperrnissible switch
on it between shifts was not illegal because it was not plugged
in or energized. He also believed that it would have been legal
to change the switches at the place where he left it, {Tr. 184).

556

On Cross-examination, Mr. Bondra stated that there was
an unusual amount of water. present in the section, that the
pumps are used to pump water, and that he did not inquire
as to the availability of a permissible switch on any other
section because "the other sections probably wouldn't have
one.
There is no water in the other sections" (Tr. 186).
He confirmed that while he could have taken the nonpermissible
switch off the pump before leaving it where he did, he did
not do so. He conceded that this may have made it easier
for the next foreman to replace the nonpermissible switch
with a permissible one, but he declined to do so because
he is not a qualified mechanic. Even though a mechanic was
present on his shift who could have done the work, he did not
have him remove the nonpermissible switchbox (Tr. 187).

Mr. Bondra did not know whether the oncoming foreman
actually reviewed his "call out report," and he confirmed
that his signature is not on it. Since Mr. Bondra was not
present on the ensuing shift, he did not know how the permissible
switch was installed. He stated that he did not tag the plug
out when he unplugged it from the power center, nor did he
ask anyone else to do it, because he was called away to
attend to a problem with the mining machin~ and "I let it
slip my mind" (Tr. 189). Mr. Bondra stated that in addition
to Mr. Mitsko, he also informed the section maintenance
foreman Greg Furey about the need for a new permissible switch.
Mr. Bondra also indicated that the "call out report" is
initially made to Mr. Furey before he calls out to make his
report (Tr. 189-190). He confirmed that his report to Mr. Furey
and the "call out report" are two separate reports because
he does not know if Mr. Furey actually makes a notation of
the report made to him on the section (Tr. 190).
In response to further questions, Mr. Bondra stated
that he first learned about the citation from his brother
later on the evening of June 1, 1983, but did not contact
Inspector Smith to explain the circumstance to him. However,
he did contact Mr. Skvarch and discussed the circumstances
with him (Tr. 193). Mr. Bondra also indicated that he did
not tell oncoming shift foreman !-iitsko that he had dragged
the pump and switch up the entry and left it at the location
where it was found by Inspector Smith because there was not
enough time to discuss it with him between shifts. However,
he did speak with him after the citation was issued and
Mr. Mitsko told him that he "had been raked over the coals
with the inspectors" (Tr. 197). When asked whether Inspector
Smith was wrong in assuming that the pump and switch had
been used, Mr. Bondra answered in the affirmative and he
explained that such switches are normally hung up or placed

557

on insulated material if they are to be used. Since the
switch in question was simply lying on.the floor and was
deenergized, Mr. Bondra was of the view that Mr. Smith
should not have concluded that it was used (Tr. 198-201).
Larry Plovetsky, mine mechanic and certified electrician,
testified that he has worked at the mine for over seven years
and is a member of the UMWA. He confirmed that he worked the
midnight to eight shift on June 1, 1983, and that George Bondra
was in charge of the crew. He confirmed that the pump in
question was first used in the cross of the 8 to 9 room and
that it had a permissible switch on it.
It was then moved
into the no. 9 room and in the process of moving it it was
damaged. He then installed a nonpermissible Westinghouse
switch which was available on the section, and he informed
Mr. Bondra that it could only be used outby the last open
crosscut. The pump was then used, and the switch was outby
(Tr. 206). At the end of the shift Mr. Bondra informed
him that he had disconnected the power and moved the pump
up into the crosscut of the i to 9 room so that the incoming
shift could install a new permissible switch and start pumping
the water out (Tr. 207).
Mr. Plovetsky stated that he first learned that the
citation had issued when he returned to work on his next,
shift on the following day.
The crew met with Mr. Skvarch,
and he asked them if they would make statements as to what
happened. He identified copies of certain undated statements
that he and several of the crew members signed (exhibits. C-3(a)
through C-3(d)), (Tr. 208). He confirmed that he was present
when they were signed by the crew, and he indicated this took
place on June 2, 1983, at approximately 4:30 p.m. (Tr. 210).
Mr. Plovetsky confirmed that the power on the section
was turned off when he left on the morning on June 1, 1983,
at the end of the shift, and that he saw the cable plug from
the pump and switch approximately 6 to 8 feet outby the power
center (Tr. 212). He stated that during his shift on June 1,
he saw the pump at the crosscut in question and that it was
being used to pump water. However, when he arrived early
on the shift the pump was off and he had to energize the
section after it was preshifted by Mr. Bondra (Tr. 213).
On cross-examination, Mr. Plovetsky stated that he did
not speak with any of the incoming crew on the 8:00 a.m.
to 4:00 p.m. shift about the pump and switch in question,
but that Mr. Bondra spoke with his boss about the fact
that the pump could not be used inby, and that he did so
when he called out for a new switch (Tr. 214). Mr. Plovetsky
confirmed that he was qualified to remove the nonpermissible
switch and replace it with a permissible one, but that this
was not done (Tr. 214).

558

In response to further questions, Mr. Plovetsky stated
that at the end of his shift on June 1, he locked out the
plug on the power center which is used for the shuttle car,
but since he had only one lock he could not lock out the
power center plug used for the pump and it was not tagged
(Tr. 216-217). When asked whether the inspector was wrong
in assuming that the pump was used, Mr. Plovetsky answered
as follows (Tr. 217):
JUDGE KOUTRAS: You heard me ask Mr. Bondra
about Mr. Smith's observation when he came on
this particular area. Do you have any corn.~ents
on that? He assumed, seeing that thing lying
there, that somebody was, either, using it or
was going to use it.
THE WITNESS: Well, seeing it lying there,
yes, I'd say you could assu:::ne that somebody
was using it. But then, if you'd have gone
back and seen how far that plug was thrown away
from the power center, you'd think otherwise,
too.
Dale Montgomery, respondent's assistant safety director,
testified as to his background and experience, and he confirmed
that he accompanied Inspector Smith ahd Mr. Smith's supervisor
during the inspection on June 1, 1983. He confirmed that while
he was "in the area," he was not present when Mr. Smith first
observed the conditions which he cited (Tr. 220). He testified
as to the normal :::nine procedure used for "call out reports," and
he confirmed that it is normal practice for the outgoing and
incoming foreman to meet and talk before the oncoming shift
goes underground. He confirmed that he, Inspector Smith, and
Inspector supervisor Bob Nelson rode the mantrip in together
with the day crew on June 1, and he stated as follows with
regard to the switchbox (Tr. 220-221):
Q. Other than the people you've indicated,
was there anything else on the mantrip?

A. From what I learned later on, and from
what I saw being carried to the section,
there was a permissible type switchbox for
a pump on the mantrip.
Q. So you saw it being carried to the section
from the mantrip?

A.

I saw it being carried to the section.

Q.

Do you recall who was carrying it?

559

A.

No, I do not.

Q.

Do you know what the switch was for?

A.
It's a typical pump switch. That's what it's
used for. As far as I know, that's all it is used
for, that type of a switch. Permissible type
switch.
On cross-examination, Mr. Montgomery stated that he did
not look at the "call out report" in question before going
into the mine the day the citation was abated, and he did
not know whether Mr. Mitsko had reviewed the report. He
confirmed that the report does not state that a nonperrnissible
switchbox was located at the face or working place (Tr. 223).
In response to further questions, Mr. Montgomery confirmed
that he was present when the nonpermissible switchbox was
replaced with a permissible one. He indicated that the
mantrip in question holds 18 men, and that he saw a permissible
switch being carried from the mantrip to the section, and
later found out that it was the same switch used to abate
the citation. He believed that Inspector Nelson may have
mentioned the fact that he saw the switch on the mantrip
(Tr. 225). Mr. Montgomery did not know whether Inspector Smith
saw the switch on the mantrip (Tr. 225).
Mr. Montgomery confirmed that he was not with Inspector Smith
at the time he first observed the cited condition, but was
with Mr. Nelson, and he explained what transpired as follows
(Tr. 226-228) :
JUDGE KOUTRAS:

Where were you and Mr. Nelson?

THE WITNESS: We were in the crosscut. In the
#8 room. Not the furthest one inby, the next
one.
JUDGE KOUTRAS: And, when the mantrip stopped,
and you all got off, you saw someone carrying
a box?
THE WITNESS:

Right.

JUDGE KOUTRAS: You didn't have the faintest idea
what they were doing with that box at that time?
THE WITNESS:

No.

JUDGE KOUTRAS: Sometime later in the morning,
when you encountered Mr. Smith, he told you
that he was issuing an Order and a Citation on

560

the nonpermissible switchbox, did lights
start flashing all of a sudden? Did you
say anything to Mr. Smith?
THE WITNESS: Well, he told me of what he
was issuing.
I, immediately, went up to._
the area and started drawing a diagram a~~
looking around myself.
',
JUDGE KOUTRAS: But, I mean, did you know,
at that point in time, that the switch that
was on that very same mantrip was being
brought in to -- ?
THE WITNESS:
realize it.

No, I didn't.

I didn't

JUDGE KOUTRAS: Am I to assume that if the man
that had the switchbox beat ~r. Smith to that
location and made the switch with the proper
switchbox, you wouldn't have got cited?
THE WITNESS: It's possible. If that's his
order, yes. If he were to replace it before
Mr. Smith would have got there.
JUDGE KOUTRAS: Now, when Mr. Smith issued
the Order, and informed you for the first time
that he was citing you for having this
nonpermissible switch in that location, was
there any discussion about the box that was
taken off of the mantrip?
THE WITNESS: Not at that time, that I can
remember, no.
JUDGE KOUTRAS: Okay. ae issued his Order
at 9:10, and, according to the Termination,
it was terminated at 12:15, which would have
been some three hours later. Right?
THE WITNESS:

Right.

JUDGE KOUTRAS:
done?

When was the actual abatement

THE WITNESS:
12:15.

It was just finished just before

JUDGE KOUTRAS: I mean, from the time that
Mr. Smith informed you that there was a Citation
and Order issued on that switchbox, when
were the wheels put in motion to make the
correction?

561

THE WITNESS:
Immediately. But, we had a
problem with that new switchbox also.
We couldn't get it to seal, from what I
understand. That's why it took so long.
JUDGE KOUTRAS: And were Mr. Smith and
Mr. Nelson there during all this?
THE WITNESS:

Yes.

JUDGE KOUTRAS: Did you explain to either
one of them what the situation was?
THE WITNESS:

No.

JUDGE KOUTRAS:

Why not?

THE WITNESS:

I didn't know.

Mr. Montgomery stated that he was not present when the
pump was placed inby the roof supports, but observed it in
that location and helped drag it out to abate the citation
(Tr. 229) •
Edward Skvarch, respondent's safety manager, testified
as to his mining background, education, and job responsibilities,
and he confirmed that he.is aware of the orders which were issued
on June 1, 1983, in these proceedings. He confirmed that he
was present at a manager's conference concerning the orders,
as well as a meeting at the mine concerning the "willful"
aspects of those violations. The latter meeting was held
on June 8, 1983, at the mine, and Inspectors Smith and Nelson,
and foreman Lee Mitsko were among those present. The meeting
was called to determine whether the nonpermissible switch
order was a "possible willful violation," and he believed
that Mr. Nelson requested the meeting to speak with Mr. Mitsko,
and Mr. Skvarch identified the notes which he took at that
meeting, ~xhibit C-4; Tr. 245-248).
Mr. Skvarch testified that his notes of the June 8, meeting
reflect that Mr. Mitsko was aware of the nonpermissible
switchbox, and that he was aware of the fact that it had to
be replaced (Tr. 249). Mr. Skvarch stated that he investigated
the events of June 1, in connection with the issuance of
the order, and that he did so in order "to determine whether
there was unwarrantability on the part of the 12 to 8 shift
foreman, George Bondra" (Tr. 250). Hie conclusions after
investigation was that there was no "unwarrantability" on
Mr. Bondra's part because the order stated that "a nonpermissible
pump was used to pump water in the crosscut 8 to 9," when
in fact his inquiry disclosed that the pump was not used to
pump water (Tr. 251).

562

Mr. Skvarch stated in addition to Mr. Mitsko's
statement that he was aware of the fact that the nonpermissible
pump needed to be replaced, he also relied on a signed
statement taken from mechanic Mark Decarlo on the Wednesday
before the hearing in this case, that Mr. Mitsko told him
they had a switch to take the section, and that either
Mr. Decarlo or Mr. Mitsko placed it on the mantrip, and
Mr. Decarlo carried it to the section, ~xhibit C-5; Tr. 252).
Mr. Skvarch also alluded to information he received from
production foreman Frank Hasychak indicating that he informed
Mr. Mitsko that a nonpermissible switch was on the section
and that he (Mitsko) "was to get it out" (Tr. 255).
Mr. Skvarch stated that as part of his investigation
he asked Mr. Bondra to denonstrate how he threw the pump
in question inby the last row of roof bolts, and that when
he threw it 3 1/2 to 4 feet inby, "that proved to me that
it was possible to do it" (Tr. 256). Mr. Skvarch was of the
opinion that it was "highly unlikely, or a remote probability"
that an accident could have occurred as a result of the cited
switchbox, because a series of events, i.e., electric current,
methane accumulation, would have to be present.
In this case,
however, the switch on the box was off, the switchbox and
pump were not energized, and there was no accumulation of
methane (Tr. 257).
On cross-examination, Mr. Skvarch confirmed that Mr. Bondra
and Mr. Decarlo were not present at the June 8, meeting with
the MSHA Inspectors, and he conceded that it was possible
that the meeting was called at the company's request, but
that he was not aware that this was the case (Tr. 260).
Mr. Skvarch stated that while he was in the mine at the
time the orders issued, he was not with Inspector Smith when
he issued them. Although he spoke briefly with Mr. Mitsko at
the time the nonpermissible switch was being replaced to abate
the orders, Mr. Mitsko did not tell him that he knew the
nonpermissible switch was there when he came into the mine
(Tr. 267) .
Mr. Skvarch testified that methane ignitions have
occurred in the mine in question, but that these all occurred
at the face on the mining cycle with the continuous mining
machine, and no such ignitions have ever occurred with a
nonpermissible pump switch (Tr. 271). He did not believe
these face ignitions to be "unusual," and indicated that
"it could occur with all due precautions taken. A face
ignition could still occur in a mine that liberates methane"
(Tr. 271}. He conceded that the untagged plug could have
been plugged in, and he explained why he did not believe
the violation to be unwarrantable as follows (Tr. 272-273}:

563

A.
I base my opinion on unwarrantability
on the basis of what was written on the
Order. And that was that the pump was
used, -- or, the switchbox was used to supply
power to that pump. And, I'm saying, based
on what was written on the Order, it isn't
unwarrantable because that wasn't the fact.
It was not used to supply power to that
pump.

Q.

So, in your opinion, in order for it to
be unwarrantable, it would have had to
have been used on the previous shift?

A.

Or, possibly, the day shift.

Inspector Smith was called in rebuttal by MSHA, and he
testified that when he first observed the cited conditions
he was by himself, but that he encountered Mr. Mitsko later
in the shift. After advising Mr. Mitsko that orders had
been issued, Mr. Mitsko advised him that he had not been on
the section since the previous Thursday, and when asked by
Mr. Smith whether "his buddy" had told him about the conditions,
Mr. Mitsko replied "no" (Tr. 288). Mr. Smith confirmed that
he made some notes about the violations, but did not indicate
whether they included the asserted conversation with Mr. Mitsko
(Tr. 288). Mr. Smith also confirmed that he first saw the
power center plug after the orders were issued and after
Mr. Mitsko tagged it out (Tr. 289-290).
When asked to comment on Mr. Bondra's testimony regarding
the use of the nonpermissible switch with the pump at another
location in the section, Mr. Smith stated that had he observed
this, he would have issued another order. He explained that
the location of that nonpermissible switchbox as noted by
Mr. Bondra, while outby the pump, was still within 150 feet
of the working pillar, and this would be a violation of mandatory
standard section 75.1000-1 or 1000-2 (Tr. 298-300).
Mr. Smith stated that after listening to Mr. Bondra's
explanation as to how the nonpermissible switch and pump
came to rest at the location where he found it at the time
he issued the orders, he was of the opinion that the story
was credible and that "it could have happened that way"
(Tr. 304). Mr. Smith also stated that he would not have
issued the citation for the pump being under unsupported roof
if Mr. Bondra had demonstrated to him how he threw it out
from under supported roof (Tr. 311-312).

564

Mr. Smith confirmed that he was at the June 8 meeting
or conference referred to by Mr. Skvarch, and after reviewing
a notation that Mr. Mitsko knew that he had to replace "a
pump starter box," Mr. Smith could not recall Mr. Mitsko
making that statement. Mr. Smith said that the only thing
he recalled Mr. Mitsko saying at that meeting was that he
did not know that a nonpermissible switchbox was in the working
place (Tr. 307).
With regard to the switchbox being brought in on the
mantrip, .Mr. Smith stated that he did not see it, but was
later told by Mr. Nelson that he had seen it on the mantrip.
Although Mr. Nelson was on the section at the time the orders
were issued, he was not with Mr. Smith when he observed the
conditions which caused him to issue those orders (Tr. 308).
He informed Mr. Nelson about the violations after starting
to walk down the entry with Mr. Mitsko, but Mr. Nelson did
not mention that he had seen the switchbox on the mantrip
(Tr. 308). When asked what he would have done had Mr. Nelson
mentioned it to him, Mr. Smith stated as follows (Tr. 308309) :
JUDGE KOUTRAS: Assuming that you had seen
the switchbox on the mantrip, and assuming
that that switchbox was, in fact, the one
to replace the nonpermissible box that you
found, would you still have issued the Order?
THE WITNESS:
JUDGE KOUTRAS:

Yes, sir, I would.
Why?

THE WITNESS: Like I said, the way the things
The facts that were there for me in the
crosscut 8 to 9, in my mind, that pump was
physically being used to pump water. There
was nothing to prevent it from being used.
JUDGE KOUTRAS: So, what you're saying is
that you came to the conclusion, through the
circumstantial evidence that you found,
that that pump was, in fact, used to pump
that water out. And that the switchbox was
part of the pump assembly for that purpose.
THE WITNESS: That's correct.
I believed
the pump was being used to pump water when I
saw it, yes.
JUDGE KOUTRAS: Now, on the Citation for
the pump being inby unsupported roof, of course,

565

at the time that you decided to issue the
Order, the significant and substantial
portion of it had long gone. Hadn't it?
I mean, what was so significant and substantial
about a pump just lying out there under
unsupported roof?
THE WITNESS: The fact that I felt a person
had, physically, gone beyond permanent
suppcrted room to place that pump in there.
JUDGE KOUTRAS: How was it reasonable and
likely that, if nothing happened, that an injury
would ,have occurred? If the unsupported roof
was sound, and you sounded it, and visible
inspected it, and the ~oof didn't fall, and
nobody was hurt. Was it the practice that you
were trying to address?
THE WITNESS: More or less, yes.
In that
particular case. The practice of going beyond
permanent roof supports to do it. Both, in
fact.
The pump was physically there, inby
permanent supports.
Robert G. Nelson, MSHA Supervisory Inspector, testified
that he was at the mine on June 1, 1983, and that he went
underground by means of an elevator and mantrip. He sat next
to a mechanic, and Inspector Smith was at the front of the
mantrip. Mr. Nelson stated that he observed a permissible
switchbox which the mechanic had with him, and they generally
discussed it. The mechanic advised him that he was taking
the switchbox into the D Butt Section to replace one which
had gone bad (Tr. 337}.
Mr. Nelson stated that he went to D Butt Section after
Mr. Smith's orders were issued, and that an hour or so later
he discussed the matter with Mr. Mitsko. Mr. Mitsko advised
him that he had not been on the section for a week, had no
knowledge of the conditions cited, and that he was surprised
about the orders which Mr. Smith had issued (Tr. 339).
M~. Nelson confirmed that he was at the June 8th.meeting
at the mine, and he recalled asking Mr. '1itsko some questions, but
did not remember specifically what he asked. Although he
couldn't recall Mr. Mitsko stating that he knew he had to
replace the switchbox, Mr. Nelson stated that "he could have"
(Tr. 341}. Mr. Nelson denied that he called the meeting,
and when asked who did, he replied "nobody" (Tr. 341). He
explained that he was at the mine for another reason, but
that someone advised him that Mr. Mitsko "had something to
tell us" (Tr. 341) .

566

On cross-examination, Mr. Nelson conceded that when he
spoke to Mr. Mitsko the respondent had been charged with
using a nonpermissible switch box to supply power in the
cited crosscut (Tr. 344). He confirmed that the June 8th
meeting at the mine resulted from an MSHA review of whether
or not a "willful" Section llO(c) citation should be issued
because of the nonpermissible switchbox situation. He
also confirmed that he spoke with production foreman Hasychak,
and that Mr. Hasychak expressed "surprise" over the presence
of the nonpermissible switch, and indicated that he had no
knowledge that it was used (Tr. 345).
In response to further questions from the bench, Mr. Nelson
.·stated that the purpose of the June 8th meeting was to talk
with the mine safety committee c·hairman, and that before making
any decision he wanted "to make a good review" (Tr. 351).
Mr. Nelson could not recall Mr. Mitsko stating that he had
knowledge of the switchbox in question, but indicated that
if he did he would not have given it much thought because
of his prior statement on June 1 that he had no knowledge
of it (Tr. 351). Mr. Nelson confirmed that he took no notes
at the June 8 meeting, and the meeting was not taped or otherwise
recorded.
He explained that "I was not interested in the
meeting" because he wanted to talk to the safety committee
chairman, and he believed that the decision not to file a
Section llO(c) citation may have already been made, and
indicated that "we just wanted to make sure" (Tr. 353).
Mr. Nelson stated that on June 8th, he met separately with
the safety committee, but that they had no input and "didn't
know very much about it" (Tr. 354).
Findings and Conclusions
Docket No. PENN 83-203-R
Fact of Violation
In this case, the inspector cited a violation of
section 75.200, when he observed a permissible water pump
located approximately three feet inb~ permanent roof supports.
The cited standard provides in pertinent part that no person
shall proceed beyond the last permanent support unless adequate
temporary support is provided. The standard also requires
a mine operator to comply with its approved roof control
plan, and the inspector testified that the cited condition
violated a safety precaution provision of the mine plan which
contained language similar to that found in the standard.

567

At the time he observed the cited condition, the inspector
saw no evidence of any temporary supports, and his order states
that the violation occurred on the previous shift, and that
it was evident that a person or persons had worked inby
the permanent roof supports. The basis for his belief that
someone had gone inby to perform some work was not only the
fact that the pump was there, but that it had "been installed."
He explained that water was in the area, the pump had been
"set up to be used," and he candidly conceded that his citation
was issued on the assumption that someone had gone beyond
permanent supports on the previous shift, placed the pump where
he observed it, and used it to pump water.
MSHA's counsel candidly recognizes the fact that the
asserted violation is based on circumstantial evidence, and that
the resolution of the matter depends on my assessment of the
credibility of the witnesses. As correctly stated by counsel,
the sole question as whether the section foreman's explanation
for the presence of the pump inby supports is a believable
one.
In support of her position, counsel argues that the
inspector testified that he never observed anyone throw
such a pump into a flooded area and that such a practice
subjects the equipment to strain which could result in damage
to its internal connections.
The fact that the inspector never observed anyone throw
a pump is irrelevant.
In this case, the inspector conducted
no experiment, did not attempt to pick up the pump, asked
no one to demonstrate it for him, and he confirmed that he
made no effort to contact anyone from the shift on which he
believed the violation occurred because he did not believe
it was necessary. It occurs to me that with a little more
investigative effort, the inspector would have been in a
better position to ascertain the facts. As for subjecting
the pump to strain by throwing it, the pump was described
as weighing 90 pounds, and I believe the word "heave" is a
better description. Further, the testimony in this case is
that the pump condition was abated by someone dragging it
out from under unsupported roof by pulling on the power
cable, and that this was done in the presence of an inspector.
Since no one inspected the pump in question, and since it
was permissible, there is no evidence that the pump was
damaged, and the practice of pulling it out by the cable
is more likely to place a strain on the connectors.
MSHA's counsel also argues that the inspector was not
informed that the pump had been thrown into the area until

568

some time after the issuance of the order. The short answer
to this is that he never asked. With respect to the argument
that the area was flooded and that the individual who
purportedly placed the pump.where it was found ventured no·
further for fear of getting his feet wet is so speculative
.. as to be rejected out of hand.
With regard to the argument that the pump was "installed,"
and the suggestion that it was obvious th~t great pains were
taken to "set up" the pump and water discharge line, the
inspector candidly conceded that the line is already attached
to the pump, that the purported "installation" would not
involve a lot of time, and that "one would just lift it up
and step out there and set it down and step back out" (Tr. 149).
Under the circumstances, MSHA's argument on this point is
given little weight. Photographic exhibits J-4-A and J-4-B
show the pump in question, and the person shown in the photograph
is lifting the pump by the handles. One photograph shows
the plimp being held by one hand, and the second shows it
being held by two hands.
Helen Mining's defense is that shift foreman Bondra
heaved the pump out for about three feet, or arm's length,
at the end of his shift, and that he did so to make it easier
for the oncoming shift to use the pump to dispel water.
Since no one observed anyone go under unsupported roof, I
find Mr. Bondra's testimony as to how the pump came to rest
where it did to be credible and believable. Mr. Bondra's
testimony is supported by Safety Manager Skvarch who confirmed
that Mr. Bondra demonstrated to him how he placed the pump
inby the permanent roof supports. Further, the inspector,
when called in rebuttal, conceded that Mr. Bondra's story
was credible and that "it could have happened that way."
The inspector also candidly admitted that had Mr. Bondra
demonstrated_ to him how he heaved the pump beyond the roof
supports, he would not have issued the violation (Tr. 312).
On the basis of all of the credible testimony in this
case, I conclude and find that MSHA has failed to prove a
violation.
The lesson to be learned from this incident is
that the failure to a~k questions, or to fully develop a case
when it is fresh on everyone's mind, will ultimately lead to
vacation of orders and citations for failure to prove the
charges by a preponderance of any credible evidence.
Accordingly, the order in question IS VACATED, and the contest
IS .GRANTED.

569

Docket No. PENN 83-202-R
This contest proceeding concerns a section 104(d) (1)
Order No. 2111719, issued by MSHA Inspector Lloyd D. Smith
on June 1, 1983, charging Helen Mining Company with a
violation of mandatory standard section 75.200. The inspector
was of the view that the approved roof control plan was
violated when he found that a warning sign had not been posted
at an area of unsupported roof. MSHA's civil penalty
proposal for this alleged violation is part of civil penalty
Docket No. PENN 83-232, and MSHA initially sought an assessment
of $100 for this violation. When this docket was called
for hearing, the parties advised that they proposed to settle
the matter by 'Helen Mining Company paying a penalty in the
amount of $50.
The parties were afforded an opportunity to present
their arguments in support of the proposed settlement on the
record, and I tak.e note of the fact that the inspector who
issued the order in question was present in the courtroom
and expressed agreement with the proposed settlement disposition
of this matter (Tr. 234-239).
After careful consideration of the arguments presented
on in the record in support of the proposed settlement, I
conclude and find that it is reasonable and in the public
interest. Accordingly, pursuant to Commission Rule 30, 29
CFR 29.2700.30, IT IS APPROVED.
ORDER
Helen Mining Company IS ORDERED to pay a civil penalty
in the amount of $50 in satisfaction of the section 104(d) (1)
Order No. 2111719, issued June 1, 1983, and upon receipt of
payment by MSHA, that portion of civil penalty Docket No.
PENN 83-232, IS DISMISSED.
In view of the approved settlement, Helen Mining Company's
counsel stated on the record, that he would withdraw the
contest (Tr. 239). Accordingly, contest Docket No. PENN 83-202-R,
IS DISMISSED.
Docket No. PENN 83-200-R
Fact of Violation
The inspector issued the citation in this case after
observing that a portion of the belt guarding used to prevent
entry into an area where a conveyor belt drive motor was

570

located lying on the floor and not nailed to a post where
it normally is. The fan blades of that motor are protected
by a metallic shroud which is attached to the motor housing.
At the time he observed the belt guarding lying on the floor,
he also observed that the lower portion of the shroud was
broken off. Photographic exhibits J-2-A and J-2-C clearly
show the motor shroud and belt guarding in question. Based
on testimony during the hearing, it would appear that the
shroud portion of the motor had broken off during transit
approximately five days prior to the inspection in question,
and that mine management had ordered a new shroud. While
awaiting the new shroud, the belting in question was nailed
across two posts as a means of keeping people out of the area.
The citation issued by the inspector specifically
charges that "a portion of the guarding provided at the 6
East Crossover belt drive on the clearance side was laying
in the mine floor." This seems to indicate that the citation
was issued because the inspector believed that the belt
guarding laying on the floor was obviously not securely in
place as provided by subsection (c) of section 75.1722,
and thus failed to provide adequate protection for the motor
in question. However, since he also stated in the citation
that the lower portion of the broken protective shroud
exposed the fan to possible entry, one could infer that this
condition also violated subsection (c). The inspector's
explanation of precisely what he had in mind seems to indicate
that the belting material nailed on the posts was placed
there as some sort of "signal" to preclude entry into
the area where the motor in question was located. When asked
whether he would still require the belt guarding even if the
shroud were not broken, the inspector suggested that the belting
may be necessary to protect other unspecified areas in the
proximity of the motor. When asked whether a citation would
have been issued had the shroud not be broken off, MSHA's
counsel stated "it would not with respect to the exposed moving
parts on this piece of equipment."
The parties stipulated that a guard was not securely
in place over the lower portion of the fan blades on the
drive motor in question. At page three of his posthearing
brief, Helen Mining's counsel states that the parties have
stipulated to the fact that there was a violation of section
75.1722(c) in that the belt guarding was not securely in
place. While I see a distinction in the two, since the
parties are in agreement that a violation did in fact occur,
I will not belabor the matter further.
The violation IS
AFFIRJ.\IBD.

571

Good Faith Compliance
The parties stipulated that Helen Mining demonstrated
good faith compliance in achieving abatement of the cited
condition after the citation was issued, I adopt this as
my finding and conclusion on this issue.
Size of Business and Effect of Civil Penalty on the Respondent's
Ability to Continue in Business
The parties stipulated as to -the size of Helen Mining's
coal mining operations, as well as the size of the mining
operations as its Horner City Mine. Based on the production
figures shown at page 5 herein, I conclude and find that
Helen Mining Company is a large mine operator.
The parties have stipulated that the assessment of civil
penalties in these proceedings will not affect Helen Mining's
ability to continue in business. I adopt this as my finding
and conclusion on this issue.
History of Prior Violations
The history of prior violations at the Homer City Mine
is reflected in a computer print-out for the period June 1, 1981
to May 31, 1983. That print-out reflects a total of 498
violations, eight of which are prior citations for violations
of section 75.1722(c).
MSHA advances no arguments concerning the mine compliance
record, and does not suggest that any penalty assessments
levied for the violation should be increased as a result
of this compliance record._ Although I am not persuaded
that eight prior citations of section 75.1722(c), indicates
a lack of concern for the guarding standard cited, I take
note of the fact that the computer print-out also includes
five prior citations for violations of guarding standard
section 75.1722(a). I also take note of the fact that 498
violations over a two year span is not a particular good
compliance record, and have taken this into account in
assessing the penalty for the violation in question.
Negligence and unwarrantable failure
The parties stipulated that the violation resulted
from ordinary negligence, and at pages 3-4, Helen Mining's
counsel confirmed that this is the case. However, at one
point in time during the hearing, the parties stipulated
that the guarding citation was not unwarrantable (Tr. 90) 7

572

and that the violation resulted from ordinary negligence
on the part of the contestant (Tr. 91) ~ Later, contestant's
counsel conceded that the violation was unwarrantable
(Tr. 98-99), and MSHA's counsel was of the opinion that a
showing of ordinary negligence was sufficient to establish
unwarrantability (Tr. 99). Contestant's counsel concurred
in this view (Tr. 100).
MSHA's posthearing arguments contain no further discussion
concerning the "unwarrantable" nature of the violation. The
aforementioned cited transcript pages are indicative of what
I believe to be inconsistent positions taken on the question
of "negligence" and "unwarrantable." In my view, these terms
are synonymous, and indicate a degree of negligence, and
if the parties agree that a finding of "ordinary negligence"
means unwarrantable, then so be it.
In view of the foregoing, I conclude and find that the
violation in question was an unwarrantable violation caused
by the respondent Helen Mining Company's ordinary negligence.
Gravity
The parties have stipulated that if an injury were to
occur as a result of the violation, it would be a serious
injury. Accordingly, I conclude that the violation was
serious.
Significant and Substantial
Relying on the Commission's decision in Secretary v.
Cement Division, National Gypsum Co., 3 FMSHRC 822 at 825,
(1981), MSHA 1 s counsel argues that the record contains
ample evidence to support a conclusion that harm or injury
was reasonably likely to occur as a result of the violation
in this case. In support of this contention, counsel states
that the inspector issued the citation when he observed that
the fan blades of the drive motor were only partially covered
by a broken shroud, and that a piece pf rubber belting,
which had previously been nailed. to a post and placed in front
of the exposed moving parts, was found lying on the mine floor
at the time the condition was cited. Since the inspector
testified that the rubber belting was wet and constituted a
"slipping hazard," and since he also testified that an employee
could fall directly into the moving fan blades, MSHA's counsel
concludes that she has established a "significant and
substantial" violation.
Helen Mining's argument that the violation was not
significant and substantial is based on the assertion that

573

(1) there is no evidence that any person had been or would
be exposed to the violation before the operator would have
discovered the condition and corrected it, and there is
no reason to believe that the guard had not been in place
during the previous shift; (2) few persons ever have had any
occasion to be in the immediate zone of the downed belt
guarding. Further, the area was not travelled by production
crews, and those persons who had business in the area would
use a "clearly defined" walkway which provided ample clearance;
(3) of the few persons who had occasion to come into the
affected area, only the belt examiner would have occasion
to do so when the equipment was running, and company policy
dictated that the equipment be locked out and deenergized if
maintenance work were performed; and (4) even if a person
were to approach the affected area when the equipment was
running, it would be unlikely that he would slip, trip, or
fall into the zone of potential harm.
Finally, even if somehow all of the foregoing conditions
were to occur simultaneously during the narrow window of
time before the condition could be discovered and corrected,
Counsel suggests that would still not likely cause an injury
because it is not reasonably likely that the slipping,
tripping or falling person would reach and come into contact
with the moving fan blades. Not only was the gap in the guarding
through which a person would have to fall just 2 feet wide
(26 inches) according to the inspector (Tr. 38-39), but it
was another 3 feet to the edge of the shroud at a minimum (Tr. 78).
Only a portion of the guard was down and the intact portion prevented
a person from contacting the exposed part of the fan blades
head on. The motor base restricted access to the exposed
portion of the fan blades from the sides and from below,
while the housing of the motor and the intact portion of the
shrouding limited the likelihood that a person falling into
the area would come into contact with exposed blades from
the top or side. As a result, it would take a concerted effort
by a person to contort himself to come in contact with the
fan blades (Tr. 64, 73; see Exh. J-1, J-2).
After close scrutiny of the testimony and evidence adduced
by the parties in support of their case, including their
posthearing arguments, I conclude and find that Helen Mining
Company has the better part of the argument that the cited
guarding citation was not significant and substantial. It
seems obvious to me that the citation was issued because the
inspector believed that the belt guarding material was not
in place at the time of his inspection. Given those facts, I
cannot conclude that anyone passing outby the posts, which
served to anchor the belting material could have inadvertently

574

fallen into the unguarded lower portion of the motor in
question, thereby becoming engangled in the moving fan. The
motor was located in an elevated position on a concrete
platform, the upper portion was guarded by a metal guard, and
the distance from the elevated concrete slab to the belt
guarding in question was such, that in my opinion, would take
a deliberate act to place someone in contact with the moving
blades.
On the facts of this case, I am convinced that the belt
guarding in question was placed there to serve as a warning
that inby that area there was a motor with a guard which had
been damaged, and that persons should avoid the area. In
these circumstances, the actual guarding device was the metal
grill work affixed to the motor itself, and not the belting
material. However, the cited condition, as described by the
inspector, clearly identifies the belting material, rather
than the metal grill work as the guarding device. Given these
circumstances, I am not convinced that the belt guarding, even
if it were in place, would have served any useful purpose
in preventing one from being caught in the exposed fan motor.
Therefore, the fact that the belting was not in place, is
not significant and substantial.
In view of the foregoing findings and conclusion, I
cannot conclude that MSHA has established that the violation
was significant and substantial. Accordingly, the inspector's
finding in this regard IS VACATED. I agree with Helen Mining's
proposed conclusion that the chain of circumstances which would
have to combine to cause an injury is too attenuated and the
probability of injury too remote to sustain a section 104(d) (1)
citation. Accordingly, the citation is modified to a section
104(a) citation, and as previously noted, the violation is
affirmed.
Docket No. PENN 83-201-R
Fact of Violation
In this case, Inspector Smith cited a violation of
section 75.SOO(a), after observing a nonpermissible switchbox lying in a room located in a working place inby the last
open crosscut. It seems clear to me that Inspector Smith
issued the order in question because he believed that the
nonpermissible switchbox in question had been used on the
previous shift in conjunction with the pump which he found
inby permanent roof supports. His citation states that the
switchbox was being used to supply electric power to the pump,

575

and while he had no direct evidence that this was in fact
the case, Mr. Smith's belief was based on circumstantial
evidence.
The applicable language found in section 75.500(a),
is as follows:
(a) All junction or distribution boxes
used for making multiple power connections
inby the last open crosscut shall be
permissible; * * *
In his posthearing brief, Helen Mining's counsel points
out that there is no disagreement that the switchbox in
question was nonpermissible and that the area where it was
found by the inspector was in fact inby the last open crosscut.
Counsel points out that where the parties disagree is whether
or not the switchbox was in fact used there.
In support of its position, Helen Mining's counsel points
to the fact that MSHA's evidence that the switchbox had.
been used was the fact that the deenergized box was found
there attached to the pump at the start of the next shift
(Tr. 105-109, 133-134, 308, 309).
In contrast, all of the
relevant testimony was that the pump had not been used there
with the nonpermissible switch (E.g., Tr. 170-174, 205-207, 251;
Exh. C-3) •
Counsel maintains that the uncontested evidence as
to the pattern of operations during the shift in question
belies any such inference: all of the relevant testimony
details Helen's compliance with the standard throughout the
shift, first in using a permissible pump in the 8 to 9
crosscut early in the shift, in keeping the switchbox outby
when using a nonpermissible switch in the 9 room, in ordering
the replacement permissible switch from the surface, and in
not even setting up the nonpermissible switch on the pasts
and insulated mat when it was taken over to the 8 to 9 crosscut at the end of the shift (E.g., Exh. C-1, C-2, C-3, C-5;
Tr. 170-171, 175-177, 202, 205-206).
Counsel also argues that credible weight should be
given to the statements of the UMWA miners as to compliance
with the standard at all times during the shift, and that in
the absence of any evidence to the contrary, Helen Mining is
entitled to the presumption of legality. Finally, counsel
suggests that MSHA has not proven that the standard was violated
by using the switchbox to supply power to the pump during
the previous shift, and that MSHA's speculative inference is
simply not enough to support the violation.

576

In response to MSHA's "theories" that liability should
nonetheless be imposed on Helen Mining because (1) the
nonpermissible switch was intended to be used there (Tr. 118);
(2) it could have been used there (Tr. 115, 118); (3) even
if it were not used there to supply power, it was "used" just
by the fact of being there attached to the pump (Tr. 112-115),
counsel states that MSHA's action must stand or fall on
the basis of the reasons stated by the inspector when he
issued the citation, and not by "inventive" posthearing
arguments by MSHA's counsel. Even if one were to consider
MSHA's post hoc arguments as legally cognizable, counsel
suggest there-Ts no evidence to support them.
In support
of this conclusion, counsel points to the fact that MSHA's
theory rests only on the inspector's supposition, derived
from the fact that the pump and switch were in the 9 and 9
crosscut and could have been used to pump the water out.
Further, even if they were, counsel asserts that the inspector's
supposition flies in the face of the evidence here that there
was no intent to use the pump until the permissible switch
which had been ordered from the surf ace and brought in at
the beginning of the shift had been installed (Tr. 134,
174, 183-184; Exh. C-3).
Helen Mining's counsel goes on to argue that MSHA's
"clever" reading of the standard to say that the very function
of "making multiple power connections" in the 8 to 9 room
was the proscribed use of the switchbox
must fail because
though multiple connections were arguably made (cable to
switch, switch to cable to pump), "multiple power connections"
were not made because it is abundantly clear that power was
never connected by means of the switchbox in question in
the cited crosscut. Further, counsel points out that the
pump-switch assembly was never energized since the power
plug was pulled at the power center before the unit was ever
taken into the crosscut and there is no evidence that it
was subsequently energized.
Finally, in anticipation of MSHA's arguments, as
developed by its discovery, that its Inspector's Manual states
a general MSHA policy that "A violation of section 75.500
exists whenever a unit of nonpermissible electric equipment
is taken into or used in or inby the last open cross~ut . • • ,"
counsel responds that MSHA may not interpret section 75.500
in this way. Aside from the tact that the standard does
not state this policy interpretation on its face, counsel
cites the language of subsection (b), (c) and (d) of section
75.500, which proscribes nonpermissible equipment taken into
and used inby the last open crosscut, and states that this

577

language "stands in stark contrast" to the language found
in subsection (a) that only the use of such nonpermissible
switchboxes is proscribed. CitIIlg several court decision,
counsel concludes that "where Congress has carefully employed
a term in one place and excluded it in another, it should
not be implied where excluded."
In support of its case, MSHA's counsel asserts that the
inspector issued the citation after observing that the pump
and switchbox in circumstances which led him to conclude
that the switchbox was used or was going to be used to rid
the area of excess water. MSHA concludes that since the
cable which led from the box to the power center had not
been "tagged out" or "dangered off" in any way, the inspector
further concluded that the nonpermissible switchbox was
readily available for use by any employee who wanted to
start the water pump.
MSHA cites the definition of "permissible" as follows,
as set forth at 30 CFR 75.2(i):
"Permissible" as applied to electric face
equipment means all electrically operated
equipment taken into or used inby the last
open crosscut of an entry or a room of
any coal mine the electrical parts of which,
including, but not limited to, associated
electrical equipment, components, and
accessories, are designed, constructed, and
installed, in accordance with the specifications of the Secretary, to assure that
such equipment will not cause a mine explosion
or mine fire, and the other features of which
are designed and constructed, in accordance
with the specifications of the Secretary, to
prevent, to the greatest extent possible,
other accidents in the use of such equipment
• • • (Emphasis added. )
MSHA asserts that the inspector made a reasonable
inference from the conditions he observed upon entering the
place that nonpermissible equipment was used in violation
of section 75.SOO(a). Further, MSHA suggests that even if
the inspector's conclusion regarding the use of the box
was erroneous, the presence of the nonpermissible box inby
the last open crosscut, where it was admittedly used to
connect two power cables, is sufficient to establish a
violation.

578

MSHA contends that section 75.500(a) clearly prohibits
the operator from locating a nonpermis~ible junction or
·distribution box "used for making multiple power connections"
inby the last open crosscut.
In this case, MSHA maintains
that the box was, in fact, used to make two power connections,
i.e., one power cable connected to the box and leading to
the pump and one power cable connected to the box and leading
to a location at or near the power center. The fact that
the power cables were not energized at the time the inspector
saw the condition does not change the fact that both were
connected to the nonpermissible box which was located inby
the last open crosscut.
MSHA maintains that its position is further supported
by the definition of permissibility cited above. It refers
to "all electrically operated equipment taken into or used inby
the last open crosscut • • • including, • • • associated
electrical equipment, components, and accessories • • • "
This definition goes on to state that the purpose of such
permissibility requirements is:
• to assure that such equipment will
not cause a mine explosion or mine £Ire;
and the other features of which are designed and constructed • . • to prevent,
to the greatest extent possible, other
accidents in the use of such equipment
• • • (Emphasis added).
In response to Helen Mining's argument that there was
no violation because the pump was not operating, the cables
were not energized, and the pump had not been used on the
previous shift, MSHA submits that this interpretation would
not assure the prevention of the very hazard which the standard
is designed to prevent. The condition observed by Inspector Smith
posed a definite risk of mine fire or explosion because the
power connections were made and management failed to insure
that the improper equipment would not be energized while
in the high-risk location of the working place.
Conceding that there are no reported Commission decisions
·interpreting section 75.500(a), MSHA suggests that the
Commission has considered issues raised by operators in similar
contexts which do offer some guidance in this case. Counsel
cites Secretary v •. Eastover Mining Co., 2 FMSHRC 1638 (1982),
where the.Commission considered the circumstances under which
a violation of 30 CFR 75.507 occurs. That standard requires
that "except where permissible power connection units are
used· all power-connection points outby the last open crosscut
shall be in intake air." In Eastover a pump control box
with nonpermissible connection points was located in return
air. The operator claimed that since the equipment was not
energized, a violation was not established.
In upholding
the violation, the Commission explained:

579

• • • mer~ly finding a (nonpermissible)
power-connection point in return air does
not necessarily absolve an operator simply
because it is nonenergized.
In such cases,
a violation may occur if the equipment
has been, is about to be, could be,
or habitually was, operated in return air.
Cf. Solar Fuel Company, 3 FMSHRC 1384
(1981) (Emphasis added) •
Counsel points out that in the instant case the inspector
was of the opinion that the pump had been used with the nonpermissible box, and that the box could be used and in fact,
was readily available for use. Counsel maintains that this
was not a situation where an isolated electrical component
was inadvertently placed inby the last open crosscut,
unconnected to any equipment or power source.
The operator
did not demonstrate with any assurance that this nonpermissible
box "could not or would not have been energized."
Counsel cites two Commission decisions where it was
held that the word "used," when found in a mandatory standard,
should be interpreted to mean "could be used" as well.
Secretary v. Ideal Basics Industries, 2 FMSHRC 1243, 1244
(1981); Secretary v. Solar Fuel Company, 2 FMSHRC 1359, 1360
(1981). Counsel suggests that these decisions indicate that,
in view of the very serious hazards posed by the use of
nonexplosion proof equipment in locations where methane may
be emitted, the standard should be interpreted in such a
manner that assures prevention of the harm. Counsel concludes
that Helen Mining's interpretation of the cited standard is
extremely technical and would permit a result that is
inconsistent with the intent of the regulation.
By letter dated February 7, 1984, Helen Mining's counsel
takes issue with MSHA's posthearing arguments concerning
the applicable definition of the term "permissible."
Counsel argues that since the separate requirements set
forth in section 75.500(b) through (d), all address equipment "taken into or used inby the last open crosscut," the
cited definition of the term "permissible" as found in
section 75.2(i), and as relied on by MSHA would apply to
any citations for violations of those subsections. However,
since Helen Mining here has been cited with a violation of
subsection (a) of section 75.500, which requires that boxes
used for making multiple power connections inby the last
open crosscut to be permissible, counsel asserts that the
definition found in section 75.2(c) (1) is applicable in
defining the term "permissible" as used in section 75.500(a).
That definition states as follows:

580

(c) 'Permissible' as applied to--(1)
Equipment used in the operation of a coal
mine, means equipment, other than permissible
electric face equipment, to which an approval
plate, label, or other device is attached
as authorized by the Secretary and which meets
specifications which are prescribed by the
Secretary for the construction and maintenance
of such equipment and are designed to assure
that such equipment will not cause a mine
explosion or a mine fire.
In the Eastover Mining Company case, supra, although the
Commission affirmed the Judge's holding on the facts of the case,
it specifically rejected the Judge's broad construction that
a violation of section 75.507 always occurs whenever nonpermissible
power connection points are located in return air r~gardless
of the circumstances. The Commission emphasized the fact
that the purpose of the standard was to prevent methane gas
explosions caused by sources of ignition, such as arcing
from power connections.
The Commission observ~d that the
arcing of power connection points is only possible if the
equipment is energized or can be energized. The Commission
went on to explain that a violation may occur if the equipment
has been, is about to be, could be, or habitually was, operated
in return air.
The facts in Eastover Mining are similar to those in
the instant case, and these are explored by the Commission
as follows at 2 FMSHRC 1638-1639:
We now apply the preceding principles
to the facts of this case, based on the
record as developed below. There is no
question that the pump control box was
not energized when the inspector issued
the order. The foreman who placed the
equipment in the return air during the
shift prior to the one during which the
inspection occurred testified that there
was not enough cable to connect the pump
to the power center. He also testified
that he was familiar with the regulation
and would not have left the control box
in the return air if it were engerized.
In this case it is claimed that the
unit was not in fact located in the return
air but was simply placed there temporarily
until it could be moved to intake air.

581

In other words, it is contended that the
location.was merely an interrupted transit
to another position where it would be
located as required by the regulation.
Nevertheless, the record does not contain
a satisfactory explanation of why the control box was left in the return air. Nor has
Eastover completely dispelled our concern that
the only reason the pump control box was not
energized in return air was because the
connecting cable was too short -- a 'problem'
which unfortunately suggests an original intent
to energize in return air and a possible intent
to 'remedy' the situation by means other than
moving the control box into intake air. We
will not, however, indulge in speculative
hypotheses. The record before us does not
allow us to say with assurance that Eastover
clearly showed that the equipment could not
or would not have been energized in return air.
Our concern is underscored by the undisputed
facts that the mine had a history of methane
liberation (the major danger in the event of
arcing) and .1 to .2 volume percent of methane
was found at the working place when the order
was issued.
MSHA makes the point that the switchbox plug was not
"tagged out" or otherwise "dangered off." Even if it were, I
suspect that MSHA would still argue that a violation occurred.
As a matter of fact, in Eastern Associated Coal, 1 FMSHRC
2209 (1979) , the Commission ruled that even though a mine
operator placed a "danger tag" on a piece of equipment which
had been cited for an inoperable parking brake, a violation
still existed since the equipment remained operable in a
working area. The Commission ruled that tagging out the
piece of equipment did not abate the violation because:
We hold that tagging the jitney was not
sufficient to withdraw the jitney from
service because the danger tag did not
prevent the use of the defective piece of
equipment.
The jitney was still operable
and the danger tag could have been ignored.
In Ideal Basic Industries, 2 FMSHRC 1242, 1243 (1980),
the Commission held that:

582

If equipment with defects affecting
safety is located in a normal work area,
fully capable of being operated, that
constitutes 'use'. Here, at the time
of the inspection, the mobile was parked
in a usual location, right next to the
area where railroad cars - which the mobile
is used to move - are loaded. It was neither
rendered inoperable nor in the repair shop.
To preclude citation because of "non-use"
when equipment in such condition is
parked in a primary working area could
allow operators easily to use unsafe
equipment yet escape citation merely by
shutting it down when an inspector arrives.
Although on the facts of this case, we are not dealing with
equipment "defects," the construction of the term "use" is
pertinent in the context of nonpermissible equipment.
In Solar Fuel Company, supra, the Commission interpreted
the application of section 75.503, which requires a mine
operator to maintain in permissible condition electric face
equipment which is taken into or used inby the last open crosscut.
The Commission reversed the Judge's ruling that the "intent"
to take such equipment is not controlling, and that in order
to establish a violation it must be shown that an operator
did not maintain in permissible condition equipment which
was taken into or used inby the last open crosscut. In
reversing, the Commission emphasized the fact that the requirements for maintaining such equipment "permissible" is to
assure that mine fires or explosions do not occur. Thus,
the Commission reasoned that the emphasis "is not where
equipment is located at the time of inspection, but simply
whether it is equipment which is taken or used inby." The
Commission then concluded that section 75.503 applies not
only to equipment which has been taken inby the last open
crosscut when inspected, but also to equipment which is
intended to be or is habitually taken or used inby, even if
it is inspected while located outby.
·
The term "face equipment" is defined at pg. 407 of
the Mining Dictionary as "mobile or portable mining machinery
having electric motors or accessory equipment normally
installed or operated inby the last open crosscut in an entry
or a· room." In this case, the electric pump, powered by a
motor and the switchbox in question, fits the definition
of electric face equipment, and the parties concede that
it is the type of equipment covered by the cited standard.

583

A "switch" is defined by the Mining Dictionary, 1968
Edition, at pg. 1111, as a "mechanical device for opening
and closing an electric circuit." The term "connection box,
electrical," is defined at pg. 251 as "a boxlike enclosure
with removable face or plate within which electric connections
between sections of cable may be made."
There is no credible evidence to prove that the nonpermissible switchbox ~n question was in fact used to supply
power to the permissible pump at the location where the
inspector observed it. The pump was not energized or pumping
water when he observed it, and he had no reason to believe
that the cable plug was plugged into the power center or
tagged out because he did not walk down to the power center
before deciding to issue the order. His belief that the
pump had been used on the prior shift, with the switchbox
supplying the power, was based on circumstantial evidence,
and MSHA has not rebutted Mr. Bondra's explanation as to
the circumstances concerning the use of the pump and switchbox
in question. Mr. Bondra's explanation is corroborated by
the testimony of the electrician and mechanic (Plovetsky) ,
and the inspector himself conceded that Mr. Bondra's
explanation was plausible. Further, the circumstances
surrounding the ordering and delivery of a replacement
permissible switchbox lends credence to Mr. Bondra's explanation.
Although the unsworn statements of the miner's offered
by Helen Mining's counsel are self-serving, the prior
statement by Mr. Plovetsky is consistent with his testimony.
W1th regard to the other statements, they were made available
to MSHA in advance of the hearing as part of the discovery
process, and MSHA had an opportunity to subpoena the miners
if it had reason not to believe their statements.
In any
event, the statements concerning the actual use made of the
pump and switchbox in question add nothing to the testimony
of~record in this case.
-~ _ In this case, Helen Mining is charged with using a
non-permissible switchbox to supply power to a permissible
pump ·-purportedly used to pump water on a shift prior to
the one where the cited conditions were observed by the
inspector. On the basis of all of the credible evidence
and testimony adduced in this proceeding, I conclude and
f-ind that Helen Mining has rebutted MSHA' s circumstantial
case, and has established that the switchbox and pump in
ques±ion were not in fact used to pump water as charged
by the inspector in this case. However, given the language
fDund in·section 75.500(a), which is different from that
found in subsections (b) , (c) , and (d) , as well as in

584

section 75.507, the question presented is whether these
prior interpretations in the context of the cases cited herein
are equally applicable to the facts presented in this case.
MSHA recognizes the fact that the prior cases considered
by the Commission concern interpretations of the words
"taken into or used." Had the inspector in the instant
case cited Helen Mining with a standard using those words,
I would be constrained to find that MSHA has established a
violation in that the nonpermissible switchbox was taken into
an area which was inby the last open crosscut. As a matter
of fact, Helen Mining stipulated that the box in question
was located in the working place, inby the last open crosscut
at the time the inspector observed it.
The regulatory language found in subsection {a) mandates
that boxes used for making multiple power connections inby
the last open crosscut shall be permissible. Thus, the
critical question presented is whether or not MSHA has
established that the switchbox was used for making a multiple
power connection during the prior shift, as charged in the
violation.
Since I have concluded that MSHA has not established
that the switchbox was used to supply power to the pump
on the previous shift, logic dictates that I make the same
conclusion and finding with respect to this question. However,
before reaching that conclusion, a review of the Commission's
prior interpretations of the permissibility regulations found
in the cited cases is in order.
As I read the prior Commission rulings in the cited cases
relied on by MSHA in support of its case, it seems clear
to me that the Commission believes that the intent of any
permissibility regulation is to assure that all possible
temptation to use nonpermissible equipment inby the last
open crosscut be removed by an interpretation that practically
prohibits the physical taking of such nonpermissible equipment
inby the last open crosscut, regardless of whether "it is
used," "interided to be used," "habitually used," or "ready
to be used."
Helen Mining maintains that since the definition of
"permissible" found in 30 CFR 75.2{i), includes a reference·
to electric face equipment taken into or used inby the last
open crosscut, it may only be applied to citations based on
subsections {b), {c), and {d) of section 75.500, because
those subsections contain those very same words, while the
cited subsection {a) does not. Helen Mining asserts that
the proper definition for "permissible," in the context
of an alleged violation of subsection {a) , is that fo~nd in
30 CFR 75. 2 (c) (1).

585

On the facts of this case, the nonpermissible switchbox
in question was characterized as "nonpermissible" because it
was not constructed as an approved explosion proof device
which has MSHA's "seal of approval." While there was some
testimony that a wire or connection had become damaged when
the box was dragged to another location during the beginning
of Mr. Bondra's shift, that fact alone did not render the
box in question "nonpermissible." Thus, on the facts here
presented, regardless of which definition is applied, MSHA's
arguments with respect to the intent and purpose of the
permissibility regulations referred to in this case are well
taken. Both definitions take into account the fact that the
required permissibility parameters for the design, construction,
and maintenance of such equipment are intended to assure
that such equipment will not contribute to a mine fire or
explosion.
Helen Mining's argument that a multiple power connection
had not been made because the power cable had not been plugged
into the power center is rejected. While it is true that
the inspector did not know whether the ·power plug was actually
plugged into the power source at the time he observed the
switchbox and pump, Mr. Bondra confirmed that he did not
tag or "danger off" the plug when he left the switchbox and
pump for the next shift.
On direct examination, Mr. Bondra testified that he
informed incoming foreman Mitsko that he needed a switch
for the pump and that he should not use the pump until the
new switch was installed {Tr. 184). He claimed that this
conversation took place between the change in shifts.
However, in response to my questions, Mr. Bondra testified
that he did not tell Mr. Mitsko that he had left the pump
with the nonpermissible switch attached to it at the location
where it was found by the inspector, nor did he tell him
that he had not plugged in the power. When asked why,
Mr. Bondra responded that there was not enough time {Tr. 197).
I find it rather incredible that section foreman Bondra
could not find the time to pass on this information to
Mr. Mitsko. In view of Mr. Bondra's previous explanation
that he left the pump and switchbox where he did without
tagging out the power plug because "he did not have time,"
I suggest that in the future he reexamine his priorities and
take the time to carry out these supervisory details.
Mr. Bondra's testimony confirms Inspector Smith's
testimony that Mr. Mitsko advised him that the power plug
had not been tagged out, and since Mr. Bondra did not discuss
the matter with Mr. Mitsko before the switchbox and pump were

586

discovered by the inspector, it also supports Inspector Smith's
assertion that Mr. Mitsko had no knowledge that the switchbox and pump were left by Mr. Bondra.
Further confirmation that the power plug was not tagged
out came from the mechanic, Mr. Plovetsky. He also confirmed
that he could not lock out the power at the power center
at the end of the shift when Mr. Bondra left the switchbox
and pump because he had no lock-out device. Further, even
though he was qualified to remove the nonpermissible switchbox,
Mr. Plovetsky did not do so, nor did he speak to any of the
incoming shift personnel to notify them that the switchbox
and pump were left by Mr. Bondra, and that the power plug
and power source were not locked out.
In view of the foregoing circumstances, while there is
no direct evidence that the nonpermissible switchbox was
used on the prior shift, I am not convinced that Helen Mining
has established that the pump and switchbox could not or
would not be energized and used by the oncoming shift at
the location where it was left by Mr. Bondra. In addition,
I am not persuaded by the self serving disclaimer statements
compiled by mine management to defend the citation, and they
are rejected as a defense.
It seems to me that with a little
more attention to their duties, Foreman Bondra and Mechanic
Plovetsky could have, and should have, either removed the
switchbox, or at least secured the power source by obtaining
a lock-out device, or tagging out the plug. By leaving the
pump and nonpermissible switchbox, with the cable untagged,
and with the power source not locked out, they did precisely
what the Commission expressed concern about in Eastover Mining Co.,
Ideal Basic Industries, and Solar Fuel Company, supra.
Accordingly, I conclude that the interpretation and application
of the language "used for making multiple power connections"
as found in section 75.500(a), should be precisely how the
Commission interpreted the word "used" in the Eastover Mining
Co. case, as well as the other cases cited by MSHA in support
of the violation. All that was necessary here to energize
the pump and switchbox was for someone to plug in the cable
to the power source, and I am not convinced that Helen Mining
has demonstrated with any assurance that this was not the
case. Accordingly, I conclude and find that MSHA has established
a violation of mandatory standard 30 CFR 75.500(a). The
section 104(d) (1) Order No. 2111718, IS AFFIRMED, and the
Contest IS DENIED.
Significant and Substantial
Helen Mining agrees that if an injury were to occur
as a result of the alleged violation, it could reasonably

587

be expected to result in a potentially serious injury.
However, its defense to the inspector's· "significant and
substantial" findings is based on the argument that
only an examiner and the person moving the pump would have
any occasion to be in the area on an infrequent and brief
basis, and that the possibility of an accident would be
extremely remote.
At page 34 of his posthearing brief, Helen Mining's
counsel cites several hearing transcript references to support
his assertion that the oncoming foreman (Mitsko) and his
mechanic (Decarlo} were the only people who would energize
the switchpump assembly. Counsel asserts that they had
been told that they had to replace the switch before they
could pump water. Mr. Mitsko is deceased and Mr. Decarlo
did not testify.
Mr. Plovetsky's testimony is that the oncoming mechanic
and foreman were the only persons who should be responsible
for energizing the power cable (Tr. 217-218). However,
Mr. Plovetsky testified that he said nothing to anyone
from the oncoming shift about the facts surrounding the power
cable. Mr. Skvarch's testimony, at Tr. 249-255, simply
recounts the information he developed during his investigation
of the order, and it seems clear to me that he simply relied
on Mr. DeCarlo's prior self-serving statement that he was
to take the new permissible switchbox into the section.
Further, the statements of the miners on the 12:00 to 8:00
shift, exhibits C-3-B, C-3-C, and C-3-D, attesting to the
fact that the pump was not used on their shift, and that
they knew that a new switch had been ordered, is not relevant
to what the oncoming shift would have done.
Likewise,
the statements by the miners listed in exhibit C-3(e),
that it was not their job to operate pumps, and that they
would not energize one if they thought i t was illegal to do
so is not persuasive. I conclude that since the pump and
switchbox were placed and located in such a position as
to .. make them readily available for use by someone merely
plugging in the power cable, the possibility of this happening
was not remote.
This is particularly true where it appears that
the area in question was flooded, and that the pump may have
previously been used to pump water in the same area where
the inspector found it when he happened on the scene.
Although it may be true that the amount of methane detected
by the inspector when he observed the pump and switch was
not particularly substantial, given the fact that the mine
does liberate a million cubic feet of methane in a 24 hour
period, should there be any interruption to the ventilation,

588

the use of a nonpermissible switchbox would present an ignition
source if the pump were inadvertently energized. Since there
was a realistic potential present that someone could have
inadvertently plugged in the pump and switch to begin pumping
out the water which was present in the area, I conclude
that there was a real potential for an accident, and Helen
Mining's assertions to the contrary are rejected. I conclude
and find that MSHA has established that the violation was
significant and substantial, and the inspector's finding
in this regard IS AFFIRMED.
Unwarrantable Failure
Helen Mining's arguments that the violation was not an
unwarrantable failure ARE REJECTED. I agree with MSHA's
posthearing proposed findings and conclusions that the facts
and circumstances in this case support a conclusion that the
violation resulted from Helen Mining's unwarrantable failure
to comply with the cited standard. In my view, Section Foreman
Bondra's actions in creating the conditions which resulted in
the violation, when combined with his failure to take reasonable
steps to insure that the switchbox in question was either
tagged out or removed, clearly demonstrate to me that he knew
or should have known of the violation, and that in these
circumstances, he failed to exercise due diligence to prevent
the conditions which the inspector reasonably concluded
amounted to a violation. Contrary to Helen Mining's arguments,
Mr. Bondra's conduct is attributable to Helen Mining, and I
conclude and find that it should be held accountable for this
conduct. I adopt MSHA's posthearing proposed findings and
conclusions on the question of "unwarrantable failure" as
my findings and conclusions on this issue, and the inspector's
finding in this regard IS AFFIRMED.
History of Prior Violations
As indicated earlier, Helen Mining's history of prior
violations for the period June 1, 1981. to May 31, 1983,
reflects a total of 498 prior violations. However, I take
note of the fact that this listing reflects no prior citations
for violations of mandatory standard 30 CFR 75.SOO(a), and
I have taken this into account in the civil penalty assessment
for the violation in question.
Good Faith Compliance
The record establishes that once the order issued Helen
Mining achieved timely abatement of the violation in question,
and I have considered this in the civil penalty assessed
for the violation in question.

589

Size of Business and Effect of Civil Penalty on the· Respondent's
Ability to Continue in Business
The parties stipulated as to the size of Helen Mining's
coal mining operations, as well as the size of the mining
operations at its Homer City Mine. Based on the production
figures shown at page 5 herein, I conclude and find that
Helen Mining Company is a large mine operator.
The parties have stipulated that the assessment of
civil penalties in these proceedings will not affect Helen
Mining's ability to continue in business.
I adopt this as
my finding and conclusion on this issue.
Gravity
I conclude and find that the circumstances concerning
this violation presented a reasonable likelihood of an
injury or an accident, and that the failure by Helen Mining
to insure that the nonpermissible switchbox was not removed
from the area in question, and was permitted to remain
without locking out the power source or tagging out the plug
constituted a serious violation.
Negligence
I conclude and find that the failure by Section Foreman
Bondra to see to it that the switchbox was removed from the
area inby the last open crosscut, or to at least see to it
that the power cable plug was tagged out or the power source
locked out indicates a reckless disregard for the safety
of the oncoming crew.
It seems clear that even though
Mr. Bondra and the mechanic working on his same shift
(Plovetsky), had an opportunity to do so, they did not take
reasonable steps to insure that the switchbox would not be
used, nor did they inform the oncoming crew that the switchbox
and pump were left in a location where anyone could reasonably
have believed that it was ready to be energized and used to
pump out the water which was in the area. In these circumstances, I conclude and find that the violation resulted
from gross negligence, and this is reflected in the civil
penalty assessed by me for the violation in question.
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 following civil
penalty assessments are appropriate for the violations
which have been affirmed:

590

PENN 83-200-R
Citation No.
2111715

Date
5/25/83

30 CFR Section

Assessment

75.1722(c)

$375

30 CFR Section

Assessment

75.500(a)

$2800

PENN 83-201-R
Order No.

Date

2111718

6/1/83

ORDER
Helen Mining Company IS ORDERED to pay the civil penalties
assessed by me in the amounts shown above within thirty (30)
days of the date of these decisions, and upon receipt of
payment by MSHA, these cases are dismissed.

Distribution:
Thomas c. Means, Esq., Crowell & Moring., 1100 Connecticut
Ave., N.W., Washington, DC 20036 (Certified Mail)
Catherine o. Murphy, Esq., U.S. Department of Labor, Office
of the Solicitor, 3535 Market St., Philadelphia, PA 19104
(Certified Mail)

/slk

591

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400 .
DENVER, COLORADO

SECRETARY OF LABOR,
MINE SAFETY AND HE.l\.LTH
ADMINISTRATION CMSHA},
Petitioner

..
..
.
.
.
.
...

v.

ALLIED CHEMICAL CORPORATION,
Respondent

80204

MAR 61984

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 80-217-M
A.C. No. 48-00155-05030
Docket No. WEST 80-292-M
A.C. No. 48-00155-05038 I
Docket No. WEST 80-299-M
A.C. No. 48-00155-05039
Docket No. WEST 81-28-M
A.C. No. 48-00155-05058
Docket No. WEST 81-32-M
A.C. No. 48-00155-05061 V
Docket No. WEST 81-332-M
A.C. No. 48~00155-05077 I
Docket No. WEST 81-405-M
A.C. No. 48-00155-05085
Alchem Trona Mine

DECISION
Appearances:

Stephen Kramer, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioner;
John A. Snow, Esq., Vancott, Bagley, Cornwall,
and McCarthy, Salt Lake City, Utah,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
These consolidated cases arise under the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et~ In each case, the
Secretary seeks to have a civil penalty assessed for an alleged
violation of a mandatory safety standard.
An evidentiary hearing was held in Green River, Wyoming.
Based upon the entire record and considering all of the arguments
of the parties, I make the following decision. To the extent that
the contentions of the parties are not incorporated in this
decision, they are rejected.
ISSUES
The principal issues presented in this proceeding are: Cl}
whether respondent has violated the provisions of the Act and .
implementing regulations as alleged in the proposal for assessment
of civil penalties filed in these proceedings; and, if so, (2) the
appropriate civil penalties that should be assessed against the

592

respondent for the alleged violations based upon the criteria as
set forth in section llOCi> of the Act. Additional issues raised
by the parties are identified and disposed of in the course of this
decision.
In determining the amount of a civil penalty assessment,
section llOCi) of the Act requir~s consideration of the following
criteria: Cl> the operator's history of previous violations, (2)
the appropriateness of such penalty to the size of the business of
the operator, (3) whether the operator was negligent, (4) the
effect on the operator's ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after
notification of the violation.
STIPULATIONS
The parties stipulated to the following:
1.

Respondent is the owner and operator of the Alchem Trona

mine.
2. The products produced by the said mine enter and effect
commerce.
3. All of the above cited cases, except for Docket No. WEST
No. 80-217, are governed by the provisions of the Federal Mine
Safety and Health Act of 1977 and are properly before the Federal
Mine Safety and Health Review Commission.
4. That if penalties are assessed in these cases, it will not
affect respondent's ability to continue in business.
5. The respondent has two million, thirteen thousand and
twenty five man hours annually and is considered a large ;nining
operation.
6. The Mine Safety and Health Administration CMSHA)
inspectors involved in the above cited cases were duly authorized
representatives of th~ Secretary of Labor (Secretary) at all times
relevant herein.
7. In respect to Docket No. WEST 80-217-M, in the twenty four
months prior to September 25, 1979, 251 violations were assessed
against the respondent.
8. In Docket No. WEST 81-32-M, 482 violations had been
assessed against respondent.
9. In Docket No. WEST 81-405-M, 350 violations had been
as·sessed against respondent in the 24 months preceding June 9,
1981.

59.3

Docket No. WEST 80-217-M
Citation No. 575879 (A)(B)(C)(D)(E)(F)(G)
Petitioner issued a type 107(a) and 104Ca> order alleging
violations of several mandatory safety standards in a fuel storage
area being used by Peter Kiewit and Sons Construction Company (Exhibit GX-1). The facts in this case show that the fuel storage
area is located on property owned by Church and Dwight Co. Inc.
This property is adjacent to the property where the Alchem Trona
Mine CAlchem mine) operated by the respondent is located. The fuel
storage area was being used by Peter Kiewit and Sons, an independent contractor working at the Alchem mine when the order was
issued (Exh. GX-7). Based upon this record and subsequent to the
hearing, the Secretary has filed a motion to dismiss Docket No.
WEST 80-217-M with prejudice citing the Commission's decision in
Secretary v. Phillips Uranium Corp., 4 FMSHRC 549. The Secretary
stated that he felt the decision in Phillips, supra is controlling
on the facts in this case. I agree. Docket No. WEST 80-217-M is
ordered dismissed with prejudice.
Docket WEST 80-292-M
Petitioner alleges respondent violated 30 C.F.R. § 57.9-3 when
an accident occurred at the Alchem Mine causing serious injuries to
a miner. The cited standard provides as follows:
Mandatory. Powered mobile equipment shall
be provided with adequate brakes.
Citation No. 336642 issued in this case states that the
respondent's LBT lube truck was not provided with operable brakes
and that the emergency brake was disconnected. The unit moved
ahead and injured a miner working between the lub truck and a
continuous miner.
The Secretary originally proposed the assessment of two
penalties in this case as follows: Citation No. 336642A for
violation of 30 C.F.R. § 57.9-3 and proposed a penalty of
$7,000.00 and Citation No. 336642B for violation of 30 C.F.R.
§ 57.9-37~/ proposing a penalty of $3,500.00.

1/ 57.9-37 Mandatory. Mobile equipment shall not be left
unattended unless the brakes are set. Mobile equipment with wheels
or tracks, when parked on a grade, shall be either blocked or
turned into a bank or rib; and the bucket or blade lowered to the
ground to prevent movement ..

594

At the hearing, the parties moved that the Court approve a
settlement in this case of $5,000.00 to be divided equally between
the two alleged violations. The Secretary stated that it was his
belief that he could not show a direct connection between the
violation and the accident to establish a high degree of negligence
in this case. However, it was believed that there is some degree
of negligence involved in order to justify the proposed amended
penalty of $5,000.00. Based upon a review of the record in this
case and the representations of the parties, I find the proposed
settlement is in accord with the Act. The stipulated agreement and
motion of the parties is granted and penalty amounts of $2,500.00
each for citation Nos. 336642A and 336642B are approved.
WEST 80-299-M
Citation Nos. 336643 and 336644
In this case, petitioner alleges respondent violated 30
C.F.R. § 57.21-78. The cited standard provides as follows:
Mandatory. Only permissible equipment maintained
in permissible condition shall be used beyond the last
open crosscut or in places where dangerous quantities
of flammable gases are present or may enter the air
current.
During an investigation of an accident at respondent's Alchem
Mine, MSHA inspector Melvin Jacobson issued citation Nos. 336643
and 336644 charging that two non-permissible vehicles were operated
in the last open crosscut.
Jacobson testified that he observed a lubrication truck and a
maintenance vehicle located south of 96+23 crosscut in the 5 south
entry of panel F-Main south of the Alchem Mine (Transcript at 4).
This part of the mine consisted of seven entries 2/ which are referred to in the testimony as rooms, numbered from east to west as
one Cl> through seven (7). The mining process used in this
particular mine is a room-pillar method.
In the section where the
violations are alleged to have occurred, there were two crosscuts.
The most northerly was designated as crosscut 96+23 and the next
crosscut to the south nearest the face as crosscut 97+23. Both
crosscuts. were driven through the seven rooms except for crosscut
97+23 which crosscut had not been completed or opened between rooms
5 and 4 (Exh. GX-13).
On the day of the accident prompting this inspection, the lube
truck had entered the F-Main South panel coming from the north
traveling south through room 3. At crosscut 96+23, it turned left
~/

An underground passage used for haulage or ventilation.

595

and traveled .to room 5 where it ~as parked in the intersection of
room 5 and crosscut 96+23 at a right angle in front of the
continuous miner. The lube truck remained in this location for
approximately 40 minutes with its engine running at a fast idle to
provide power to run a compressor used to dispense material for
servicing the continuous miner. The truck rolled forward pinning a
miner between the truck and the continuous miner. After the
accident, the lube truck was backed into room 5 just south of
crosscut 96+23 near a maintenance truck also parked in the area.
{Tr. at 8 thru 11 and Exh. GX-13). At the time the accident
occurred, the mine was not in operation and only maintenance work
was being performed {Tr. at 40).
The petitioner contends that the two trucks involved herein
were not permissible equipment and were inby the 96+23 crosscut in
room 5 and that this crosscut was the last open crosscut at this
particular location in panel F-Main South {Petitioner's Brief at
1).

Respondent denies this and contends that crosscut 97+23 at
room 5 was the last open crosscut in this section of the mine
{Respondent's Brief at 7, 8).
The condition or practice cited by Inspector Jacobson in the
two citations allege that the two pieces of non permissible
equipment were being operated "in the last open crosscut." The
cited standard § 57.21-78 states that only permissible equipment
shall be used beyond the last open crosscut or in places where
dangerous quantities of flammable gasses are present. At the
hearing, the inspector testified that he observed both vehicles
"parked beyond the last open crosscut in room 5" {Tr. at 4).
Although the wording of the two citations is not explicit as to the
violation alleged to have occurred, there is no doubt from the
evidence presented at the hearing and the arguments in the post
hearing briefs that both parties understood the issues.
The threshhold issue is which crosscut, 97+23 or 96+23 at room
5, was the last open crosscut. There is no disagreement as to the
fact that the two vehicles were both non permissible equipment
under the Act or that after the accident, they were parked in room
5 south of crosscut 96+23.
Neither the Act or the metal and nonmetallic underground
standards define the term "last open crosscut." The term
"crosscut" is defined in the Bureau of Mines, U.S. Department of
Interior, A Dictionary of Mining, Mineral and Related Terms, {1968)
p. 280, as follows:
aL A small passageway driven at right angles to
the main entry to connect it with a parallel entry
or air course . . . . f.
1n room and pillar mining,
the piercing of the pillars at more or less regular

596

intervals for the purposG of haulage and ventilation.
Synonym for breakthrough. Kentucky, E..:_ 332. 9..!_ In
general, any drift driven across between any two
openings for any mining purpose. Bureau of Mines Staff.
Some clarity of the term last open crosscut can be derived
from the standards that apply to underground coal mines. The
common usage of various terms in the mining industry, although not
necessarily universal, often applies to both coal and metal and
nonmetallic mines.
30 C.F.R. § 75.503 provides in part as follows:
"The operator of each coal mine shall maintain in permissible
condition all electric face equipment .•• which is taken into or
used inby the last open crosscut of any such mine."
The distinction here is that the coal standard states "inby
the last open crosscut" whereas the standard cited in the present
case reads, "beyond the last open crosscut." I do not believe the
drafters of the standard intended a distinction here. Nor did the
witnesses who testified at the hearing or the parties in their
briefs contend a different meaning for they regularly referred to
the location of the equipment as "inby" the last open crosscut
rather than beyond. Accepting the term "inby" as common to the
indu$try, this can give assistance in establishing the location of
the last open crosscut in this case. The above also applies to the
term "outby. 11
The term "inby" is defined by the DMMRT, p. 527 as follows:
a. Toward the working f~ce, or interior, of the mine;
away from the shaft or entrance; *** b. In a direction
toward the face of the entry from the point indicated as
the base or starting point. c. The direction from a
haulageway to a working face ***. d. Opposite of outby.
[Emphasis added.]
The term
follows:

11

outby 11 is defined by the mining dictionary as

a. Nearer to the shaft, and therefore away from the
face toward the pit bottom or surface; toward the mine
entrance. The opposite of inby. Also called outbyeside.
B.C.I.; Fay. b. In a direction toward the mouth of the
entry from the point indicated as the base or starting
point.
The mining dictionary referred to above defines the term
"face" in pertinent part as "the solid surface of the unbroken
portion of the coalbed at the advancing end of the working place,"
"a point at which coal is being worked away," or "a working place
from which coal or mineral is extracted."
In one of the earlier cases decided under the 1969 Act, the

597,

former Board. of Mine Operations J\ppeals defined the term "inby the
last open crosscut" and in so doing affirmed a judge's ruling that
it means "inby the interior-most rib or wall." In this case the
term exterior rib line was defined to mean the line of the wall
closest to the portal of the mine. Mid-Continent Coal and Coke
Company, 1 IBMA 250 (December 29, 1972).
The face of F-Main South section was located a short distance
south of crosscut 97+23 CExh. GX-13). Inspector Jacobson testified
that the last open cr6sscut for rooms 1 through 4 and 6 through 7
was crosscut 97+23. He further stated that he believed 96+23 was
the last crosscut for room 5 as there was not an opening between
rooms 4 and 5. CTr. at 12).
I do not find this argument by Inspector Jacobson and the
Secretary persuasive as to this issue. It is not consistent with
the other rooms in this section of the mine.
If the reason is that
room 5 at 97+23 is only three sided, so is room 7, room 4 and 1.
Yet, Jacobson has indicated on Exhibit GX-13 by drawing in blue
dotted lines to show the outby edge of the last open cross cut as
extending along 97+23. Only in room 5, does he distinguish this
difference without other explanation than the cut was not made
through between 4 and 5. I reject the Secretary's argument. The
definitions of a crosscut indicates it is a passageway at right
angles to the main entry, and being 97+23 is the last crosscut
driven at right angles from the face of room 5, it is the last open
crosscut at that location.
The Secretary further argued in his brief that great weight
should be given to the Mining Enforcement and Safety Adminis~
tration's Assistant Administrator's interpretation of 30 C.F.R. §
57.21-78 as contained in a memorandum dated November 8, 1974 and
the testimony of Inspector Jacobson relative thereto (Sec. Br. at 4
and Exh. GX-13A). In this memorandum, the contention is that the
last open crosscut is a return airway for ventilating air and only
permissible equipment shall be allowed in or beyond the last open
crosscut. This is because it is a place where flammable gasses are
present or may enter the air current.
I do not find that this argument is valid. It is well settled
that inspectors' guide lines and manuals do not have the status of
official mandatory safety standards. See Kaiser Steel Corporation,
3 IBMA 489, (1974), King Knob Company, Inc., WEVA 79-360 (June 29,
1981). The "policy" statement instructing inspectors to cite
equipment in the last open crosscut as it is a return airway is not
consistent with the wording of the standard which refers to
non-permissible equipment beyond the last open crosscut.
In this case the Secretary referred to the above memorandum
and argued that the location where the cited equipment was observed
was a return air flow (Sec. Br. at 5, 6). The most credible
evidence of record does not support this argument. The facts

598

established that the ventilation system at this location in the
mine, and as· shown on Govern~entis Exhibit GX-13, has fresh air
traveling up room 5 towards the face. After sweeping the face, the
return air is exhausted through vent tubing or ducts. There are
six fans pulling the air through these ducts, one fan in room 1 and
7, and two fans in room 2, and 6 (Tr. at 16 and 55). There is no
evidence that the cited pieces of equipment were in a return air
course.
Petitioner further contends that the respondent had a
recirculation problem in this section of the mine The most
credible evidence of record fails to supp~rt this claim. At the
time the citations were issued, :'\ISHA inspector Potter moni tared
methane in the immediate area and found there was none (Tr. 37).
· Jacobson testified to some reports and data regarding a recirculation problem at respondent's mine. However, this data referred
to a period of time prior to the accident and another period of ·
time two and half years after the citations were issued which is
not shown to have been relevant or material to these citations.
Charles McLendon, respondent's chief engineer, who holds a
degree in mining engineering, testified that he did not believe
methane would accumulate at the intersection of room 5 and crosscut
96+23 for the reason that any methane at the face would be removed
through the vents and the fans would prevent any recirculation (Tr.
at 80-82). I find this testimony more credible than that of the
inspector as it is based upon tests performed by the party
responsible at the time for the ventilation system in the mine.
The inspector's opinion was basea upon outdated data and
speculation.
In view of the foregoing findings and conclusions, I find the
petitioner has failed to establish violations of section 57.21-78,
as charged in citation Nos. 336643 and 336644, and order that these
two citations are vacated and petitioner proposal for assessment of
civil penalties dismissed.
Docket Nos. WEST 81-28-M and WEST 81-32-M
The above two cases are related as they involve the same
alleged defective part in respondent's cited No. 16 man trip. In
Docket No. WEST 81-28-M, MSHA inspector Merrill Wolford issued
Citation No. 575827 on April 18, 1980 alleging several violations
of 30 C.F.R.§ 57.9-2 which standard provides as follows:
Mandatory. Equipment defects affecting safety shall
be corrected before the equipment is used ..
In the citation, the inspector stated as follows:
The #16 mantrip has the idler steering control arm worn
out. The flexible U joint to the steering gear has a

599

broken bolt and (sic> lose.

The right front spring
The accelerator pedal is
missing. The brake lights are inoperative and Csic)
only one taillight works. This vehicle was voluntarily
taken out of service by Safety Engr. to be repaired
(Exhibit GX-14).
brac~et is worn egg shaped.

In Docket No. WEST 81-32-M, inspector Wolford observed on May
9, 1980, respondent's No.16 mantrip operating in the F-28 panel and
determined that the previously cited steering idler control arm
ball joint had not been repaired. Wolford issued 104Cb) 3/ Order
No. 576844 in which he again alleged a violation of 30 C.F.R. §
57.9-2 and stated as follows:
Citation t0575827 was issued on the #16 mantrip for
safety defects on 04-18-80 with a termination date of
1600 hrs. on 04-25-80. This mantrip was observed being
used in F-28 panel on 05-09-80 still with a badly worn
and Csic) loose steering idler control arm ball joint
which could cause the driver to lose control. This
vehicle is used to haul men and (sic) materials about
1 mile from the #2 shaft to the F-28 panel work area.
This vehicle had been voluntarily taken out of service
by the Safety Engr. to be repaired on 04-18-80. This
vehicle is now ordered removed from service until
properly repaired.
In Docket No. WEST 81-28-M, citation No. 575827, the
petitioner proposed the assessment of a penalty in the amount of
$725.00.
In WEST 81-32-M, petitioner filed a proposal for penalty
alleging that citation 576843 was issued for a violation of 30
C.F.R. § 57.9-73 and proposed a penalty in the amount of $1,200.00.
Section 57.9-73 provides "Mandatory. Defective equipment, removed
from service as unsafe to operate shall be tagged to prohibit
further use until repairs are completed."
At the commencement of the hearing involving these two cases,
the parties entered into a stipulation in which the respondent
admitted all violations alleged in citation No. 575827 except for
that which pertained to the subject ball joint. The respondent

ll

104Cb) provides in part as follows:

If, upon any follow-up inspection ••• an authorized
representative of the Secretary finds Cl) that a violation
described in a citation issued pursuant to subsection (a) has not
been totally abated within the time originally fixed therein or as
subsequently extended, and (2) that the period of time for the
abatement should not be further extended, he shall •.• promptly
issue an order.

600

agreed to pay the proposed penalty of $725!00 in settlement of all
the other violations. It was fu~ther agreed by the respondent that
if a violation was found regarding this ball joint, the penalty
could be increased. As to WEST Bl-32-M, order No. 576843, if a
violation is found as to the subject ball joint, an additional
penalty can be assessed in this case (Tr. at p. 6, 7, 8 and Resp's
Br. at 2). Following the hearing the respondent submitted a brief.
The Secretary decided to waive his right to submit a post hearing
brief stating he.would rely upon the arguments presented at the
trial. ·
The threshold issue in this case is whether the ball joint in
the idler steering control arm oE the No. 16 mantrip was defective.
If so, did it affect safety?
The No. 16 mantrip is a vehicle assembled from various
automative components for use in mines. The front end is from an
International Scout II (Tr. at 70). The alleged defect cited in
this vehicle is a part of the front end and specifically described
as the worn condition of the ball joint of the idler steering
control arm (Tr. at 13). The operation and function of the idler
steering control arm is to attach the shaft of the steering
assembly to the wheel of the mantrip so that the wheel turns when
the steering wheel is operated. It was only the one ball joint of
this assembly closest to the steering wheel alleged by the
inspector to be defective (Tr. at 17, 18).
Inspector Wolford testified that when he observed the front
end of the No. 16 mantrip on May 9, 1980, the ball joint lacked any
dust cover or grease sealer, and that the grease fitting referred
to as a "zerk" was missing. He observed that there was no
lubrication in the joint CTr. at 19 and Exhibit GX 15-B). Further,
that the housing around the ball joint appeared worn in an egg
shape and the nylon bushing material that was used as a liner had
come out of the drag link housing CTr. at 27, 28).
Wolford testified that the worn condition of the ball joint
would affect steering of the vehicle and might under the right
circumstances come apart or break. The No. 16 mantrip is used in
the mine to haul eight to nine miners in and out of the working
areas. It is also used to transport supplies. At the Alchem mine,
the vehicle is used underground in confined areas over rough
surfaces. A loss of control of the vehicle could cause it to go
into a rib and roll over. The vehicle is not supposed to be
operated at speeds of over 15 miles per hour and probably would not
go over 25 miles per hour (Tr. at 33, 34).
An examination of the drag link was made on April 16, 1981
by Kazimir Niziol, a mining engineer with MSHA's Safety and Health
Technology Center in Denver, Colorado. Niziol issued a written
report in which he described the cited ball joint to be in very

601

poor condition with the grease fitting and dust cover missing and
containing no trace of grease. He stated that the ball stud was
extremely loose in all directions being approximately~ 1/8 inch to
3/16 inch. Also the drag link was bent into an S shape. In this
report Niziol stated his conclusions as follows:
The steering system of any vehicle is an important
safety consideration. Any damage, deterioration or
excessive wear to steering components is extremely
dangerous. When such conditions are found to exist, the
worn parts should be immediately replaced or the vehicle
removed from service. rJoose pins, ball joints or any
other loose parts increase front wheel impact and also
result in loss of control of the vehicle even at low
speeds. The draglink examined exhibited such wear and
was considered to be dangerous particularly since the
vehicles operate underground in confined conditions and
on rough surfaces. CExh. GX-15).
The respondent argues that although MSHA proved the ball joint
was loose, it did not show that it was a defect that in any way
actually affected the safe operation of the mantrip CResp's. Br. at
4). In support of this position, it points out that the inspector
did not attempt to drive the mantrip or try the steering mechanism
under operating conditions to determine if the wheels would
"chatter" or the ball come out of the socket.
In support of respondent's position, William C. Adler, a
foreman for Allied at the Alchern mine, testified he had driven the
No. 16 mantrip during April and May, 1980, and that he had not
experienced any problems with the steering {Tr. at 151). James N.
Ingram, a civil engineer employe·:i in Allied' s reliability
engineering department, testifie1 that he had supervised tensil
tests of the steering assembly ball joints conducted at the
University of Wyoming in May 1981. Three ball joints were tested
including the one cited here, a new ball joint, and one selected at
random off of a similar mantrip. The conclusion was that the cited
ball joint was essentially as strong in tensil strength as the
others tested and did not fail until the application of 15,700
pounds {Tr. at 103 and Exh. R-3). Ingram also tested the amount of
loads or pressure which would be required to cause failure of the
other parts of the steering assembly rather than the base joint.
He testified that the other parts would fail before the subject
ball joint {Tr; at 73, 74 and 76-78).
I have carefully reviewed and considered the testimony,
exhibits, and brief submitted in this case and conclude that there
was an equipment defect involving the subject ball joint on the No.
16 mantrip.
This case presents a classic example of two experts presenting
directly opposite views on the question at issue here. However,

the uncontroverted evidence establishes that the subject ball joint
showed wear, was without a grease zerk, and lacked lubrication.
The amount of movement of the ball in the socket and its
·
transference to the wheels is disputed but its existence is not
denied by the respondent. The fact that the joint was worn is
admitted by respondent. However, it is argued that it was not
proven that it was defective (Resp. Br. at 8).
The term defect is defined in Webster's Third New
International Dictionary (1976 Ed.) at p. 591 as follows:
1. An irregularity in a surface or a structure
that spoils appearance or causes weakness or failure7
2. want or absence of something necessary for completeness, perfection, or adequacy in form or functions.
As stated previously, I find from a careful review of all the
evidence in this case that the subject ball joint was defective.
Also, I am persuaded that the most credible evidence supports
petitioner's argument that the defect to the ball joint in the·
steering mechanism could affect safety. Even assuming, that the
mantrip does not travel over 15 miles per hour, as argued by the
respondent, the fact remains that the vehicle is hauling eight to
nine miners underground in a confined area over rough terrain where
the steering mechanism of the vehicle is vital to stability and
direction. I am not persuaded that the tensil tests performed on
the ball joint as reported by James Ingram would refleet the danger
that exists from the ball joilits condition as described by all the
parties. The tensil strength would determine the metals ability to
withstand certain forces. However, the looseness in the steering
and the deterioration of the ball joint from lack of lubrication
seem to me to be vital in this case.
Respondent has cited the case of Medusa Cement Co., 1 MSHRC
2454, (May 1980)(ALJ), in support of its position in this case. I
find that there is a distinction between the facts of these two
cases which effect the final conclusion. In the Medusa case,
supra, the Judge found that the defect, a broken bushing, would not
adversely affect the control of the grader involved and render it
unsafe to operate. Further, there was only the one miner, the
operator, exposed to any risk. It is also noted that in Medusa,
the Judge. distinguished his facts from those in Phelps Dodge
Corporation, 1 FMSHRC 2018 (Dec. 1979)(ALJ) wherein Judge Merlin
decided that a violation of 55.9-2 occurred when a truck was not
safe when it was found all the lugs on a wheel were loose. The
distinction here is whether the equipment defect would affect .
safety and based upon two different fact situations, a different
conclusion was reached.
In light of the stipulation entered by the parties regarding
Docket No. WEST 81-28-M, I find that the penalty already agreed
upon in the amount of $725.00 should be raised by the amount of

603

$75.00 for the violation of a defective ball joint making a total
penalty to be $800.00.
Docket No. WEST 81-32-M
As stated at the beginning, the parties agreed that if I
should find a defective ball joint in the prior case affecting
safety, an additional penalty may be assessed for the violation
alleged in citation No. 576843. I find that the evidence shows the
respondent was negligent in failing to repair the defective ball
joint after it had been cited under citation No. 575827. The
citation read that the respondent had voluntarily taken the
equipment out of service by the respondent's safety engineer to
have it repaired (Ex. GX-14). The evidence of record shows that
all the other defective parts were repaired but the ball joint was
not repaired which subsequently required the vehicle to return to
the shop several times for mechanical work (Exhibits GX-15, F and
G). These complaints all related to the steering mechanism. Upon
the inspector's return approximately two weeks later, the repair
work was still not accomplished.
I am not persuaded that a penalty of the size originally
proposed by the Secretary is warranted in this case. The facts
suggest that the respondent did not determine that replacement of
the part was necessary. It would appear that the defect was not
corrected because of a failure of communication and not through an
attitude of defiance.
I find that a penalty of $100.00 is appropriate in this case.
Docket No. WEST 81-332-M
Petitioner alleges respondent violated 30 C.F.R. § 57.9-2
which standard provides:
Mandatory. Equipment defects affecting safety shall
be corrected before the equipment is used.
On October 9, 1980, MSHA inspector David Anspach conducted an
investigation following an accident at the Alchem mine and issued a
104(a) type citation No. 337557 which included the following
statement:
A 400 gal. oil tank that was being towed in GME
roadway broke loose and struck a man that was
standing in front of a lube truck. The retaining
pin between the towing bar and the 400 gal. tank came
loose releasing the tank. The tank equipped with
4 fixed wheels continued on the roadway striking a
man between the tank and a stopped lube truck
CExh • GX-1 7 ) •

604

Following a. hearing in Green River, Wyoming, the parties submitted
post hearing briefs.
Issue
The specific issue in this case is whether there was a defect
in the tow bar connecting the 400 gallon tank trailer to the
tractor before the equipment was used.
If so, then a determination
must be made as to the amount of the penalty to be assessed the
respondent.
Discussion
The facts in this case are not in dispute. The vehicles
involved in this accident were a 400 gallon hydraulic oil tank
being towed by a Ford forklift tractor. The location of the
equipment was in an underground roadway of the Alchem mine. The
tractor was connected to the trailer by a tow bar that was in the
shape of an A with the point or narrow part of the tow bar attached
to the tractor by a pin that dropped through two braces on the body
of the vehicle. The wider part of the tow bar fit over a tube of
steel attached to the trailer through which was inserted a pin. A
cotter pin was to be inserted in the end of the pin so that the pin
would not slip out (Tr. at 11, 12 and Exh. GX-19, 20). As the
tractor was pulling the tank along the underground roadway, the tow
bar came loose and the tank continued along pinning a miner between
the tank and a lube truck (Tr. at 12 and Exh. GX-21). The reason
the tow bar came loose in this instance was because the cotter pin
was missing. Why the pin was missing is not established in this
case.
Respondent contends that in order to prove a violation of
standard 57.9-2, petitioner must prove that there was a defect
affecting safety which must have existed before equipment was used.
In this case, respondent argues that the defect was not proven.
MSHA inspector Anspach testified that the reason the citation
was issued was that the cotter pin dropped out of the tow bar.
However, under questioning, Anspach testified as follows:

Q. Could you explain to us why you checked the box
there under condition or practice that says, "could
not have been known and predicted or cured due to
circumstances beyond the operator's control?"
A.
This was as a result of that key coming out of
there.
I don't think there was any way they could
predict when that key will come out of there, or when
that could come out of there. The reference is to the
key, to the cotter pin.
Q.

I see.

605

In this case, we do not have a situation where the inspector
who issued the citation claims that the equipment was defective
before it was put in use. He admitted under cross examination that
it was unknown whether the cotter pin was in or out when the
equipment was operated and testified as follows: "as far as that
particular pin missing I don't believe they were negligent. What
I'm saying is if they looked at it and it was missing I don't know"
CTr. at 20). Also, he answered a question put to him as follows:

Q. And with respect to the safety chain and whatever -and the failure to have safety chains or welding devises
you said the company should have perhaps found that, but
your not asserting that for purposes of the violation of
9-2.
A.

No.

This is after the fact (Tr. at 21).

I find from the evidence of record and particularly the
testimony of the inspector that the violation of 57.9-2 was not
proven and particularly that part relating to defects in equipment being known before it is put in use. The proposal for a civil
penalty should be dismissed. Sec Grove Stone and Sand Company, 2
FMSHRC 1263 (May 1980)(ALJ).
Petitioner argued that several Commission decisions uphold
their position in this case that the respondent violated 57.9-2.
I disagree.
In Secretary v. Ideal Basic Industries, 3 FMSHRC 843,
the Commission considered a piece of equipment put in use with a
known defect even though it was alleged the defect was not used.
In the instant case, it was never proven that anyone knew of a
defect when the equipment was put in use.
In Secretary v. Allied
Chemical Corp., 4 FMSHRC 503 (March 1982)(ALJ), Judge Morris found
that there were defects existing when the machine was put in use.
That is a different situation than is being considered in the case
at issue here. Similarly, the same was true in Secretary v. Raid
Quarries, 4 FMSHRC 728, Cl982)(ALJ).
Docket No. WEST 81-332-M is hereby dismissed.
Docket No. WEST 81-405-M
Petitioner alleges respondent violated 30 C.F.R. § 57.21-33.
The cited standard provides as follows:
Mandatory. The volume arid velocity of the current of
air coursed through all active areas shall be sufficient
to dilute, render harmless, and carry away methane, smoke,
fumes, and dust.

HOS

During a regular inspection of the Alchem mine Inspector
Martin B. Kovick issued Citation No. 577485 stating in the
condition and practice section as follows:
In the H.M.S. underground shop, there is not enough
air movement to carry away smoke and fumes. There was
not enough air to turn an anemometer approximately
4-5 feet from the fan. There is not enough air movement to take a smoke tube reading approximately 4-5
ft from the fan. The whole shope area was filled with
what appeared to be smoke fumes and dust. There are
approximately four to six men working in the shop and
under these conditions. It is apparent that ventilation
is not adequate to carry toxic fumes etc. to the return
airway.
Issue
Was the volume and velocity of the current of air in the
H.M.S. shop sufficient to dilute, render harmless, and carry away
fumes and dust?
DISCUSSION
The facts in this case show that on June 17, 1981, MSHA
inspector Kovick conducted a regular inspection at respondent's
Alchem mine. While underground at the H. Main South shop area, he
observed a man using an arc welder to weld on a piece of mining
equipment. Kovick testified that he saw blue smoke and haze
"hanging" in the shop area. He considered it an excessive amount
of smoke and haze (Tr. at 11). At this time the inspector
attempted to test the air flow in room 3 with an anemometer but
there was not enough air to turn the testing device. He then
performed several smoke tube tests. This is done by squeezing off
a puff of smoke and measuring the speed of its travel over a
distance of ten feet to determine the air flow. Kovick stated that
instead of traveling ten feet, the smoke in this case drifted to
the ceiling (Tr. at 12). The smoke tube tests were performed also
approximately 30 feet from the ventilation exhaust fans (Tr. at 16).
The only way that the smoke would go through the ventilation fan
was by sticking the tube approximately 4 to 5 inches from the fan
(Tr. at 17) •• Further tests were conducted and resulted in similar
results in rooms 4, and 5 in the H.M.S. shop area CExh. GX-23).
The inspector testified that he was in the shop area for an hour
and that he began to feel nauseous from the fumes (Tr. at 24).

607

Inspector Kovick also conducted two "cricket" tests which is
used to obtain air samples for an analysis of gases such as
methane, carbon dioxide, and other gases. The report on this test
was relatively neutral for the above gases but the inspector failed
to request a report for gases given off by welding (Tr. at 37).
Two hours after the inspection in which citation No. 577485
was issued, Jack Thorner, safety engineer and Don Schwartzenberg,
mining engineer for respondent, conducted ventilation tests in the
H.M.S. shop area. They were also unable to get an anemometer
reading (Tr. at 102). They conducted smoke tests in rooms 3 and 4
and concluded that the cubic feet per minute (CFM) of air movement
was 9100 and 5050 respectively. Schwartzenberg believed that
quantity of air was sufficient for removal of fumes from the shop
area (Tr. at 104).
Respondent argues that petitioner has failed to prove that the
air movement in the shop area was insufficient to dilute, render
harmless and carry away fumes and that the fumes were harmless.
This is based upon the testimony of Thorner that at the time of the
inspection, he thought the shop seemed clear, except for some smoke
in the pockets in the back (ceiling). Further, respondent contends
that the results of Kovick's tests were inaccurate. First, that
only one test was taken in each room and that they were taken
approximately 20 to 30 feet from the stopping which would render
them inaccurate as stoppings cause the air flow to eddy (Resp. Br.
at 7 and 8).
After a careful review of all of the evidence and arguments in
this case, I conclude that the most credible evidence substantiates
the .fact that a violation of standard 57.21-33 did occur. There
was considerable evidence presented by respondent in this case
regarding velocity of air and whether or not the fumes were harmful.
I find that the various arguments, although well presented, misses
the mark as far as interpretation of the standard violated here.
The standard 57.21-33 requires that the volume and velocity of the
air through the working area be sufficient to dilute, render
harmless' and carry away methane, smoke, fumes, and dust.
In light
of the foregoing and the plain language of the standard, I find
that the air moving through the shop was not adequate to remove the
smoke and fumes that had accumulated. There was no disagreement
between the parties that on the day of the inspection, welding was
being performed in the H.M.S. shop area. There is a difference of
opinion as to the amount of smoke, haze, and fumes that existed in
this area when the inspection party arrived. Under all
circumstances, I find the testimony of Inspector Kovick more
credible on this point than that of respondent's witnesses. He
testified that when they entered the shop area you could see the
blue smoke and haze hanging in the shop area and it appeared to him
to be an excessive amount (Tr. at 11). Jeff Sawyer, respondent's
maintenance foreman, said it was normal to have a little smoke in

608

pockets in the top (Tr. at 67).
I do not find Sawyer's testimony
persuasive as it was his area of responsibility where the citation
was issued. Jack Thorner, safety engineer, also testified that he
was along with the inspection party and that he thought the room
cited seemed clear to him except for pockets of blue smoke close to
the back. Although there is conflicting testimony as to the degree
of smoke in the shop, I believe the inspector's testimony is more
credible on this point.
The evidence shows that when the inspection party entered the
shop area, two of the exhaust fans were turned off, one in room 3
where the welding was being performed and another in room 4.
Thorner, confirmed this and stated that he did not know why these
fans were off CTr. at 87, 88). Sawyer had testified that the men
in the shop had been welding on a Jof frey Miner in room 3 all day
(Tr. at 71). Based upon these facts, it is reasonable to conclude
that there would be smoke, fumes, and haze from the welding and if
the fans were off, it would not provide adequate air movement to
remove the contaminates from the area. The lack of movement of
smoke from the inspector's smoke bomb confirms this.
The standard cited refers to methane, smoke, fumes, and dust.
It doesn't explicitly require that a determination be made as to
how toxic these are. Therefore, I reject respondent's argument
that the petitioner failed to prove the fumes were harmful.
It is
sufficient to show that there was either smoke or fumes in the area.
Further, the evidence established that the smoke and fumes were a
result of the arc welding that was being performed in the area.
Further Kovick and inspector Jacobson testified to the fact that
significant hazards are associated with fumes occurring from
welding CTr. at 59-64). This was uncontroverted by respondent's
witnesses.
In view of the above, I find a violation by respondent of
standard 57.21-33 as alleged in citation No. 577485.
I find the
respondent knew of the violation as members of management had been
present in the area. Also, the fact that exhaust fans were turned
off during the welding in the area is evidence of negligence. The
gravity is serious as the effect of smoke and fumes on miners
working in the area can be injurious to their safety and health
when inhaled over a period of time. The respondent demonstrated
good faith in abating this violation by installing regulators in
the stoppings to replace the exhaust fans.
I find that $140.00 is
an appropriate penalty in this case.
CONCLUSION OF LAW
Based upon the entire record in these consolidated cases
including the stipulations of the parties and upon the factual
determinations reached in the narrative portions of this decision,
it is concluded:

609

1.
cases.

That the Commission has jurisdiction to decide these seven

1. Docket No. WEST 80-217-M.

Based upon motion of the petitioner, and order approving same,
WEST No. 80-217-M which included Citation No. 575879 is dismissed.
2. Docket No. WEST 80-292-M

Based upon the stipulation of settlement entered into between
the parties, the following agreed settlements for the designated
citations are approved as follows:
Approved Penalty
Citation No.
Citation No.

336642A
3366428

Total Penalty

$2,500.00
2,500.00
$5,000.00

3. Docket No. WEST 80-299-M

The most credible evidence establishes that petitioner failed
to prove by a preponderance of the evidence in citation Nos. 336643
and 336644 a violation of 30 C.F.R. § 57.21-78 and that this case
is dismissed.
4. Docket No. WEST 81-28-M and WEST 81-32-M

In WEST 81-28-M, citation No. 575877, the evidence shows that
respondent violated 30 C.F.R. § 57.9-2 by allowing a piece of
equipment containing defects affecting safety to be used. An
appropriate penalty is $800.00. In WEST 81-32-M, citation No.
576843, the evidence shows that respondent failed to remove
equipment from service after being cited in violation of 30 C.F.R.
§ 57.9-2.
An appropriate penalty in this case is $100.00.
5. Docket No. WEST 81-332-M

The credible evidence establishes that petitioner failed to
prove by a preponderance of the evidence that a violation of 30
C.F.R. § 57.9-2 occurred warranting the issuance of citation No.
337557.· ·The facts did not prove that respondent knew of a defect
in the equipment being cited in this case before it was put in
service and WEST 81-332-M is dismissed.
'
6. Docket No. WEST 81-405-M
Citation No. 577485, issued in this case and alleging a
violation of 30 C.F.R. § 57.21-33 is affirmed. It is determined
that an appropriate penalty in this case is $140.00.

610

ORDER
Accordingly; based upon the foregoing findings of fact and
conclusions of law, the respondent is ordered to pay the total sum
of $6,040.00 within forty days oE this decision.
-,?"'./,

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c:-:/;,-/?~Y c ?' {./ct~Virg·il E. Vail
Administrative Law Judge

Distribution:
Stephen Kramer, Esq., Office of the Solicitor
United States Department of Labor
4015 Wilson Boulevard
Arlington, Virginia 22203 (Certified Mail)
John A. Snow, Esq., Vancott, Bagley, Cornwall & McCarthy
50 s. Main Street, Suite 1600
Salt Lake City, Utah 84144 (Certified Mail)
/blc

611.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400 .
DENVER, COLORADO

MAR 61984

80204

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 83-73
A.C. No. 02-00533-03503

v.

Black Mesa Mine

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances:

Before:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner:
Michael o. McKown, Esq., Peabody Coal Company,
St. Louis, Missouri,
for Respondent.
Judge Morris

This case, heard under provisions of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq., (the "Act"), arose
from an inspection in November, 1982 of the Black Mesa surface coal
mine of Peabody Coal Company. The Secretary of Labor seeks civil
penalties because respondent allegedly violated two safety
regulations adopted under the authority of the Act.
After notice to the parties, an expedited hearing was held
in Phoenix, Arizona on December 13, 1983. Respondent's request for
an expedited decision, made at the hearing, was granted.
Both parties filed post trial briefs.
Stipulation
The parties stipulated that Peabody is a large company with a
moderate history. The company abated the alleged violation in good
faith. Further, the imposition of a civil penalty will not affect
the company's ability to stay in business (Tr. 5).

612

Citation 2006837
In this citation the Secretary of Labor seeks a civil
penalty of $2,000 because respondent failed to provide a berm on
its elevated roadway thereby violating the mandatory standard
published at 30 C.F.R. § 77.1605(k), which provides:

Ck> Berms or guards shall be provided on the outer
bank of elevated roadways.
Issues
The issues are whether berms are to be provided at the edge
of a 130 foot bench in the working pit of a multiple seam surface
coal mine1 further, a secondary issue is whether the diminution
of safety doctrine is viable. If a violation exists then an
issue is presented as to what penalty is appropriate.
Summary of the Evidence
The facts surrounding the death of dozer operator Cecil
Yazzie are basically uncontroverted.
Petitioner's evidence, in the main, addresses the details of
the accident.
Respondent's evidence generally addresses the
operation of its surface coal mine. A sketch, in Exhibit Pl,
illustrates the location of the highwall, the coal seam, the path
of Yazzie's dozer, the keyway and the spoil pile.
William G. Denning testified for MSHA: In November 1982 MSHA
Inspector Denning investigated a fatal accident that had occurred
in the Jl-N6 pit at respondent's Black Mesa coal mine (Tr. 7, 10,
11, Exhibit Pl). His investigation established that on November
5, 1982, at the commencement of the shift, at 4 p.m., dozer
operator Cecil Yazzie met his supervisor, Moreo, in the pit area.
Moree drove Yazzie through the pit from the coal face on the Blue
seam coal bench to ramp c. Moree instructed Yazzie in his work.
His duties included leveling the shot coal from the previous
shifts, making ramps up the coal face, and building portions of
ramp C. (Exhibit Pl).
After leveling the shot coal Yazzie proceeded to Ramp C and
began working at that location. At about 11:30 p.m. Yazzie,
Moreo and Ralph Charlie (shooter/blaster) were located near the
bottom of Ramp C, preparing to set off a coal shot on the Blue
coal seam. Yazzie's dozer, parked on the ramp, was used for
protection from the blast. After a delay the shot was set off.
Moreo found no misfires and he left the coal bench. While he was
leaving the pit Moreo passed Yazzie who was starting to tram his
dozer from Ramp c through the pit to the carry-all bus at Ramp E.
Moree continued out of the pit and stopped for a few minutes to

613

talk to the coal loader operators. He then proceeded to Ramp E.
After arriving at Ramp E, Moreo became concerned because he could
not find Yazzie. Moree traveled to the coal face on the Blue
seam and, after a brief inspection, he observed Yazzie's upset
dozer in the keyway near Ramp c. (Tr. 13, Exhibit Pl). Moreo,
who was also an Emergency Medical Technician, and others could
not revive Yazzie (Exhibit Pl).
The keyway, or ditch, is an area excavated by the dragline
along the seam coal bench. It was 31 feet to the bottom of the
keyway. At the time of the accident the keyway extended from
Ramp C approximately 600 feet toward Ramp E.
The inspector's investigation further established that,
after leaying Ramp c, Yazzie's dozer traveled in a path at a
slight angle away from the keyway. After traveling approximately
75 feet Yazzie made a correction toward the keyway. He made
another slight correction when 40 feet from it but he continued
in the general direction of the keyway. After the second change
in direction he traveled approximately 35 feet before toppling
off the coal bench into the keyway. At that point his dozer was
at the edge of the coal shot (Exhibit .Pl).
The dozer tread marks for the final 35 feet indicate the
dozer was still tramming forward at the time of the accident. It
appeared that the outer edge of the coal bench collapsed under
the dozer, causing it to roll sideways off of the bench (Exhibit
pl).

The dozer fell about 31 feet, impacting on the top edge of
the rollover protective structure. Yazzie remained inside the
operator's cab; however, it appeared he was not wearing the seat
belt that was provided (Exhibit Pl).
After the coal shot and before this accident occurred the
dragline had resumed operations. While digging, the dragline's
lights illuminated the pit and accident area; however, as the
dragline spoiled, it swung away from the pit, leaving the area
relatively dark. This change from light to dark could have
affected Yazzie's perception. Also while spoiling, the dragline
created dust in ·the pit that could have affected visibility.
(Exhibit Pl).
.
Yazzie was normally assigned to work at the J-7 pit area.
He worked in the J-1 pit only when needed. A keyway, as
excavated in the J-1 pit, is sometimes, but not always, present
in the J-7 pit. The unexplained changes in the direction of the
dozer could have been made by Yazzie in order to tram the dozer
around the shot coal. Since Yazzie was newly assigned to the J-1
pit he may have forgotten about the keyway being adjacent to the
shot coal and trammed the dozer into it (Exhibit Pl).

614

As a result of its investigation MSHA concluded that the
accident occurred due to Yazzie turning the dozer and tramming it
toward the keyway. The lack of a berm along the outer edge of
the elevated Blue seam coal bench contributed to prevent travel
into the keyway. MSHA could not determine the reason why Yazzie
turned the dozer toward the keyway. In MSHA's opinion a
contributing factor to the fatality was Yazzie's failure to wear
the seat belt provided in the dozer (Exhibit Pl).
MSHA's inspection manual contains guidelines construing the
berm standard. The manual states:
The requirements of Section 77.1605Ck> apply to that
part of an elevated haulage road where one bank is,
or both banks are, unprotected by a natural barrier
which will prevent vehicles or equipment from running
off and rolling down the unprotected bank or banks.
"Elevated roadways", as used in this requirement, are
roadways of sufficient height above the adjacent
terrain to create a hazard in the event mobile equipment ran (sic) off the roadway.
"Berm" as used in this requirement means a pile or
mount of material at least axle high to the largest
piece of equipment using such roadway, and as wide at
the base as the normal angle of repose provides. Where
guard rails are used in lieu of berms, they shall be of
substantial construction.
The width of the haulage road does not preclude the
need for berms or guard rails.
(Exhibit P8).
In December 1981, in response to questions concerning the
berm standard, the admini•trator for coal mine safety and health
issued MSHA's policy memorandum 81-40C. The administrator, on
behalf of MSHA, stated in part as follows:
Section 77.1605Ck>, 30 CFR 77, is applicable to all
elevated roadways on mine property, including roads
used to transport coal, equipment, or personnel~ and
regardless of the size, location, or characterization
of the roadways. Berms or guards are required on all
exposed banks of elevated roadways. Thus, elevated
roadways with two exposed banks are required to have
berms or guards on both sides.
(Exhibit P7).
At the time of the accident the dragline had exposed the
Blue coal seam. Two ramps were being used for access to the pit
area (Tr. 12, 13, Exhibit Pl).

615

In the inspector's opinion a berm should have been placed
from the point where Ramp C intersected the Blue coal seam bench
back towards Ramp E, a distance of about 600 feet (Tr. 22). The
inspector considered the bench a roadway· because the same type of
equipment uses the coal bench and the haul roads (Tr. 23).
Surface changes occur in the mine as mining progresses from
one seam to another but there is always a bench in the coal pit
used for a travelway (Tr. 23).
The MSHA surface inspection manual (Exhibit P8, pages 336,
337) and the MSHA policy memorandum define an elevated roadway.
These defintions are applicable to respondent's work place (Tr.
24-26, 61). The inspector relied on the policy memorandum in
forming an interpretation of what constitutes a roadway (Tr. 43).
A roadway is a travelway used to transport equipment, personnel
and coal (Tr. 43, 44, 61). The inspector would not consider a
surge pile to be a roadway (Tr. 49, 50).
In the inspector's opinion there are some "gray areas" as to
what constitutes a roadway; in addition, an inspector has a
degree of judgment as to the citations he can issue (Tr. 50, 51).
The lack of a berm, as here, presents a hazard to a miner
such as Yazzie (Tr. 26).
A berm can either stop a vehicle,
redirect it, or warn an operator that he is in close proximity to
the edge (Tr. 27, 39, 40).
In the inspector's opinion a berm would not be necessary if
the dozer was cleaning the coal or pushing dirt off of the edge
of the bench (Tr. 50).
Respondent's Evidence
Buck Woodward, Tracy Northington, Alan Cook, Don Holt, Rick
Contratto and Joe.Johnson testified for respondent.
At the Black Mesa mine respondent uses a multiple seam
mining process for its five seams of coal (Tr. 70-72). The
company uses a color coding system to differentiate between its
coal seams (Tr. 71). These seams are respectively designated,
from the surface down, as green, blue, red, bottom red, and
yellow (Tr. 71, Exhibit F).
The coal bench is the area where the dragline and other
pieces of mining equipment are located. The highwall is the face
left by the dragline and the stripping equipment (Tr. 71; for a
cross section view see Exhibit B).
Black Mesa uses a Marion 8750 dragline to first cut a keyway
or ditch (Tr. 71-73). A drill crew then drills through the

616

overburden. to the first coal seam (Tr. 73).
The dragline removes
the drilled and shot overburden by depositing it in an area that
has already been mined (for an illustration of the pit
configuration see Exhibit C).
The pit highwall results when the overburden is removed.
The removal of the overburden also exposes the coal seam which
is, in turn, drilled and shot. Shovels and other equipment load
the coal onto trucks (for an illustration of the coal loading
operation see Exhibit D).
The mining sequence continues as the dragline removes the
coal. Drilling, shooting, and loading activities follow behind
the dragline (Tr. 74). The dragline, using the wide radius of
its shovel, spoils the overburden and later the parting l ; into a
pit where the coal has already been removed (Tr. 74).
In the Jl-NG pit the bench is 130 feet wide. Respondent
tries to maintain that distance but it narrows slightly at the
bottom coal seam (Tr. 15).
As a result of this citation MSHA requires a berm when the
topmost (green) coal seam is exposed. The berm must be installed
prior to any shooting. The berm is approximately six feet high
and sixteen and one half feet wide at the base (Tr. 77). This
berm must later be pushed off so the crews can shoot the coal
beneath it.
MSHA also requires a third berm on the parting between the
second and third seams (blue and green seams). This berm must,
in its turn, be pushed off so the drilling crews can fragment the
area beneath it. The dragline, in turn, removes the parting (Tr.
79).
The construction and removal of the berms continues as the
mining progresses. The progression is both downward as the coal
seams are exposed and removed and laterally as the dragline,
shooters, and auxiliary equipment remove the coal or the parting
(Tr. 79-80).
In this mining progression 12 berms must be
constructed and removed (Tr. 80).
The pit, designated as Jl-NG, is the working pit of an
active surface coal mine. Haulage trucks and loader crews are
actively engaged in the coal removal. The haulage trucks, 16
feet 8 inches wide, primarily drive down the middle of the bench,
~/

Parting is the interburden between coal seams.

617

or a bit to the highwall side (Tr. 82). In the pit there is one
direction of traffic. Once the trucks reach the ramp they go out
of the pit area until they reach a permanent haulage road. The
trucks then travel to a preparation site (Tr. 88).
In the opinion of respondent's engineer an active pit area
is not a roadway. One reason is that the area changes daily.
Haul roads at mines are designed to certain specifications and
they take into consideration the speed of vehicles using them.
Also the drainage of a haul road is a factor to be evaluated (Tr.
82, 83).
Respondent uses track type and a rubber tired dozer to
emplace its berms. When necessary dump trucks haul in material
to construct the berms. (Tr. 81).
Berms, such as MSHA requires here, are not required at any
other mine in the west (Tr. 84>.
In the opinion of respondent's engineer a berm in place here
would not have prevented the accident. Yazzie was entering the
coal shot area and his duties would have required that he level
the .area (Tr. 84).
Respondent's industrial engineer conducted a time and motion
study relating to the installation and removal of berms (Tr. 97).
A videotape (Exhibit U) shows the building of a berm with
respondent's Clark 380 rubber tired dozer (Tr. 98-100). The
front portion of the dozer goes out over the edge of the bench
when building and even more so when removing the berms (Tr.
98-102). In building a six foot high berm the average dozer
cycle ~/ is .47 minutes.
Normally berms are built during the third shift, from
midnight until 8 a.m. (Tr. 101). Northington has monitored over
4000 dozer cycles.
When berms must be built at the edge of parting seams then
material must be hauled in to construct the berms since there is
no loose material available. Respondent estimates that, on an
annual basis, it has hauled in 150,000 yards of material, about
2,000 truck loads, to build such berms (Tr. 104).
In removing the berms the dozer operator, whose vision is
blocked by his equipment, goes right to the edge. Some operators
have stated this was unsafe (Tr. 105).

2/ A cycle is the elapsed time from when the dozer starts
forward, reverses its motion, and again starts forward (Tr. 99,
100).

618

Trucks in the pit never operate closer than within 80 to 100
feet of the edge of the bench (Tr. 106>.
Respondent submitted a tirne and motion study comparing the
"before and after" exposure of its men and equipment in abating
this citation. All calculations were made on an annual basis
(Tr. 107, Exhibits V, W, X).
Before the issuance of this citation respondent's activities
resulted in its miners and equipment being exposed to the hazard
of being within 20 feet of the parting ditch edge for 1,085.8
hours. This exposure was primarily the time required to drill in
the 20 foot zone next to the edge of the ditch. This exposure is
still incurred because it is still necessary to drill and remove
the coal in the 20 foot zone (Tr. 108). But the exposure in this
zone is now. increased to 1,880.6 hours. This 73 percent increase
results from the construction and removal of the berms now
required by MSHA (Tr. 109, Exhibit X).
Before the berms were required the only dozer exposure to
the ditch edge occurred during the cleaning of the coal. This
was for 40.48 hours (Tr. 109, Exhibit W). As a result of abating
the citation the exposure is now 831.5 hours, an increase of 1954
per.cent.
In removing the coal, respondent's rubber tired dozer cuts a
14 foot swath and approaches the edge 7,619 times (Tr. 109,
Exhibit V). Since respondent is now building and removing berms
there are 103,451 cycles to the ditch edge, an increase of 1,612
percent (Tr. 109-110, Exhibit V). Respondent has constructed 58
miles of berms to abate this citation (Tr. 115, 116).
Respondent puts berms on active haul roads where there is
vehicular traffic traveling "at a good speed" (Tr. 125).
In the opinion of mine superintendent Joe Johnson the
standard does not apply to the working area of the pit. The
company is constantly mining this area. MSHA has never
previously cited respondent for failure to have berms in an
active pit area. But the company has been cited due to an eroded
berm on a haul road (Tr. 151, 154, 155).
Don Holt, respondent's safety director for its mines in
Kentucky and Ohio, is familiar with MSHA regulations 1605(k).
Holt's opinion the purpose of the regulation is to provide a
guide on a haul road to keep vehicles within a confined area.
Further, in Holt's opinion, the section does not apply to the
working pit of surface mines (Tr. 132-134).
In the mines in the eastern portions of the United States

619

In

the working pits are 45 to 80 feet wide. It would practically
shut down such mines if MSHA requires berms as it does here.
MSHA does not now require berm:3 in other active working pi ts.
(Tr. 136, 137).
Discussion
Respondent's post trial brief asserts that the term
"elevated roadway" does not include active work areas within the
pit of a surface mine; that MSHA's reliance on its policy
memorandum and its Surface Inspection Manual are misplaced; that
there are profound differences between a roadway and a working
pit bench; that as defined by a recognized treaties and a Bureau
of Mines report a pit bench is not a roadway; that the failure to
enforce this regulation elsewhere points out its vagueness and
lack of clarity, that the Penn Allegh doctrine is not controlling; that all of respondent's witnesses and a time study
confirm the extent of an additional hazard created by MSHA's
erroneous interpretation of the regulation; that the emplacement
of a berm would not have prevented Yazzie's accident; that MSHA
failed to present the inspector who wrote the citation and failed
to offer the citation in evidence; that MSHA's interpretation
would shut down the surface coal mines in the United States.
The post trial briefs filed in this case do not cite the
Commission decision of El Paso Rock Quarries, Inc., 4 FMSHRC 35
(1981). In El Paso Rock the Commission considered whether a
violation of a berm standard occurred. The Commission held that
a "bench" 3; in a quarry is an "elevated roadway" within the
meaning of-the standard. In El Paso Rock the bench where the
trucks operated were 40 feet above a lower bench. Berms were
required.
The standard in contest here, 30 C.F.R. § 77.1605(k),
applies to surface coal mines, including open pit and auger
mines" 30 C.F.R. § 77.1. The standard in El Paso Rock, 30 C.F.R.

ll

In El Paso the Commission, in footnote 7, stated:

The term "bench" is in part defined by a A Dictionary of
Mining, Mineral, and Related Terms, Department of the Interior
( 1968), as:
A ledge, which, in open-pit mines and quarries, forms
a single level of operation above which mineral or
waste materials are excavated from a continuous bank
of bench face. The mineral or waste is removed in
successive layers, each of which is a bench, several
of which may be in operation simultaneously in
different parts of, and at different elevations in an
open-pit mine or quarry.

620

55.9-22, was applicable to metal and non-metallic open pit
mines, 30 C.F.R. § 55.1. But since the wording in each standard
is exactly the same I consider El Paso Rock to be binding
precedent.
§

Respondent initially asserts that the berm regulation does
not encompass an active work area within the pit of a surface
mine. In its rationale respondent cites the testimony of MSHA's
only witness, William Denning. Respondent argues that his
testimony is vague and inconclusive. It cites his testimony that
a coal bench seam is a roadway "because the same type of
equipment that used the bench also used the haulage system in the
mine" (Tr. 22-24). Then respondent cites Denning's cross
examination where he admits that "elevated roadway" is not
defined in 30 C.F.R. Part 77 (Tr. 61). And in arriving at his
conclusion the inspector relies on the Inspection Manual and
MSHA's policy statement (Tr. 61, Exhibits P7, PS).
Respondent may argue that the evidence is inconclusive but
basically the evidence is.uncontroverted. Respondent's haulage
trucks operated on the coal seam bench. The bench was 30 feet
above the adjacent keyway. There were no berms. The foregoing
were the circumstances prohibited in El Paso Rock. There appears
to be no difference between a coal bench and a quarry bench.
Respondent contends that the MSHA Surface Inspection Manual
and the policy statement CP7 and P8) are not binding on the
Commission. I agree. Further, I do not rely on those exhibits.
The documents fail to define a roadway. They assume a roadway
exists; therefore, when it does, it must be bermed. For example,
the inspection manual states that 1605Ck> applies to ••• "an
elevated haulage road"; "Elevated roadways ••• are roadways",
"the width of a haulage road." Further, the policy statement
indicates 1605(k) applies to "all elevated roadways." For
example, "Berms •.• are required on ••• elevated roadways ••••
elevated roadways with two exposed banks", etc.
Respondent argues that the berm regulation does not apply
because of the profound differences between a coal bench and a
roadway. The most striking difference is that coal is removed
from the coal pit. The removal is daily, even hourly (Tr. 155).
All of the equipment including draglines, dozers, trucks and the
like are engaged in this task (Tr. 82-83). Obviously, coal is
not extracted from a haul road (Tr. 39).
MSHA's witness Denning indicated that the nature of the
traffic is one of the factors to be considered before issuing a
citation in this "gray area" (Tr. 35, 36, 54). One of the traffic
features revolves on the speed of the equipment: In the pit the
vehicles do not travel much more than five miles per hour. But a
haul truck on a level road could reach 30 to 40 miles per hour.
CTr. 35, 36, 54). Respondent's evidence, confirmed by MSHA's

621

witness Denning, establishes that the Mudd Series on Surface
Mining defines a haul road as qa road built to carry heavily
loaded trucks at a good speed" (Tr. 37). Respondent contends
that this obviously excludes a coal bench. Further, the type and
character of the tiaffic is substantially different. The
draglines, the loaders, the dozers, and the haul trucks are
essentially congregated in the pit. The nature of this traffic
in the pit is, by virtue of its continuing activities,
substantially different from the traffic on the haul road.
The evidence here shows that the bench was 130 to 140 feet
wide (Tr. 20, 116). The inspector assumed "the haulage truck
drove down the middle of the coal seam" (Tr. 48). On this basis
the 18 foot wide haul trucks would be no closer than 65 to 70
feet from the edge of the bench (Tr. 46, 47). Or, as the inspector stated, "If traveling down the middle the trucks would be
60 feet from the edge" (Tr. 46, 47). In short, on the facts no
vehicles were closer than 60 feet of the edge of the bench.
On the foregoing facts, I would rule that the coal bench is
not a roadway and I would vacate the citation. But the mandate
in El Paso Rock is explicit: "Under the facts of this case, the
quarry bench where the haulage trucks were driven is indeed an
elevated roadway within the meaning of section 56.9-22", 3 FMSHRC
at 36.
The El Paso Rock case was originally heard by Commission
Judge Charles c. Moore, Jr., 1 FMSHRC 2046 (1979). The trial
judge's decision does not indicate how close El Paso's trucks
were operated to the edge of the bench. However, I lack the
authority to carve an exception to the Commission decision.
Respondent in its brief cites a report published by the
Bureau of Mines stating "Barriers should be used only in areas
such as a very heavily, traveled, permit haul road." (Tr. 63-64).
MSHA's witness only identified this as a statement in a book. On
this minimal authentication I give such evidence zero weight.
In support of its argument that the regulation is vague and
lacks clarity respondent cites the failure of MSHA to previously
enforce the regulation at this site and elsewhere as to a coal
seam bench.
·
The foregoing position is basically a plea in estoppel. But
it is well established that estoppel does not apply against the
federal government. King Knob Coal Company, 3 FMSHRC 1417, 1421.
Respondent argues that its time study (witness Northington)
and its video tape (Exhibit U) are not offered to prove that
MSHA's enforcement of§ 77.1605(k) diminishes safety or causes a
greater hazard. But it argues that if MSHA interprets the
regulation in such a way that dangers are increased then that

622

interpretation is not correct.
In short, respondent agrees that
berms on an elevated roadway increase safety. But a coal bench
is not a roadway and if MSHA interprets it to be so then MSHA is
wrong because there is a clear increase in danger.
It is
axiomatic that the greater the exposure to the hazard, the more
likely an accident. Respondent's uncontroverted evidence clearly
establishes that the placement of berms can be hazardous CTr.
143). Further, the type of berms MSHA requires here (some 58
miles) are transient. Their duration can be as short as three
hours (Tr. 144). But a berm on a bona fide elevated roadway is
not so transient CTr. 83).
The Commission in El Paso Rock did not.consider the factors
respondent now raises. But to reiterate, I lack the authority to
overturn the Commission's clear directive. Further, while
respondent's videotape and supporting testimony were generally
admissible it was basically a revisit to the diminution of
safety, or as it is sometimes called, the greater hazard doctrine.
Respondent argues that Penn Allegh, 3 FMSHRC 1392, 1399 is not
controlling because the case dealt with explicit cabs and
canopies regulations. But here, the parties are arguing over a
relatively vague standard.
I disagree. Respondent's evidence seek to invoke the
diminution of safety, or the greater hazard doctrine. In Penn
Allegh the Commission refused to approve such an attempt to short
circuit the Act. The Commission observed that when those
situations exist where the application of the standard
diminishes, rather than enhances, miners' safety the operator may
petition the Secretary of Labor for relief from the application
of the standard. The Act provides a set procedure for granting
or denying the relief sought. Penn Allegh at 1397. There are
detailed regulations governing the processing of such petitions,
30 C.F.R. Part 44.
.
In sum, respondent's evidence seeking to establish the
diminution of safety, or greater hazard doc~rine, is rejected.
Respondent asserts that even if a berm had been emplaced it
would not have prevented Yazzie's accident.
It is claimed that
no one knows what caused Yazzie to veer off course and he would
probably have trammed right through a berm in any event. Since a
coal shot had heaved the area the previous berm Chad there been
one) would have been removed for the drilling and shooting
sequence. Further, Yazzie would have been the first dozer
operator in the area (Tr. 147).
It is certainly reasonable to infer that a proper berm would
not have prevented Yazzie's accident. But a nexus is not
required between an accident and the violation of a standard.
The presence of a berm might well have served to warn Yazzie of
the presence of the keyway.

623

Respondent's arguments that MSHA failed to offer as a
witness the inspector who wrote the citation and further failed
to offer the citation itself in evidence lack merit.
Inspector
Denning
testified as to the issuance of the citation {Tr. 28).
He further wrote Exhibit Pl, an extensive report of this fatality.
In Exhibit Pl MSHA entered its finding as follows: "A berm was
not provided on the elevated outer back of the haulage road in
pit 001-0 from ramp c for a distance of about 600 feet along the
Blue seam coal bench, a violation of Section 77.1605CK), 30 CFR."
Respondent's a~guments seek to elevate form over substance •
. Respondent 1 s claim that MSHA's interpretation would shut
down the surface coal mine operations in the United States is
rejected.
Respondent has obviously not shut down its surface coal mine
operation at the Black Mesa Mine in Navajo County, Arizona.
Respondent's evidence and argument that the mines in the eastern
part of the United States would be shut down must await the detailed evidence in such a case.
In short, I decline to rule on a
hypothetical situation.
For the above stated reasons, I conclude that Citation
2006837 should be affirmed.
Citation 2006838
In this citation the Secretary of Labor seeks a civil
penalty of $241 because respondent's employee Yazzie failed to
wear a seat belt thereby violating the mandatory standard
published at 30 C.F.R. § 77.1710{i) which provides:
Each employee working in a surf ace coal mine or
in the surface work areas of an underground coal
mine shall be required to wear protective clothing
and devices as indicated below:
Ci> Seat belts in a vehicle where there is a danger
of overturning and where roll protection is provided.
Issue
The issue is whether respondent violated the seat belt
regulation.
Summary of the Evidence
MSHA's evidence shows that Yazzie was not wearing a seat
belt at the time of th~ accident {Tr. 28, Exhibit Pl). MSHA,
in its written report, concluded the failure to wear the seat
belt in the vehicle was a contributing factor to Yazzie's death
{Exhibit Pl).

624

Respondent's mine superintendent indiGated that the company
requires that seat belts be worn. The workers are informed of
this requirement through task training, annual retraining,
individual contacts and general discussion CTr. 153).
If an employee is caught not wearing a seat belt he is given
a warning. If it occurs again he receives a written warning (Tr.
153).
Respondent's safety manager and pit boss confirmed the
superintendent's testimony. Further, he indicated that the
company reinstalls seat belts if they are damaged or removed (Tr.
117, 120, 121, 129, 147). Equipment operators have been
disciplined for failing to wear seat belts (Tr. 130, 148, 149).
The discipline graduates to suspension or discharge CTr. 130).
Discussion
The Secretary, in his post trial brief, is aware of the
Commission decision in Southwestern Illinois Coal Corporation, 5
FMSHRC 1672, (October 1983). But the Secretary claims the
majority decision violates the long line of strict liability
cases imposed by the Act. Further, the Secretary argues that the
minority view is more persuasive. The Secretary's contentions
are rejected. I am obliged to follow the majority view in
Southwestern Illinois.
The Secretary further argues that the respondent has not
satisfied the criteria in North American Coal Company, 3 IBMA 93,
cited in Southwestern Illinois. The Secretary's argument is.
this: pit boss Contratto had never given a written seat belt
warning to anyone and he was unable to present actual examples of
a warning. I agree the evidence shows that Contratto himself had
never gave an employee a written disciplinary notice for failing
to wear a seat belt (Tr. 148, 149). But the Secretary misconstrues the evidence in the transcript at 149, 150. Contratto
testified that there have been written disciplinary actions. But
he hadn't brought notices to the hearing (Tr. 148-150). On this
record Johnson and Cook establish that respondent was diligent in
the enforcement of its seat belt regulation (Tr. 120, 121, 129,
130, 153, 154). Southwestern Illinois criticized the operator
because the wearing of belts was delegated to the discretion of
each employee. This is not the situation here.
Witnesses
Contratto, Johnson and Cook establish that the respondent was
diligent in its enforcement of the seat belt regulation.
I further note that no facts indicated that the company knew
Yazzie had his seat belt off at the time of the accident, if, in
fact, it was off. (Tr. 29).

625

I reject the Secretary's Brguments.
For the foregoing reasons Citation 2006838 and all penalties
therefor should be vacated.
Civil Penalty
The Secretary seeks a civil penalty of $2,000 for the berm
violation.
Section llOCi> of the Act, codified at 30 u.s.c. 820Ci>,
requires the Commission in_ penalty assessments to consider the
size of the operator's business, its negligence, its ability to
continue in busihess• the gravity of the violation, and the
operator's good faith in seeking rapid compliance.
The parties stipulated that respondent, a large operator,
has a moderate history. Further, the imposition of a civil
penalty would not affect its ability to continue in business CTr.
5). Respondent was negligent. The gravity is high when one
considers the possibility of a 31 foot fall into a keyway. But
on the other hand, I cannot hold the absence of berms necessarily
contributed to.Yazzie's accident and resulting death. To the
operator's credit is its demonstrated good faith in rapidly
abating the citation.
The Commission file does not contain the Secretary's special
assessment narrative but on balance I conclude that a penalty of
$750 is appropriate.
The Solicitor and respondent's counsel have filed detailed
briefs which have been most helpful in analyzing the record and
defining the issues in the case. I have reviewed and considered
these excellent briefs. However, to the extent they are inconsistent with this decision, they are rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portions of this decision, the following
conclusions of law are entered:
1.

The Commission has jurisdiction to decide this case.

2. Respondent violated the mandatory standard published at
30 C.F.R. § 77.1605Ck) and an appropriate penalty therefor is
$750.
3. Respondent did not violate the mandatory standard
published at 30 C.F.R. § 77.1710Ci), and all proposed penalties
therefor should be vacated.

626

ORDER

Based on the foregoing facts and conclusions of law I enter
the following order:
1.

Citation 2006837 is affirmed and a penalty of $750 is

assessed.
2.

Citation 2006838 and all proposed penalty therefor are

vacated.

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor
U.S. Department of Labor
11071 Federal Building, Box 36017
450 Golden Gate Avenue
San Francisco, California 94102 (Certified Mail)
Michael o. McKown, Esq.
Peabody Coal Company
P .o. Box 373
St. Louis, Missouri 63166 (Certified Mail)
/blc

627

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

.

SECRETARY OF LABOR
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
DOUGLAS A. BURKE,
Complainant
v.

MAR 61984

DISCRIMINATION PROCEEDING

:

Docket No. WEST 83-95-DM

.

MSHA Case No. MD 82-95
Colony Oil Shale Project

.

BROWN & ROOT, INC.,
Respondent

DECISION APPROVING SETTLEMENT
Before:

Judge Carlson
\

The parties have submitted a stipulation and settlement
agreement which, if approved, will resolve all issues in this
discrimination case.
Under the terms of the agreement, respondent, Brown and
Root, Inc. (Brown and Root), agrees to pay to Douglas A. Burke
the sum of $7,500.00 for loss of back wages and all other
expenses resulting from his discharge. Brown and Root further
agrees to expunge from complainant's employment record any
adverse references relating to his discharge.
Complainant, in turn, relinquishes any claim to reinstatement to the job he held prior to his discharge.
The parties agree that approval of these terms will fully
settle all issues raised in the cas.e.
Having reviewed the file and considered all the circumstances, I conclude that the settlement should be approved.
Accordingly, the agreement of the parties is approved in its
entirety.
Brown and Root shall therefore tender to Douglas A. Burke
through the United States Department of Labor, 1585 Federal
Building, 1961 Stout Street, Denver, Colorado 80294, the sum of
$7,500.00. The sum shall be paid within 30 days of this present

628

order. Brown and Root shall further, within that same time
period, expunge from the employment record of Douglas A. Burke
any adverse references to his discharge.
In view of this settlement, this discrimination proceeding
is dismissed.
SO ORDERED.

John A. Carlson
Administrative Law Judge

Distribution:
'

Robert J. Lesnick, :E:~q., Office of the Solicitor
United States Department of Labor, 1585 Federal Building
1961 Stout Street, Denver, Colorado 80294 CCertif ied Mail)
Peter R. McLain, Esq., Brown & Root, Inc.,
Legal Department, (01-7th), P. o. Box 3, Houston, Texas 77001
<Certified Mail)

/ot

629

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

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 80-354
No. 1-S Mine

v.
MARTIN COUNTY COAL CORPORATION,:
Respondent
ORDER OF DISMISSAL
Before:

Judge Steffey

Counsel for the Secretary of Labor filed on September 12,
1980, in the above-entitled proceeding a petition for assessment of civil penalty seeking to have a penalty assessed for
the violation of section 105(c) (1) of the Federal Mine Safety
and Health Act of 1977 which I had found occurred in my decision issued in Martin County Coal Corporation v. Secretary of
Labor (MSHA), et al., Docket Nos. KENT 80-212-R, et al., 2
FMSHRC 2829 (19lfO}.
- The Commission's decision in Council of Southern Mountains,
Inc. v. Martin County Coal Corporation, Docket No. KENT 80-222-D,
6 FMSHRC
, issued February 29, 1984, reversed my decision
reported at 2 FMSHRC 2829 and held that no violation of section
105(c) (1) occurred when Martin County Coal Corporation refused
to allow a non-employee miners' representative to come on mine
property for the purpose of monitoring Martin County Coal Corporation's training classes.
Since no violation of section 105(c) (1) occurred, the
civil penalty sought for that violation in the petition for
assessment of civil penalty filed in this proceeding must be
dismissed.
WHEREFORE, it is ordered:
The petition for assessment of civil penalty filed in Docket No. KENT 80-354 is dismissed and all further proceedings in
this case are terminated.

~ e.ol:tAf#

Richard c. stef f e ; r '?Administrative Law Judge

630

Distribution:
Jack w. Burtch, Jr., Esq., Mcsweeney, Stutts & Burtch, 121
Shockoe Slip, Richmond, VA 23219 (Certified Mail)
L. Thomas Galloway, Esq., Galloway & Greenburg,, Suite 601,
1725 I Street,· NW, Washington, DC 20096 (Certified Mail)
J. Davitt McAteer, Esq., Center for Law & Social Policy, 1751
N Street, NW, Washington, DC 20036 (Certified Mail)
Edward H. Fitch, Esq., Office of the Solicitor, u. s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

631

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

LONNIE JONES,
Complainant

v.
MINGO COAL COMPANY, INC.,
Respondent

.
.:
.
.
.

.

HAR 81984

DISCRIMINATION PROCEEDING
Docket No. KENT 83-257-D
BARB CD 83-19

DECISION
Appearances:

Jeffrey A. Armstrong, Esq., Appalachian Research
and Defense Fund of Kentucky, Inc., Barboursville,
Kentucky, for Complainant;
David w. Burton, Esq., Leick, Hanunons & Burton,
Corbin, Kentucky, for Respondent Mingo Coal Company, Inc.;
Larry Conley, Esq., Williamsburg, Kentucky, for
D & R Contractors.

Before:

Judge Melick

This case is before me upon the complaint of Lonnie Jones
under Section 105(c)(3) of the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801, et seq., the "Act", alleging that he
was discharged as an employee of Mingo Coal Company, Inc. (Mingo)
on April 25, 1983, in violation of Section 105Cc)Cl> of the Act.l
As subsequently amended, his complaint charges alternatively
that if he was not an employee of Mingo then he was unlawfully
discharged on that date from the partnership known as D & R Contractors. On August 18, 1983, Mingo filed a Motion to Dismiss
and Motion for sununary Decision alleging inter alia that Jones
had never been its employee and that it had nothing to do with
his discharge or removal from D & R Contractors, an alleged independent contractor. For the reasons set forth below, the Motions
are granted.
lsection 105Cc)Cl> of the Act provides in part as follows: "No
person shall discharge *** or cause to be discharged or otherwise
interfere with the exercise of the statutory rights of any miner
*** in any *** mine subject to this Act because such miner ***
has filed or made a complaint under or related to this Act, including a complaint notifying the operator or the operator's
agent *** of an alleged danger or health violation in a *** mine
*** or because of the exercise by such miner *** on behalf of
himself or others of any statutory right afforded by this Act."

632

As a preliminary matter, it is nece~sary to review the legal
and factual basis for Mr. Jones' complaint herein. In order to
establish a prima facie violation of Section 105(c)(l) of the
Act, he must prove by a preponderance of the evidence that he
engaged in an activity protected by that section and that his
discharge or removal was motivated in any part by that protected
activity. Secretary, ex rel David Pasula v. Consolidation Coal
Company, 2 FMSHRC 2786 (1980), rev'd on other grounds, sub !!Q!!! 1
Consolidation Coal Company v. Secretary, 663 Fed. 2d 1211 C3d
Cir. 1981). See also NLRB v. Transportation Management Corporation 76 L. Ed. 2d 667 (1983), affirming burden-of-proof allocations similar to those in the Pasula case.
In this case, Mr. Jones asserts that he was discharged on
the afternoon of April 25, 1983, because he refused to work a
double shift of sixteen hours. At hearing, Jones alleged that he
arrived at the Mingo coal mine for work at about 7:15 on the morning of the 25th and worked until approximately 5:00 p.m. with
only one-half hour break for lunch. He ftirther alleged that he
had a headache and the flu that day and was therefore not feeling
well. He thus claims that when the "foreman", Ron Perkins, approached him that afternoon about working additional overtime, he
declined, believing it would be hazardous. Jones claims that
when he was discharged later that afternoon by Perkins, that action was based upon his refusal to work overtime, a work refusal
protected by the Act. A miner's exercise of the right to refuse
work is a protected activity under the Act so long as the miner
entertains a good faith, reasonable belief that to work under the
conditions presented would be hazardous. Robinette v. United
Castle Coal Company, 3 FMSHRC 803 (1981). See also Eldridge
Sunfire Coal Company, 5 FMSHRC 408 (1983), pet. for review granted July 11, 1983.

v.

As noted, Mingo argues in its motions that whether or not
Ron Perkins violated Jones' rights under the Act is irrelevant
because Perkins and Jones were not its employees or agents but
were operating as partners in a completely separate business venture known as D & R Contractors, an independent contractor with
which Mingo had contracted to produce coal from its mine.2
Mingo further asserts that it had nothing to do with Jones' •discharge" from D & R Contractors.
It is not disputed that Mingo is a corporation under Kentucky law and is wholly owned by Roger Daniel. Daniel and his
wife are the only officers of the corporation which owns the
coal mine involved in this proceeding. It is further undisputed
2D & R Contractors was later joined as a respondent in this proceeding and that case has been severed for separate proceedings
, under Docket No. KENT 83-257-DCA).

633

that Ron Perkins formed a "partnership" known as D & R Contractors which contracted with Mingo to produce coal from the Mingo
mine and to put it "outside" at a specified price per ton. Daniel testified that he never hired, fired, or disciplined any persons affiliated with D & R Contractors and never directed any of
its work. It is indeed clear that Daniel did not direct any of
the underground mining operations but left that to Ron Perkins
and D & R Contractors. There is, moreover, insufficient evidence
in this case that Perkins was an employee or agent of Mingo.
Lonnie Jones admits that in connection with his work at the
Mingo mine he signed a partnership agreement, was told that he
"worked for" D & R Contractors, was paid by D & R Contractors,
was directed in his work by one of the partners, Ron Perkins, and
was "discharged" by Perkins. In addition, except for the first
few paychecks, Jones was paid based on a share of the coal produced by the partnership and when he was "discharged" was paid
based on a"share of the coal then piled outside the mine. Jones
also admitted at hearing that after he began receiving his pay on
checks from D & R Contractors, he assumed he was working for D & R
Contractors. While it appears from this evidence that under Kentucky law Jones may very well have been a partner of D & R Contractors, Jones maintains that if he was not an employee of Mingo
Coal Company, he was an employee (and not a partner) of D & R
Contractors. See Ky. Rev. Stat. § 362.180. For purposes of this
decision, however, it is not necessary to determine whether Jones
was an employee or partner of D & R Contractors. In any event,
it is clear that Jones was not an employee of Mingo and therefore
Jones could not have been discharged from Mingo.
It is nevertheless arguable that Mingo through one of its
agents caused Jones' expulsion or discharge from D & R Contractors. While there is insufficient evidence in this case to indicate that Perkins was an employee or agent of Mingo, the argument
is advanced that Roger Daniel, acting on behalf of Mingo, participated in Jones' discharge from D & R Contractors. In this regard,
however, Jones admits that when he was "fired" by Perkins, Roger
Daniel was merely standing nearby and said nothing. Jones also
testified that when he later asked Daniel if he would help (presumably to intervene on his behalf> , Daniel responded, "Don't
look at me, I run the outside." Perkins and Daniel testified
that Daniel was not present when Jones was discharged by Perkins,
that Daniel had not previously been consulted about Jones' discharge, and that Daniel had no advance knowledge of the discharge.
I cannot find from either version of events that Daniel had any
part in the discharge of Jones. Accordingly, I do not find that
Mingo was responsible in any way for Jones' discharge from the
partnership, D & R Contractors. Since Mingo was not responsible
for the discharge, it makes no difference for purposes of Mingo's
liability under the Act whether that discharge was in violation

634

of the Act. Accordingly, the Moti s for.Dismissal and Summary
Decision filed by Mingo are granted and the c mplaint against
Mingo is dismissed.3

Distribution:
Jeffrey A. Armstrong, Esq., Appalachian Research and Defense Fund
of Kentucky, Inc., P.O. Box 919, Barboursville, KY 40906 CCertif ied Mail>
David w. Burton, Esq., Leick, Hammons & Burton, First National
Bank & Trust Company Building, P.O. Box 2388, Corbin, KY 40701
(Certified Mail>
Larry E. Conley, Esq., P.O. Box 577 102 South Third Street, Williamsburg, KY 40769 (Certified Mail>
/nw

3This is a final disposition of the proceedings captioned Lonnie
Jones v. Mingo Coal Co., Inc., Docket No. KENT 83-25 7-D. Commission Rule 65, 29 C.F.R. § 2700.65. The case Lonnie Jones v. D & R
Contractors has been severed for further proceedings and assigned
Docket No. KENT 83-257-DCA).

635

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

ELIAS MOSES, .

MAR 131984

DISCRIMINATION PROCEEDING
Complainant

I

Docket No. KENT 79-366-D

v.
MSHA Case No. CD 79-217
WHITLEY DEVELOPMENT CORPORATION,
Respondent

Becks Creek Surf ace Mine

DECISION ON REMANDED ISSUE OF BACK PAY
Appearances:

William E. Hensley, Esq., and Don Moses,
Esq., 1/ Corbin, Kentucky, for Complainant;
David Patrick, Esq., Harrodsburg, Kentucky,
for Respondent.

Before:

Judge Steffey
PROCEDURAL BACKGROUND

The Commission issued a decision in this proceeding on
August 31, 1982, affirming my finding that complainant had
been discharged in violation of section lOS(c) (1) of the Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 815(c) (1),
and remanding the case to me "* * * for the limited purpose of
allowing the parties to present arguments and additional evidence concerning the proper amount of back pay to be awarded
the discriminatee" (4 FMSHRC at 1475).
After receiving the Commission's decision of August 31,
1982, I issued an order on September 7, 1982, asking counsel
for the parties to advise me by September 24, 1982, as to the
types of evidence and/or arguments they might wish to present
on the issues of back pay and asking whether they wished me to
convene a supplemental hearing to receive· evidence on the backpay issues. Thereafter, I issued an order on October 6, 1982,
granting the parties' request for an extension of time within
which to answer the questions asked in my order of September 7,
1982. The order of October 6 also answered respondent's questions regarding the kinds of evidence needed for resolving the
back-pay issues.

1/ Although Mr. Moses entered an appearance at the first
back-pay hearing, he has not been awarded any reimbursement
for attorney's fees.

636

Subsequently I issued an order on November 2, 1982, granting respondent's request for the convening of a hearing on the
issues of back pay. The hearing was scheduled for November 30,
1982, because respondent's counsel is the "Public Defender" in
his community and November 30, 1982, was the first day of a
3-day period then open on his calendar of hearings.
The hearing was convened on November 30, 1982, as scheduled, but it became obvious during the cross-examination of
respondent's owner that he did not havei in the hearing room the
detailed facts required to support his claim that complainant
would have been laid off in 1980 for economic reasons if he had
not been discharged on July 3, 1979 (BPTr. 31; 34-36). 2/ Because of other commitments (BPTr. 57; 58; 60) I there was no day
during the remainder of the week after the convening of the
hearing on November 30, 1982, when counsel for the parties and
respondent's owner could meet to make a detailed examination of
respondent's payroll records for the purpose of determining
when complainant would have been laid off for economic reasons
if he had not been discharged on July 3, 1979. Therefore, it
was agreed that I would personally examine respondent's payroll
records on December 1, 1982, that I would thereafter issue a
proposed decision on the issue of back pay, and that the parties would be allowed to comment on the proposed decision and
be granted a supplemental hearing if either party still believed
that one was necessary (BPTr. 63).
Before I could issue the proposed decision on the issue
of back pay, however, respondent filed on December 23, 1982, a
motion asking that the record be reopened for the purpose of
permitting respondent's counsel to introduce newly discovered
evidence which respondent's counsel claimed he could not have
discovered prior to the time the original hearing was held on
November 18, 1980. The Commission issued a supplemental order
on January 14, 1983, authorizing me to decide the issues raised
by the filing of respondent's motion for reopening the record
to receive newly discovered evidence. On January 18, 1983, I
issued an order requiring respondent's counsel to submit by
February 7, 1983, additional justification in support of his
motion for reopening of the record.
On January 20, 1983, I issued the proposed decision on
the issue of back pay. The proposed decision provided for the
parties to file responses to the proposed decision on back-pay
issues by February 21, 1983, and stated that no final decision
as to back pay would be issued until I had first resolved all
issues pertaining to respondent's motion for reopening the hearing.
2/ The letters "BP" are used as an abbreviation for the words
"back pay" and mean that I am referring to one or more pages
from the transcript of the hearings held on the back-pay issues
on November 30, 1982, and July 12, 1983, to distinguish such
references from other references to the transcript of the original hearing which was held on November 18, 1980.

637

Neither party filed any objections' to the proposed decision
within the 30-day period.
Therefore, oh February 28, 1983, I
wrote the parties a letter advising them that I had decided to
deny the motion to reopen the record and that I would issue the
proposed decision as to back pay in final form after respondent
had been given an opportunity to review my back-pay calculations
so that my decision could specify a verified amount of back pay
to which complainant was entitled.
Instead of replying to my request for a verification of
the calculation of back pay, respondent filed a motion requesting that I disqualify myself as the judge in this proceeding.
The Commission issued an order on March 23, 1983, 5 FMSHRC 297,
authorizing me to decide the issues raised in the motion for
disqualification and I issued an order on April 1, 1983, denying the motion for disqualification.
In that order, I also extended to April 18, 1983, the time for the parties to submit
objections, if any, to the proposed back-pay decision issued
January 20, 1983. Respondent duly filed on April 18, 1983, a
memorandum on the issues of back pay. That memorandum stated
that respondent wished to submit additional evidence with respect to the back-pay issues.
On May 19, 1983, I issued two orders. The first order
denied respondent's motion to reopen the record to receive
newly discovered evidence and the second order granted respondent's request for the convening of a supplemental hearing on
the back-pay issues. Because of respondent's role as public
defender and the possibility of conflicting prior commitments,
I provided for the parties to notify me of a date which would
be mutually convenient for holding the second hearing pertaining to back pay. After receiving replies to that request, I
issued on June 6, 1983, a notice providing for the second backpay hearing to be held on July 12, 1983.
The issues considered at the hearing held on July 12, 1983,
were broadened beyond the scope of the first back-pay hearing
by the fact that respondent's counsel raised for the first time
in this proceeding the issues of the amount which I had awarded
for attorneys' fees in my original decision issued March 31,
1981, 3 FMSHRC 746. An additional issue was raised with respect
to whether respondent properly refused to reinstate complainant
to his original position as a dozer operator when he reported
for work about 11 a.m. on February 8, 1983, instead of the designated day of February 7, 1983, because complainant's counsel
failed to notify him of the of fer of reinstatement until February 8, 1983.
After returning from the second back-pay hearing held on
July 12, 1983, I realized that if I ruled that respondent had
improperly refused to reinstate respondent because he was a day

638

late in reporting for work, I would have. to order respondent to
pay wages for a period in 1983 which had not been considered
when data were originally obtained for purposes of calculating
back pay.
Therefore, I issued an orde~ on August 18, 1983, providing for the parties to submit additional statements or arguments with respect to three questions posed in that order. Subsequently, I issued an order on Septemper 15, 1983, granting
respondent's motion for an extension oft time to October 5, 1983,
within which to reply to the order of ~ugust 18, 1983. Thereafter, I issued on September 27, 1983, '.an order granting complainant's alternative request for an extension of time within
which to file a reply brief. Finally, on November 8, 1983, I
issued an order requiring the parties to submit by December 2,
1983, (1) evidence with respect to the number of hours to be
used in calculating back pay for the period in 1983 during which
complainant was not employed because of his having reported a
day late for reinstatement and (2) information pertaining to any
wages which complainant may have earned during the applicable
period in 1983.
Complainant's reply to the order of November 8, 1983, was
mailed on December 7, 1983, which was 5 days after the date
provided for the mailing of replies in my order of November 8.
Therefore, on December 14, 1983, respondent's counsel filed a
motion asking that I dismiss complainant's claim for compensation for the period in 1983 during which complainant was not
reinstated. Complainant's counsel has filed no reply to respondent's motion.
I shall. hereinafter rule upon respondent's
mot,l.on of December 14, 1983, as a part of this decision.
I shall not hereinafter again refer to respondent's motion
for disqualification or motion for reopening the record because,
as indicated above, I have disposed of all issues raised in
those motions in my separate orders issued April 1, 1983, and
May 19, 1983. I have acted upon the motions in separate orders
apart from this decision because each of those matters has already been the subject of separate Commission orders and the
record should clearly reflect the disposition which I have made
as to each of those motions.
DETERMINATION OF FIRST PERIOD FOR REIMBURSEMENT OF BACK PAY
At the first back-pay hearing held on November 30, 1982,
complainant testified that the only wages he had earned between
the time of his discharge by respondent and the day of the hearing was an amount totaling $20,612.47 which had been paid to
him by Four J Coal Company and B. c. Mccullah Bros., Inc., for
work performed from June 15~ 1981, through May 25, 1982 (BPTr.
21). Although two different employers appear to have employed
complainant, the two names just indicate a change in a single
employer's name (Exh. 2). Complainant stated that although he
had tried to obtain work with other companies, he had been

639

unsuccessful in doing so and that the only other money he had
received between the time of his discharge on July 3, 1979, and
the date of the hearing held on November 30, 1982, had been in
the form of unemployment compensation.
Complainant was aware
that, if he ultimately receives back pay from respondent, he
will have to reimburse the agency which. paid him unemployment
compensation (BPTr. 22).
Respondent 1 s president, Pascual Wh;ite, testified that his
sales contract with Atlantic City Electric Company had been cancelled and that he had been unable to find any alternative market
for the coal he was producing (BPTr. 23-24). White said that he
had been reducing his coal-producing activities ever since 1980
and that if complainant had not been fired (BPTr. 51) on July 3,
1979, he would have been laid off on March 8, 1980, as a part of
the general reduction in his work force (BPTr. 28; 33). White
said that, for all practical purposes, he had completely closed
down his coal-producing business in 1982 and had laid off about
49 miners in the process (BPTr. 49). White gave some dates on
which he had laid off several miners.
The first of those dates
was March 8, 1980. Other dates were June 14, 1980, November 22,
1980, February 28, 1981, and June 20, 1981 (BPTr. 32; 34-36).
He said that the largest single reduction in the work force
occurred in mid April 1982 when his entire production of coal
from surface mines was discontinued (BPTr. 37).
During White's cross-examination, it became very obvious
that he did not have the detailed facts required to support a
finding that complainant would have been laid off in 1980 if he
had not been fired on July 3, 1979 (BPTr. 31; 34-36). Since
White did not bring to the hearing any of his payroll records
to support his allegations, counsel for the parties debated for
several pages what could be done to determine just when complainant would have been laid off for economic reasons if he
had not been discharged on July 3, 1979 (BPTr. 45-52). At that
point in the discussion, I suggested that it might be best for
me to go through the payroll records and report my findings to
the parties, but it turned out that counsel for complainant
could not attend a further discussion of the facts on Wednesday,
December 1 (BPTr. 57), that White could not be present for a
discussion on Thursday, December 2 (BPTr. 60), and that counsel
for respondent could not attend a meeting on Friday, December 3
(BPTr. 57-58).
The only alternative offered to my suggestion
that I examine all of respondent's payroll records was offered
by counsel for respondent, but that consisted of Xeroxing all
of the records and sending them to me at my off ice in Falls
Church, Virginia (BPTr. 59), but that would still have involved
my doing all of the parties' work for them and would have deprived me of the assistance of White's bookkeeper in case I
needed to ask any questions about the way the payroll records
were maintained (Tr. 60).

640

Because some of the parties, or t~eir counsel, were not
free to meet on any day during the remainder of the week, it
was agreed that I would issue a proposed decision after I had
gone to respondent's office in Williamsburg, Kentucky, and had
reviewed respondent's payroll records.' It was further agreed
that the parties would be permitted to file objections to the
proposed decision and would be provided with a further hearing
if they believed one was necessary (BPTr. 63).
I

In keeping with my agreement to e~amine the payroll records,
I drove to respondent's office in Willfamsburg on December 1,
1982, and spent the entire day in making notes pertaining to
respondent's employees who were either hired or laid off or
voluntarily quit during 1979, 1980, 1981, and up to December 1,
1982. Thereafter I prepared the appendices attached to this
decision and those appendices contain all of the information I
obtained as a result of examining respondent's payroll records.
As I have indicated in the procedural background given
above, the proposed decision was issued on January 20, 1983,
and respondent's counsel filed objections to the proposed decision on April 18, 1983.
I shall hereinafter explain what respondent's objections were and indicate the lack of merit to
them, but a discussion of his objections to the proposed decision will be facilitated if I first proceed with the rationale
originally used in my proposed decision for determining that
complainant would have been laid off for economic reasons on
June 12, 1982, if he had not been previously discharged on
July 3, 1979.
White testified that when a general reduction in force
was required because of the loss of coal orders and the reduction of coal production, it was his policy to lay off first the
employees who had been hired last (BPTr. 25).
In other words,
he followed the normal rule of laying off employees in accordance with their seniority. White's bookkeeper provided me with
the two sheets which comprise Appendix G.
I have added to
those two sheets the actual dates on which those employees
were laid off. While a few of the lay-off dates do not correspond exactly with seniority, or date of hiring, it is obvious that White did adhere somewhat closely to the principle
that a person with considerable seniority would be discharged
after a person with little seniority.
Since White himself said that it was his intention to
follow the general rule of laying off in accordance with the
employees' seniority, I have applied that rule in trying to
determine when complainant would have been laid off if he had
not been dropped from the payroll at the end of June 1979.
The discussion of the data which follows requires me to conclude
that complainant would have been laid off on June 12, 1982, if
he had not been dropped from the payroll at the end of June 1979.

641

Exhibit H in this proceeding is a 'copy of one of the
sheets in respondent's payroll records.' Exhibit H pertains to
complainant, but it shows the characteristics which are common
for all of respondent's payroll record~. The caption at the
top of the first column in Exhibit H reads "Week Ending". The
hours worked on each of the 7 days of a given week are shown
to the right of the column headed "Wee~ Ending". The dates
used in all of the attached appendices,, except in Appendix G,
are the dates. shown in the column head~d "Week Ending". The
first two columns of Appendix G were prlepared by respondent's
bookkeeper and Appendix G shows in the second column the exact
date in a given week when a person was hired. If one will
examine the first name, "Boyd Keith", in Appendix G with Boyd
Keith's name in Appendix A, he will find that I show Boyd Keith
in Appendix A as having been hired on 8/29/81, whereas respondent's bookkeeper shows in Appendix G that Boyd Keith was hired
on 8/24/81. In other words, the facts given in my appendices
are based on end-of-the-week dates, instead of exact dates.
For purposes of determining the time when complainant would
have been laid off for economic reasons, had he continued to
work for respondent, there is no need to make a finding which
is so prec,ise that it would make any difference whether an employee was hired on a Monday or a Friday or was discharged on
a Wednesday instead of a Friday. Of course, that would not be
true for computing back pay because a difference or mistake of
even 1 day would cost respondent approximately $60. Since
Exhibit H is a copy of the payroll record used to pay complainant, there is no lack of precise data for determining the
amount of back pay which is due to complainant.
Of the six persons, other than complainant, who either
quit or were laid off in 1979, no two persons were laid off on
the same day and only two persons were laid off in the same
month, so there is no pattern to show that a general lay off
occurred at all in 1979. Seven employees, excluding complainant, were hired on or after May 12, 1979, the date on which
Moses was hired. Therefore, the work force remained very
stable in 1979.
Of the 17 persons who either quit or were laid off in
1980, 3 left in January, 3 left in February, one left in March,
3 left in April, none left in May, 2 left in June, none left
in July, 1 left in August, 1 left in September, none left in
October, 2 left in November, and 1 left in December. Those
figures show that there was no general lay off at any time in
1980. Moreover, since respondent hired 28 employees in 1980
and lost only 17 employees, the work force increased by 11
persons during 1980. Consequently, there is no evidence to
show that Moses would have been laid off in 1980 because of
an overall down turn in respondent's business.

642

Of the 41 employees who either quit or were laid off in
1981, 1 left in January, 2 left in February, 5 left in March,
4 left in April, 4 left in May, 10 left in June, 2 left in
July, 3 left in August, 1 left in September, 3 left in October,
2 left in November, and 4 left in December. The reduction of
41 persons in respondent's work force supports a finding that
something unusual occurred to cause such a large reduction in
the work force within a period of 1 year.
It is difficult,
however, to make a finding that an extreme decline in respondent's production was occurring because the loss of 41 employees
was offset by the fact that respondent hired 35 new employees
in 1981. Consequently, the work force was less by only 6 employees at the end of 1981 than it was at the beginning of 1981.
Therefore, the facts do not support a finding that Elias Moses
would have been laid off in 1981 if he had not been discharged
in 1979.
The facts for 1982, however, support a finding that respondent's business was suffering a steady decline. Of the
41 employees who either quit or were laid off in 1982, 1 left
in January, 3 left in February, 3 left in March,' 22 left in
Apr~l, 1 left in May, 9 left in June, 1 left in July, none left
in~ugust or September, 1 left in October, and none left in
No ember. Since the data here being analyzed were collected on
De ember 1, 1982, no conclusion can be made. as to December,
ex ept that it is a fact that on December 1, 1982, respondent's
em loyees had shrunk to 8 if one excludes members of respondent's own family, a secretary, an airplane pilot, and an engineer who have been deliberately omitted from my consideration
of the question of when Elias Moses would have been laid off
if he had not been discharged in 1979. As opposed to the loss
in respondent's work force of 41 employees in 1982, only 12
new employees were hired. While the 12 new employees were all
laid off in 1982, they have to be deducted from respondent's
work force in order to arrive at a correct conclusion as to the
net reduction of the work force in 1982. When the aforesaid
calculation is made, the net loss to respondent's work force in
1982 was 29 employees (41-12 = 29) •
Elias Moses was· employed as an operator of a D-9 Caterpillar tractor which he operated most of the time, although he
did act as a mechanic's helper, hauled powder, and worked in
the repair shop on some days when dozers were not available
(Tr. 5-6; 32; 41; 63; 252). Respondent supplied me with a list
of 11 employees (Appendix G) who could operate dozers. All
but two of those employees were hired after Moses and not one
of them was discharged prior to April 1982 when five of them
were laid off. Four more dozer operators were laid off on
June 12, 1982, and only one of them is still employed and he
was hired in 1974, or about 5 years before Elias Moses was
hired.
The aforesaid figures support a conclusion that Elias

643

Moses would have been discharged on Jutje 12, 1982, along with
the four other dozer operators who were laid off on that day,
if he had not already been discharged at the end of June 1979.
The discussion above is easily understood if the facts
are set forth in the tabulation hereinafter shown. Payroll
data become important in the year 1979 '.because determining
seniority for purposes of laying off employees must be based
on those employees who were hired befoie and after May 12,
1979, the day on which Elias Moses was :hired.

1979
38 Number of persons, excluding complainant, on
payroll or hired in 19-79 (Appendix B)
-6 Number of persons, excluding complainant, who
left wdrk force in 1979 (Appendix I, page 1)
32 Number of persons actively employed at end of 1979
1980
28 Number of new persons hired in 1980 (Appendix C)
-17 Number of persons who left in 1980 (Appendix I,
page 1)
11 Net gain in personnel during 1980
32 Number of persons on payroll at end of 1979
+11 Gain in employees during 1980
43 Number of persons actively employed or on payroll
at end of 1980
1981
41 Number of persons who left respondent's employment
in 1981 (Appendix I, page 1)
-35 Number of new employees hired during 1981 (Appendix D)
6 Net loss in personnel during 1981
43 Number of persons on payroll at end of 1980
-6 Loss in employees during 1981
37 Number of persons actively employed or on payroll
at end of 1981
1982
41 Number of persons who left respondent's employment
in 1982 (Appendix I, pages 1 and 2)
-12 Number of new employees hired during 1982 (Appendix E)
29 Net loss in personnel during 1982

644

37 Number of persons on payroll at end of 1981
-29 Loss in employees during 1982
-S- Number of persons actively employed or on payroll
as of December 1, 1982 (Appendix F)
The eight persons who were still employed or were on the
payroll as of December 1, 1982, are set forth below as reflected
in Appendix F:
Employee

Date Hired

1. McClure, Richard

Before 5/12/79

2. Meadors, Homer S.

Before 5/12/79

3. Moses, Arvil, Jr.

Before 5/12/79

4. Moses, Issac

Before 5/12/79

5. Perry, Leonidas Xerxes
6. Trammel, Arnold

Before 5/12/79
Before 5/12/79

7. Moses, Dwight Wayne

8/29/81

8. Daugherty, David John

9/12/81

Type of Work
or Status
Foreman and
loader operator
Has been ill
for months
Truck driver and
laborer
Various jobs and
dozer operator
Shop mechanic
Truck driver and
laborer
Tipple laborer
and drill operator
Shop mechanic

The tabulation above showing the eight employees who were
still on respondent's payroll as of December 1, 1982, indicates
that two employees, Dwight Moses and David Daugherty, who were
employed after complainant, are still working.
It could be
argued, therefore, that if complainant had not been unlawfully
discharged in 1979, he would still be employed in one of the
positions now held by Dwight Moses or David Daugherty.
I do
not believe that such an argument is valid because there is
nothing in the record to show that complainant has any experience to qualify him for the position of either a tipple laborer
or a drill operator, although he does apparently have some
experience as a person who has filled explosive holes with
powder and other materials after the holes have been drilled.
Also, while the record does show that complainant has worked
as a mechanic's helper and a "powder man" (Tr. 41; 234), there
is nothing in the record to show that he could qualify as a shop
mechanic.
Consequently, I believe that my finding above to the
effect that complainant would have been laid off on June 12,
1982, when all but one of the other dozer operators were laid
off, is correct and is supported by the preponderance of the
evidence. Additionally, it should be noted that complainant
was hired by White as a "dozer man" (Tr. 251) and it would be
improper to hold that complainant should continue to be paid
for working as a "dozer man" after all other dozer operators
hired on or after the date of complainant's hiring have been
laid off.

645

Respondent's counsel objected before. the Commission to
my ordering complainant to be paid on the basis of a 40-hour
week because the payroll records (Exhibit H) show that he only
worked 40 or more hours for 3 of the 7 full weeks he was employed prior to his discharge.
Respondent failed to introduce
any evidence at the hearing held on November 30, 1982, to show
that my use of a 40-hour week is wrong. On the other hand, if
one adds the number of hours complainant worked during those
7 weeks, the total is 260 hours.
If 260 hours are divided by
7, the average number of hours worked per week is 37.143 hours.
The testimony received at the original hearing held on
November 18, 1980, shows that respondent was unable to work an
average of 40 hours each week because one or more dozers were
out of order. Also, it is a fact that complainant was offered
alternative work on the day of his discharge, but he refused
to perform the.alternative work because he felt that it was
assigned to him by the foreman in a degrading manner (Tr. 73;
234).
In the absence of any evidence to show that complainant
would have worked more than an average of 37.143 hours per week
if he had remained in respondent's work force up to June 12,
1982, I shall base the calculation of back pay on a working
week of 37.143 hours. When it comes to the question of paying
complainant for holidays, complainant should be paid the same
amount as other employees having equivalent seniority, as
described by White at BP transcript pages 39 through 41 and 88
through 93.
Consideration of Respondent's Objections to Proposed Decision
Alleged Failure To Allow for Loss of Work as Result of Inclement
Weather and Repair of Caterpillar Tractors
In my original decision issued March 31, 1981, 3 FMSHRC
746, I noted, at 3 FMSHRC 761 and 762, that complainant had
worked·mor.e-tlian 40 hours some weeks and less than 40 hours on
other weeks, and concluded that a 40-hour week would be a reasonable accommodation to allow for the vagaries of operating
surface mines, but respondent argued before the Commission that
he wanted to present additional evidence as to the issue of
back pay. Although respondent failed to present any evidence
at the first back-pay hearing with respect to the number of
hours per week complainant would have worked if he had continued
to be employed after his discharge on July 3, 1979, I reexamined
the 7 weeks during which complainant worked for respondent and
found that the total number of hours worked for respondent were
260. Dividing that total by 7 resulted in an average working
week of 37.143 hours. That figure of 37.143 hours appeared on
page 7 of my proposed decision issued January 20, 1983, and that
was the figure which I used in the calculation of back pay which

64G

I mailed to respondent on February 28, 1983, and requested respondent to check the accuracy of the calculations and let me
know by March 15, 1983, whether any errors in the calculations
had been found.
Respondent never did reply to my request that
the back-pay calculations be checked and the comments by respondent's counsel at the hearing (BPTr. 85-88) show that he
had never examined the calculation of back pay which I had
mailed to him on February 28, 1983, because he incorrectly
claimed that my back-pay calculations assumed that respondent
had worked 5 days each week for 52 weeks of the year (BPTr. 83).
Respondent further contended erroneously that my back-pay calculations had failed to take into consideration the time lost
because of bad weather and down-machine time '(BPTr. 84). Respondent's counsel then stated that an examination of respondent's payroll records indicated that respondent's employees
would lose 6 weeks of work each year because of bad weather and
time required to repair equipment (BPTr. 84). Complainant's
counsel agreed that respondent's estimate of 6 weeks lost because of bad weather and repair of equipment was a fair estimate
(BPTr. 84).
Thereafter, I asked that respondent's counsel look at the
back-pay calculation which I had mailed to him on February 28,
1983, and he recognized that I had used an average hourly working week of 37.143 hours and both respondent's and complainant's
counsel agreed that my use of a figure of 37.143 hours was
acceptable to them (BPTr. 100). Respondent's owner had testified at the original hearing that they worked 10 hours a day for
5 days each week. (Tr. 248).
If that were true, the working week
would amount to 50 hours (10 x 5 = 50) per week, or 2,600 hours
per year (SO x 52 = 2,600). Loss of 6 weeks of work as a result of bad weather and equipment repair would be 300 hours (6
x 50 = 300). Deduction of 6 weeks or 300 hours would result in
a working year of 2,300 hours which, when divided by 52, would
result in an average working week of 44.2 hours.
Exhibit H, however, shows that complainant never worked
more than 9 hours on any single day for.the 7 full weeks he was
employed by respondent. Application of the above assumptions
to a working week of 45· hours (9 x 5 = 45) and deduction of 6
weeks results in an average working week of 39.8 hours, instead
of the average working week of 37.143 hours used by me for calculating back pay in the letter mailed to the parties on February 28, 1983. Therefore the use of a 40-hour week in my
original decision (3 FMSHRC at 762) for purposes of calculating
back pay was nearer to respondent's claimed loss of 6 weeks of
work each year as a result of bad we~ther and equipment repair
than the 37.143-hour week which I obtained by dividing complainant's total hours worked by 7. Nevertheless, since both parties
have agreed that an average working week of 37.143 hours is
acceptable, I shall hereinafter use an average working week of

647

37.143 hours in calculating back pay for the period from the
time of complainant's discharge to June 12, 1982, the day he
would have been laid off for economic reasons if he had not
been discharged on July 3, 1979.
Holiday Pay
In my calculations of back pay mailed to the parties on
February 28, 1983, I excluded pay for all holidays because I
did not have precise data for use in determining which holidays,
if any, respondent's miners failed to work. At the second
back-pay hearing, respondent's owner, White, testified that the
miners are off for the entire week during which Christmas occurs. The miners are given a bonus for the Christmas week
based on their seniority.
If a miner has worked for less than
a year for respondent, he is given $50 and a ham; if he has
worked for 1 year, he is given a bonus of $100; if he has
worked for respondent for more than a year, he receives a full
week's pay (BPTr. 92). White valued a ham at $32 (BPTr. 93).
Since complainant would have been working for respondent
for less than a year by the time Christmas occurred in 1979,
complainant will be paid $50 plus a ham or $82 for the Christmas week of 1979. Since complainant would have been working
for respondent for over 1-1/2 years by Christmas of 1980, complainant will be paid a full week's salary for the Christmas
week of 1980. Complainant was working for another company during the Christmas week of 1981. Since complainant would have
been laid off for economic reasons by June 12, 1982, no amount
is required to be paid for the Christmas week of 1982. No back
pay will be awarded for other holidays on which White said he
did. not work (BPTr. 39; 88-91; 99).
Seniority Modified by Versatility
White had testified at the first back-pay hearing held on
November 30, 1982, that he had chosen the miners to be laid
off for economic reasons on the basis of seniority (BPTr. 25).
At the second hearing, respondent's cqunsel argued that the
work force was steadily declining for economic reasons in 1982
and that he believed complainant would have been laid off no
later than March 1982 because only the employees with more
seniority than complainant were kept to June 12, 1982, which
was the economic discharge date determined by me in my proposed
decision of January 20, 1983 (BPTr. 106). That claim cannot be
sustained because Appendices G, I, and J show that the three
miners (Rick Ball, Dellmar Sergent, and Richard Towe) who were
laid off in March 1982 were hired in 1981 and 1982, except for
Dellmar Sergent who was hired before complainant, but neither
Sergent nor the other two miners laid off in March 1982 were
dozer operators (BPTr. 108-109). Respondent, therefore, has

. 648

shown no reason why complainant, a dozer operator, would have
been laid off in March 1982 instead of one of the three nondozer operators who were actually laid off in March 1982.
Respondent's counsel also argued that complainant would
have been discharged in April 1982, when 22 employees were laid
off, rather than in June 1982, when the last group of dozer operators were laid off, because some of the operators who were
discharged on June 12, 1982, had greater versatility to perform
a variety of tasks than complainant has and that respondent kept
them on the payroll longer than respondent wculd have kept complainant because they had a greater value to respondent than complainant had (BPTr. 107; 120-121). Respondent's owner, White,
was unable, however, to give any facts to support his counsel's
argument. When White was asked why he had waited until June 12,
1982, to lay off the dozer operators listed on Appendices G and
I, page 2, he gave no reason other than seniority for retaining
Anderson and Baird until June 12, 1982, even though they were
hired after complainant. White also claimed that Daugherty,
another employee hired after complainant, is still working as
chief mechanic for the entire company and that Daugherty is
qualified to do things which complainant could not even attempt
to do (BPTr. 115). The argument pertaining to Daugherty is incorrect because the dozer operator laid off on June 12, 1982,
is named Jimmy Lee Daugherty, whereas the chief mechanic is
named David John Daugherty (Appendix A, Item 22) •
White was then asked to explain why Horner Walker was laid
off in April even though he had more seniority than Otis Anderson who was laid off in June. White explained that Walker was
laid off before Anderson because Walker had a dozer of his own
and wanted to get some contract work doing custom jobs like
constructing f arrn ponds and that Walker asked to be laid off
(BPTr. 118). White was also asked why Chester Tackett, who had
more seniority than Anderson, was laid off in April before
Anderson. White explained that Tackett was laid off before
Anderson because Tackett had been a reclamation dozer man for
Long Pit Coal Company in Tennessee and that they recalled him
to complete some reclamation work which had not been finished
(BPTr. 119).
It is obvious from White's testimony that neither
Walker nor Tackett were laid off because of a lack of versatility.
The final argument given by respondent in support of its
contention that complainant would have been laid off before
June 12, 1982, when the final group of dozer operators were
laid off, was that complainant, during the 7 weeks when he did
work for respondent, had declined to fill explosives holes on
the day of his discharge and had refused to operate a back dump
on a previous occasion (BPTr. 120). Respondent's argument that
complainant would have been laid off prior to June 1982 because
of his refusal to perform work other than that of a dozer operator is not supported by the preponderance of the evidence.

649

Complainant testified that he worked as a mechanic's helper
the first day of his employment by respondent (Tr. 5), that he
worked as a mechanic on other occasions, that he worked in respondent's shop and hauled powder (Tr. 32), that he helped install a tra.ck on a D-6 dozer, changed oil, and did other work
on dozers, such as replacing a muffler (Tr. 42; 63-64). White
himself testified that he assigned complainant various kinds
of work other than operating a dozer, including just cleaning
up in the shop, and that he always paid complainant the wages
of a dozer operator even when he was only doing the work of an
ordinary laborer (Tr. 252; 279).
Complainant agreed that he did refuse to operate a back
dump on one occasion because the work to be performed was very
close to a steep bank and complainant did not believe that he
had the expertise required for operating the back dump in that
situation (Tr. 79). Complainant said that no argument developed
when he declined to operate the back dump (Tr. 71). Complainant
also declined to fill explosives holes on Juiy 3, 1979, the day
of his discharge, because the foreman offered the job in what
complainant believed to be a degrading manner (Tr. 72-73). Although White claimed that none of the dozer operators laid off
on June 12, 1982, had ever refused to perform any kind of ~ork
they were asked to do (BPTr. 115; 120), he did not give any
examples of the kinds of work which any of them were qualified
to do in addition to operating dozers; therefore, the record
contains no facts which would support a finding that the dozer
operators laid off on June 12, 1982, had any more ability to
perform a variety of tasks than complainant possessed.
I pointed out at the hearing that I was not certain that
it was even appropriate to consider versatility in addition to
seniority in trying to determine the date on which complainant
would have been discharged for economic reasons if he had not
been unlawfully discharged on July 3, 1979, and respondent's
counsel was given a period of 30 days within which to file a
brief in support of his argument that I should take into consideration complainant's alleged lack of versatility in making
a determination as to the date when he would have been laid
off for economic reaso.ns (BPTr. 126). At the end of the 30-day
period, respondent's counsel filed on August 15, 1983, a letter
in which he stated that he had been unable to find any cases
directly in point on the issue of whether versatility shou],d be
given any weight over seniority in making a determination as to
when employees should be laid off when a company is reducing
its work force.
I have not been able to find any cases which
discuss that point either. Even if I had found some cases
which show that versatility should be considered in addition
to seniority, I still believe that it would be improper to give
weight to versatility in the absence of any evidence to support
such a contention. As I have demonstrated above, there is no
evidence in this record to show that complainant would have

650

been laid off any earlier than June 12, 1982, if he had not been
discharged on July 3, 1979.
ATTORNEY'S FEES
In my original decision issued on March 31, 1981, I ordered
respondent to pay complainant's counsel an amount of $2,500.
Respondent did not object to my award of attorney's fees in its
arguments before the Commission, but did raise the issue of attorney's fees when it filed its answer to my proposed decision
issued January 20, 1983. The primary ground used by respondent
in support of its objection to my awarding attorney's fees in
the amount of $2,500 was that complainapt's counsel did not send
respondent's counsel a copy of the letter in which he asked for
payment of 30 hours of work at a rate of $100 per hour. My
decision reduced the number of hours to 25 because of the failure by complainant's counsel to provide a breakdown of the time
spent in conferences as compared with representing complainant
at the hearing (3 FMSHRC at 762).
Complainant was represented by two attorneys at the first
back-pay hearing held on November 30, 1982.
In a letter to the
parties dated February 28, 1983, I ruled that nothing had occurred at the hearing held on November 30, 1982, which warranted
complainant's being represented by two attorneys and that I
would not entertain a bill for attorney's fees which reflected
more hours for attending that hearing than the time which would
have been expended by one attorney.
At the second back-pay hearing held on July 12, 1983, complainant's counsel stated that he would forego any additional
compensation for work done in connection with the back-pay issues
if respondent's counsel would agree to the prior award of $2,500
which I had provided for in my original decision. Respondent's
counsel agreed to accept the of fer of settlement of the issue of
attorney's fees (BPTr. 103-104). The settlement of the issue of
attorney's fees was thereafter mentioned ·(BPTr. 128) in connection with the possibility of complainant's counsel having to
write a brief in reply to any brief which respondent's counsel
might submit with respect to use of versatility in determining
the date of complainant's being laid off for economic reasons.
It was agreed at that time that complainant's counsel would submit an additional claim for attorney's fees if he believed that
an additional amount should be awarded (BPTr. 128). Inasmuch
as no additional request for attorney's fees has been submitted
by complainant's counsel, no additional amount for attorney's
fees needs to be awarded as a part of this back-pay decision.

651

DETERMINATION OF SECOND PERIOD FOR REIMBURSEMENT OF BACK PAY
Stipulation of Facts Regarding Complainant's Failure to be
Reinstated
Respondent's counsel wrote a letter dated February 2, 1983,
to complainant's counsel advising him "* * * we are now offering Mr. Moses a position with Whitley Development Corporation
and he is to report to work on Monday, February 7, 1983, at the
hour of 8:30 a.m., at the main office of the corporation." The
letter was sent by certified mail and post office personnel
placed a notice in the post office box of· complainant's counsel
on Friday, February 4, 1983, to the effect that a certified
letter had been received by the post office.
Complainant's
counsel did not go to the post office until Monday, February 7,
1983, at which time he signed the return receipt showing that
complainant's counsel actually received on February 7 the letter
offering complainant a job at 8:30 a.m. on February 7, 1983
(BPTr. 69-74).
Complainant's counsel called another attorney who lives
closer to complainant than the attorney who represents complainant in this proceeding.
That attorney did not advise complainant that he had been offered a job until the following day,
February 8, 1983.
Complainant's counsel also called respondent's
counsel to advise him that the letter of February 2, 1983, had
not been received until February 7, 1983, but respondent's
counsel was unavailable. Although respondent's attorney attempted to return the call from complainant's counsel on t~e
next day, February 8, 1983, complainant's counsel did not know
that respondent's counsel had called because he received no
message to the effect that his call had been returned.
Respondent's counsel submitted a telephone bill to prove that he had
tried to return the call from complainant's counsel on February 8, 1983 (BPTr. 74-80).
As previously indicated above, complainant was advised on
February 8, 1983, that he had been off~red a position by respondent and complainant did report fo_r work about 11: 30 a.m.
on February 8, 1983, but respondent's owner, White, advised
complainant that his failure to report on the day the position
was offered, that is, February 7, 1983', had caused respondent
to call another dozer operator to work in complainant's place
and, for that reason, respondent did not any longer have a
position to offer complainant.
White's testimony shows that complainant had been recalled
to the position of a dozer operator primarily to perform some
reclamation work which was completed on March 31, 1983 (BPTr.
131). Therefore, if complainant had been given a job on February 7, 1983, it would have lasted only for the period from
February 7 through March 31, 1983.

652

Consideration of Parties' Arguments as to Reinstatement
An order was issued on August 18, 1983, providing the
parties with an opportunity to file briefs on the following
three issues:
(1) Was complainant properly denied reinstatement for appearing 1-1/2 days after the designated
time of reinstatement, taking into consideration
that he appeared for reinstatement as soon as he
learned of the offer of reinstatement?
(2) If it is held that complainant is still entitled to be reinstated to his job as a dozer operator, should he receive back pay for the period from
February 8 through March 31, 1983, which is the
period of time worked by the dozer operators recalled
at the same time complainant was recalled?
(3) Assuming that complainant is entitled to
back pay for the [37-1/2]-day period involved, is
there any reason why the calculation should not be
made on the basis of the 37.143-hour work week previously established for computing back pay?
The Issue of Reinstatement
Respondent argues that complainant was properly denied
reinstatement for his failure to report at the time designated
in the letter of February 2, 1983, which had been sent to complainant's counsel in plenty of time for complainant to have
been on notice that the job offer required complainant to report for work at 8:30 a.m. on February 7, 1983. Respondent
states that complainant's contention that he could not be
reached on February 7,·when the offer of reinstatement was required to be fulfilled, because of the need for complainant's
counsel to provide notice through another attorney in the
State of Tennessee, is not a valid argument because it would
have been unethical for respondent or respondent's counsel to
have contacted complainant directly, rather than through the
attorney who is representing complainant in this proceeding.
Respondent's brief also contends that his business was in
need of inunediate income and that he could not be expected to
delay the work which he expected to do on February 7, 1983, because respondent needed the inunediate income to be derived from
that work. Respondent claims that it would have been a simple
matter for complainant's co~nsel to have telephonically advised
respondent's counsel, or respondent directly, that he had not
been able to reach his client so that respondent could have
held the position open for an additional period of time.

653

Complainant's brief argues that respondent failed to provide complainant with sufficient time prior to the date given
for reporting for work. Complainant contends that respondent
should have mailed a copy of the lette~ offering reinstatement
to complainant as well as to his attorney of record in this
proceeding. It is argued that such dual notification would
have allowed for any possible failure qf communication between
complainant and his counsel and would have enabled complainant
to report for work at the designated t~me.
;

Section 2700.7(d) of the Commission's rules of procedure,
29 C.F.R. § 2700.7(d), provides as follows:
(d)
Service upon representative only. Whenever
a party is represented by an attorney or other authorized representative who has signed any document filed
on behalf of such party, or otherwise entered an appearance on behalf of such party, service thereafter
shall be made upon the attorney or other authorized
representative.
·
Since complainant has an attorney who has entered an appearance
on his behalf and who has signed numerous documents on his behalf in this proceeding, there can be no doubt but that respondent's counsel fulfilled his legal obligation as to providing
complainant with notice of the offer of reinstatement when he
mailed the letter offering reinstatement to complainant's
counsel.
It is interesting to note, however, that each attorney's
brief condemns the other attorney for failure to get in touch
with his client directly if the attorney of record was unavailable. Specifically, respondent's counsel argues that complainant's counsel should have called his client directly if complainant's counsel tried to get in touch with him personally
on February 7, 1983, but could not do so. Likewise, complainant's counsel argues that respondent's counsel should have
mailed a copy of the offer of reinstatement directly to complainant to assure that complainant would receive notice of
the offer in sufficient time to report for work at the designated time. While it is true that when two parties in a proceeding are both represented by attorneys, each attorney is
required to communicate with the other party's attorney, some
common sense must prevail when the communication pertains to
a matter of vital importance to an attorney's client. Therefore, when complainant's counsel received respondent's offer
of reinstatement after 9 a.m. on February 7, 1983 (BPTr. 71),
offering complainant a job ~nd asking him to report for work
at 8:30 a.m. on February 7, complainant's counsel had to realize that there was no way he could notify his client of the
offer of reinstatement in sufficient time to permit his client
to report for work at the appointed hour. Therefore, if an

\

654
\

immediate call to the office of responqent's attorney failed to
result in a personal communication.with respondent's attorney,
then, at that point, complainant's attorney would have been
acting in his client's interest by cal~ing respondent's office
directly to explain why his client would be unable to report
for work at 8:30.a.m. Therefore, respondent's offer of reinstatement mailed on February 2, 1983, offering complainant a
job on February 7, 1983, cannot be said to be at fault.
On the other hand, it is a fact that complainant did report to work about 11:30 a.m. on February 8, 1983, which was
as soon as complainant could do so after he was finally advised
of the offer of reinstatement by his attorney. The reason
given by respondent for refusing to allow complainant to commence working on February 8, 1983, is given on page 2 of respondent's brief which states that respondent could not be expected "* * * to delay the entire operation of its business
which has been doing very poorly and which was in need of immediate income in order to satisfy the needs of one particular
Petitioner in this matter."
The reason given by respondent for refusi:ng to reinstate
complainant is not supported by the preponderance of the evidence.
Respondent's owner, White, testified at the hearing
that the primary work for which six or seven dozer operators
had been recalled was reclamation work. Although his statement is somewhat confusing, he described the kind of work which
the dozer operators were performing as follows (BPTr. 131}:
THE WITNESS: We're mining some coal -- and
reclamation work. They're not working -- they're
working, doing -- for the bonding company -- and
the reclamation work on the jobs. All we're doing
is the reclamation right now.
White subsequently explained that Whitley Development Corporation, the respondent in this proceeding, was the entity which
recalled complainant and the other dozer operators, that Whitley
employed them through March 31, 1983, and that Whitley was
dissolved as a corporation at that time.
In such circumstances,
it does not appear that the work which complainant was recalled
to do was of such an urgent nature that respondent would have
been unduly prejudiced in its business activities if it had
hired at least one of the dozer. operators with the understanding that he might not be retained if complainant should appear
a day or so late because respondent's job offer was delayed in
reaching complainant.
Another reason for conc.luding that respondent would not
have been prejudiced by allowing complainant to resume his
previous job as a dozer operator is that White testified that

65~i

he had recalled seven dozer operators, :but that two of them
(Anderson and Walker) found other work and either declined to
accept White's offer of a job or left after working only a
short time (BPTr. 131). Therefore, White did not actually
have the full complement of dozer operators he had recalled
and his reinstatement of complainant as a dozer operator would
not have overly enlarged White's work force.
For the foregoing reasons, I find;that respondent failed
to justify its refusal to reinstate co~plainant to the position
of a dozer operator simply because he reported 1-1/2 days late
to accept the position.
Even if respondent had shown a good reason for refusing
to reinstate complainant to his former position as a dozer operator, or to an equivalent position, he would still have been
obligated to reinstate complainant. The Commission and the
courts have held that a respondent who has violated section
lOS(c) (1) of the Act is obligated to reinstate the miner who
has been illegally discharged. That obligation continues to
exist until the discharged miner specifically declines to accept the offer of reinstatement (Glenn Munsey, 2 FMSHRC 3463
(1980); and Heinrich Motors, Inc. v. N. L. R. B., 403 F.2d 145
(2d· Cir. 1968)). Therefore, I find that respondent was obligated to reinstate complainant to his former job as a dozer
operator when he appeared about 11:30 a.m. on February 8, 1983,
after having received notice of reinstatement on that same day.
Period of Time for Which Complainant is Entitled to Receive
Back Pay
Respondent's brief (p. 3) argues that complainant is not
entitled to any back pay for any period after February 8, 1983,
because complainant failed to accept the off er of reinstatement
in a timely manner.
Respondent also notes that if I award complainant any back pay for the period after February 8, 1983, I
should obtain evidence to show that complainant did not, during
that period, have any income which should be offset against any
back pay awarded by me.
Complainant's brief argues that respondent's offer of reinstatement was deliberately intended to give complainant such
a short time period between the making of the of fer and the
date complainant was required to report for work, that respondent would be able to refuse to employ complainant on the ground
that he had failed to accept the offer in a timely fashion.
Complainant contends, therefore, that since the offer was not
made in good faith, complainant is entitled to be awarded back
pay for the entire period from February 8, 1983, through
March 31, 1983.

656

I have already held in the previo~s topic above that respondent is obligated to reinstate complainant to his previous
job, or an equivalent job, until such time as complainant
specifically declines to accept reinstatement.
Therefore, it
is unnecessary for me to rule on complainant's argument that
respondent failed to make the of fer of reinstatement in good
faith.
Determination of Average Hourly Week for Second Back-Pay Period
Respondent properly stated in its brief that I would have
to determine for the second back-pay period whether respondent
was shut down at times between February 8, 1983, and March 31,
1983, so as to produce a different hourly working week' for calculation of back pay for the second period as compared with
the 37.143 hourly week previously determined for the first backpay period.
Therefore, I issued an order on November 8, 1983,
providing for respondent to submit information pertaining to
determining the average hourly working week for the second backpay period. The order also provided for complainant to submit
an affidavit specifying what additional income, if any, he had
earned during the period from February 8 through March 31, 1983.
In reply to the order of November 8, 1983, respondent submitted an affidavit stating that a review of the payroll records
during the applicable period of time shows that the dozer operators employed during that period of time worked an average
hourly week of 36.8 hours. Therefore, I shall hereinafter use
the aforesaid average hourly week for computing back pay for
the period from February 8 through March 31, 1983.
In reply to the order of November 8, 1983, complainant submitted an affidavit stating that he has not worked for any employer since May 24, 1982. Therefore, no additional offset of
wages will be required to be made in computing back pay for the
period from February 8 through March 31, 1983, other than the
wages which were paid to complainant by B. c. Mccullah Bros.
and which have already been discussed on page 4 of this decision, supra.
Respondent's Motion to Dismiss Complainant's Right to Back Pay
for Second Period
My order of November 8, 1983, required complainant's
counsel to mail by December 2, 1983, an affidavit advising me
of any income which complainant may have earned for the period
from February 8 through March 31, 1983. The affidavit was not
prepared until December 5 and was not mailed until December 7,
1983. Therefore, on December 14, 1983, respondent's counsel
filed a motion asking that I dismiss complainant's right to
back pay for the period from February 8 through March 31, 1983,
for complainant's failure to comply with the time limitations
in my order of November 8, 1983.

657

I

There would have been more merit to respondent's motion
than there is if the sanction requested had been against complainant's counsel instead of against complainant personally.
My order was mailed to complainant's counsel and the return
receipt shows that complainant's counsel received the order on
November 10, 1983. Although the affidavit was prepared by
another attorney who appears to live iri Tennessee, complainant's
attorney still had a period of 22 days '.within which to prepare
what turned out to be a two-line affid~vit and mail it by December 2, 1983. The record shows that complainant only completed
the first grade and that he cannot read very well {Tr. 101).
Therefore, complainant could not have prepared an affidavit
without the assistance of counsel and it is probably safe to
conclude that complainant was unaware of the fact that his attorney had failed to prepare the affidavit in a timely fashion.
For the foregoing reasons, I believe that any sanctions
for complainant's failure to submit the affidavit in a timely
manner should be against complainant's counsel, rather than
against complainant, who is not responsible for the lack of
diligence on the part of his attorney.
If complainant's counsel
were asking for any attorney's fees at all for his work done in
connection with the remanded back-pay issues, I would be inclined to deduct some amount from any fees which he might be
requesting. As I have indicated under the heading of "Attorney's Fees", page 16, supra, complainant's counsel has waived
any claim for attorney's fees in connection with the back-pay
issues.
Therefore, I find that the grant of respondent's motion would unduly penalize complainant because of his attorney's lack of diligence and that the motion to dismiss complainant's right to back pay for the period from February 8 through
March 31, 1983, should be denied.
It should be noted that respondent is hardly in a position
to be filing a motion for imposition of sanctions for failure
of complainant to timely comply with my order of November 8,
1983, in view of the fact that respondent never did comply with
the request in my letter of February 28, 1983, that he check my
back-pay calculations submitted to him for examination.
Respondent's refusal to comply with my request hereinafter forces
me to make extensive back-pay and interest calculations which
the Commission held was not a judge's obligation in its decision in Secretary of Labor on behalf of Milton Bailey v.
Arkansas-Carbona Co., 5 FMSHRC 2042, 2054, issued December 12,
1983, in Docket No. CENT 81-13-D.
It would be most unfair for
me to impose sanctions on complainant for mailing an affidavit
5 days late and ignore respondent's outright refusal to make
a reply of any kind to my request that it check the back-pay
calculations which were submitted to it on February 28, 1983.

658

CALCULATION OF BACK-PAY Al.~D INTEREST
In its decision issued December 12, 1983, in Secretary of
Labor on behalf of Milton Bailey v. Arkansas-Carbona Company,
5 FMSHRC 2042, Docket No. CENT 81-13-D~ the Commission adopted
for back-pay awards "* * * the interest formula used by the
National Labor Relations Board--that i~, interest set at the
'adjusted prime rate' announced semi-a*nually by the Internal
Revenue Service for the underpayment a~d overpayment of taxes"
(5 FMSHRC at.2042).
The Commission stated that the interest
rates adopted in its Bailey decision should be applied to all
"* * * discrirninatfon cases pending before our judges as of the
date of this decision" (5 FMSHRC at 2054). The Commission also
stated on page 2054 of its decision that "* * * [t)he burden of
computation of interest on back pay awards should be placed
primarily on the parties to the case, not the judge, in order
to comport with the adversarial system."
I am fairly certain that I understand how to calculate the
interest, because of the Commission's well-presented example
given in footnote 15 of its Bailey decision.
In any event, I
believe that I shall have to assume the burden of calculating
the principal amount of back pay due to complainant, as well as
the interest, because, as indicated above, respondent has already declined to reply to my prior request that it review my
previous back-pay calculations and I have no reason to assume
that respondent would reply to a second request that it calculate
the amount of back pay and interest which I have found are due
to complainant. An additional reason for me to believe that I
must assume the burden of making the calculations is that the
Commission's Bailey decision, also at page 2054, indicates that
both parties should work together in making the back-pay and
interest calculations.
I have found in this proceeding that
there is so much hostility between respondent and complainant
that there is no likelihood that I could get the parties to
prepare a joint calculation of back-pay and interest.
In such
circumstances, I believe that it is incumbent upon me to calculate the back pay and interest as a part of this decision.
I. shall include with the copies· of my decision mailed to
the parties a copy of the Commission's decision in the Bailey
case.
Providing each party with a copy of the Bailey decision
will enable the parties to review my calculations, if they are
inclined to do so, and correct any errors I may have made prior
to the time that any back-pay amount has to be paid to complainant.
As I explained in my letter to the parties dated February 28, 1983, I am beginning my computations of back pay on
July 12, 1979. The reason for starting with the date of July 12
is that the foreman testified that the dozer was not returned

659

from the repair shop until July 11 (Tr. 240).
Inasmuch as complainant had declined the foreman's offer of an alternate type
of work on July 3, 1979, the record supports a finding that,
even if complainant had not been discharged on July 3, he would
not have been able to operate a dozer until after the dozer had
been returned from the repair shop on July 11, 1979. Therefore,
the calculation of the number of days for which complainant is
entitled to back pay for the first period begins with July 12,
1979, and extends to June 12, 1982, when complainant would have
been laid off for economic reasons.
There must, of course, be deducted from comolainant's back
pay the wages he was paid by B. c. Mccullah Bros., Inc., for
the period from June 15, 1981, through May 25, 1982 (Exh. l;
BPTr. 21). Since complainant worked for no employer other than
Mccullah, it is relatively easy to make the required offsets
for the wages paid to complainant by Mccullah, as hereinafter
shown.
Calculation of Principal Amount for First Period extending from
July 12, 1979, through June 12, 1982
1979
Third Quarter
July 12 through July 31 =
August 1 through August 31 =
September 1 through September 30, excluding Labor
Day (BPTr. 90) =
56 = total number of days worked in third quarter

14 days
23 days
19 days

As I have previously explained in my decision, respondent
was operating surf ace mines which were closed on some days because of bad weather. At other times, complainant was unable
to work because the Caterpillar tractors, or dozers, which he
normally operated were in the shop for repairs. Therefore, the
average number of hours worked each we~k has been adjusted to
37.143 hours to allow for the time fo~ which complainant would
not have been paid even if he had continued to be an employee
up to June 12, 1982, when he would.have been laid off for
economic reasons.
In order to determine the hours for which complainant
should be paid on a daily basis, it is necessary to divide the
average number of hours per.week of 37.143 by 5 which results
in a daily average number of hours of 7.429.
It should be
borne in mind, that respondent normally worked either a 9-hour
or a 10-hour day. Therefore, a reduction of the daily hours
to 7.429 is a larger allowance for bad weather and equipment
repair than it would appear to be i.f one thinks of a normal
8-hour working day which is used in underground coal mines.

660

The next step in the calculation is multiplying the number
of days in the quarter (56) by the average number of hours
worked (7.429) to produce a total of 416.02 hours worked in the
third quarter. Multiplying 416.02 hours by $7.50 produces
$3,120.15 which is the total back pay owed to complainant for
the third quarter. The procedure here explained will be employed
for calculating the back pay due for the remainin9 quarters.
Fourth Quarter
October 1 through October 31 =
November 1 through November 30, excluding 2 days
for Thanksgiving (BPTr. 98) =
December 1 through December 31, excluding Christmas
week (BPTr. 98) =
59 = number of days in fourth quarter

23 days
20 days
16 days

438.31 = hours worked in fourth quarter (59 days x 7.429 hours)
$3,287.32 =back pay for fourth quarter (438.31 hours x $7.50)
82.00 =plus amount due for Christmas week ($50 +ham
or $32) (BPTr. 98)
$3,369.32 = total amount of back pay due for fourth quarter
1980

First Quarter
January 1 through January 31, excluding New Year's
Day =
February 1 through February 29 =
March 1 through March 31 =
64 = number of days in the first quarter

22 days
21 days
21 days

475.46 = hours worked in first quarter (64 x 7.429 hours)
$3,565.95 = total back pay due for first quarter (475.46
hours x $7.50)

Second Quarter
April 1 through April 30 =
May 1 through May 31, excluding Memorial Day
(BPTr. 39) =
June 1 through June 30 =
64 = number of days in the second quarter

22 days
21 days
21 days

475.46 = hours worked in secpnd quarter (64 x 7.429 hours)
$3,565.95 = total back pay due for second quarter (475.46
hours x $7.50)

661

1980 (Continued)
Third Quarter
July 1 through July 31, excluding July 4 (BPTr. 90) =
August 1 thro.ugh August 31 =
.
September 1 through September 30, excluding Labor
Day =
.
64 = number of days in the third quarter

22 days
21 days
21 days

475.46 = hours worked in third quarter (64 x 7.429 hours)
$3,565.95 =total back pay for the third.quarter (475.46
hours x $7~50)
Fourth Quarter
October 1 through October 31 =
November 1 through November 30, excluding 2 days
for Thanksgiving =
December 1 through December 31, excluding Christmas
week =
59 = number of days in the fourth quarter

23 days
18 days
18 days

438.31 = hours worked in the fourth quarter (59 x 7.429 hours)
$3,287.32 =back pay for fourth quarter (438.31 hours x $7.50)
278.57 =plus amount due for Christmas wee~ (1 week's salary
for employees who have worked for respondent for
over 1-1/2 years (BPTr. 92))
$3,565.89 = total amount of back pay due for fourth quarter
1981
First Quarter
January 1 through January 31, excluding. New Year's
Day =
February 1 through February 28 =
March 1 through March 31 =
63 = number of days in the first quarter

21 days
20 days
22 days

468.03 = hours worked in first quarter (63 x 7.429 hours)
$3,510.22 = total ba9k pay due for first quarter (468.03
hours x $7.50)

662

1981 (Continued)
Second Quarter
April 1 through April 30 =
May 1 through May 31, excluding Memorial Day =
June 1 through June 14 (since complainant began
working for B. c. Mccullah Bros., Inc., on
June 15, 1981, and worked for Mccullah Bros.
through Dece:ritber 31, 1981 (during which period,
he earned a gross amount of $11,790.59), complainant is not entitled to any back pay from June 15
through December 31, 1981, because his earnings
from Mccullah Bros. were greater than the amount
he would have earned if he had continued to work
for respondent at $7.50 per hour for a working
week of 37.143 hours) =
52 = nu:ritber of days in the second quarter

22 days
20 days

10 days

386.31 = hours worked in the second quarter (52 x 7.429 hours)
$2,897.32

= total amount of back pay due for second quarter
(386.31 hours x $7.50)

Third and Fourth Quarters
As explained above, complainant was working for Mccullah
Bros. during the third and fourth quarters of 1981. Although
Mccullah Bros. paid the same basic rate of $7.50 per hour which
was paid by respondent, complainant worked more hours per day
for Mccullah Bros. than the 7.429 hours used for calculating
back pay in this proceeding. Since complainant earned more by
working for Mccullah Bros. than he would have received if he
had continued to work for respondent, it is not necessary to
award any back pay for the third and fourth quarters of 1981.
1982
First Quarter
Since complainant worked for Mccullah Bros. from January 1,
1982, through May 25, 1982, during which time he earned $8,821.88,
complainant is not entitled to any back pay for that period because he worked more hours per day than the 7.429 hours being
used to calculate back pay in this proceeding.
Therefore, his
actual earnings were greater than the amount he would have received had he continued to work for respondent.
Second Quarter
As explained above, complainant was working for Mccullah
Bros. through May 25, 1982. Since complainant did not have a

663

1982 (Continued)
Second Quarter (Continued)
job after May 25, 1982, he would have been entitled to receive
back pay for the remaining days in the second quarter, except
that I have hereinbefore found that complainant would have been
laid off on June 12, 1982, for economic reasons even if he had
not been unlawfully discharged and had continued to work for respondent. Consequently, complainant is entitled to be paid only
for the period from May 26 through June 12, 1982, or for a
period of 13 days, as follows:
13 = number of days in the second quarter (May 26 through June 12,
1982)
96.58

= hours worked in the second quarter (13 x 7.429 hours)

$724.35 = total back pay due for second quarter (96.58 hours x
$7.50)
Calculation of Principal Amount for Second Period Extending
from February 8, 1983, through March 31, 1983
Inasmuch as I found on pages 17-23 of this decision, supra,
that complainant is entitled to back pay for the period he would
have worked if respondent had not declined to reinstate him to
his former position as a dozer operator when he reported for
work about 11:30 a.m. on February 8, 1983, it is necessary to
compute the amount of back pay complainant would have received
if he had been permitted to work as long as the other dozer operators who were recalled at that time.
Since the period of
employment extended only from February 8 through March 31, 1983,
it is necessary to compute back pay only for the first quarter
of 1983. Also, since complainant did not report for work until
about noon on February 8, he is entitled to be paid for only a
half day on February 8.
1983
First Quarter
January 1 through January 31 is not applicable because respondent did not produce coal during that
period.
February 8 through February 28 =
March 1 through March 31 =
37-1/2 = number of days in t~e first quarter

14-1/2 days
23 days

Since the average hourly week applicable for the first
quarter of 1983 is 36.8 hours, as hereinbefore explained on
page 22, supra, of this decision, it is necessary to divide

664

36.8 by 5 to determine the average number of hours worked each
day.
That calculation produces an average daily number of hours
of 7.36 hours.
276.0 =hours worked in the first quarter (37.5 days x 7.36 hours)
$2,070.00 = total back pay due complainant during the year 1983
(276 hours x $7.50)
Since complainant was unemployed during the period from
February 8 through March 31, 1983, it is not necessary to deduct
any earnings from other employers in computing back pay for the
second period for which complainant is entitled to back pay.
Interest Calculations for Back Pay Due Complainant for 1979,
1980, 1981, 1982, and 1983
The Commission's Bailey decision, supra, explains on pages
2051 and 2052 that interest is to be calculated on a quarterly
basis and that the interest is to run from the last day of each
quarter for which back pay is due through the date of payment.
I am calculating the interest through the first quarter of
1984, or March 31, 1984, because I have no way to determine
when the back-pay reimbursement will actually be made.
The interest rates are given on page 2051 of the Bailey
decision as follows:
January 1, 1978 to December 31, 1979
January 1, 1980 to December 31, 1981
January 1, 1982 to December 31, 1982
January 1, 1983 to June 30, 1983

.. . .. . .

......
January 1, 1984 to June 30, 1984 . . . . . . .

July 1, 1983 to December 31, 1983

6% per year
(.0001666% per day)
12% per year
(.0003333% per day)
20% per year
(.0005555% per day)
16% per year
(.0004444% per day)
11% per year
(. 0003055 % per day)
11% per year
(.0003055% per day)

I have hereinbefore determined that complainant is entitled
to the following amounts of back pay during the quarters
listed below:
1979
Third quarter:
Fourth quarter:

$3,120.15
$3,369 •.32

665

1980
First quarter:
Second quarter:
Third quarter:
·Fourth quarter:

$3,565.95
$3,565.95
$3,565.95
$3,565.89

1981
First quarter:
Second quarter:

$3,510.22
$2,897.32

1982
Second quarter:

$

724.35

1983
First quarter:

$2,070.00

Total Principal Amount of Back Pay:

$29,955.10

Employing the calculation method explained by the
Commission in Footnote 15 on page 2053 of the Bailey decision,
~' the interest for each quarter of back pay should be calcul¢tted as follows:
Third Quarter of 1979 through March 31, 1984
$3,120.15 x 91 days x .0001666% = $ 47.30 which is 6% interest
from last day of September 1979 through
December 31, 1979.
$3,120.15 x 720 days x .0003333% = 748.76 which is 12% interest
from January 1, 1980,
through December 31,
1981.
$3,120.15 x 360 days x· .000555~%

= 623~96 which is 20% interest
from January 1, 1982,
through December 31,
1982.

$3,120.15 x 180 days x .0004444% = 249.58 which is 16% interest
from January 1, 1983,
through June 30, 1983.
$3,120.15 x 270 days x .0003055% = 257.36 which is 11% interest
from July 1, 1983,
through March 31, 1984.

666

Total interest due on third
quarter of 1979 back pay ••••

$1,926.~6

Fourth Quarter of 1979 through March 31, 1984
$3,369.32 x 1 day x .0001666% =

$

.56 which is 6% interest on
last day of fourth
quarter of 1979.

$3,369.32 x 720 days x .0003333% = 808.55 which is 12% interest
from January 1, 1980,
through December 31,
1981.
$3,369.32 x 360 days x .0005555% = 673.79 which is 20% interest
from January 1, 1982,
through December 31,
1982.
$3,369.32 x 180 days x .0004444% = 269.51 which is 16% interest
from January 1, 1983,
to June 30, 1983.
$3,369.32 x 270 days x .0003055% = 277.91 which is 11% interest
from July 1, 1983,
through March 31, 1984.
Total interest due on fourth
quarter of 1979 back pay •••• $2,030.32
First Quarter of 1980 through March 31, 1984
$3,565.95 x 631 days x .0003333% = $749.96 which is 12% interest
from last day of March
1980 through December 31,
1981.
$3,565.95 x 360 days x .0005555% =

713.11 which is 20% interest
from January 1, 1982,
through December 31,
1982.

$3,565.95 x 180 days x .0004444% =

285.24 which is 16% interest
from January 1, 1983,
through June 30, 1983.

$3,565.95 x 270 days x .0003055% =

294.13 which is 11% interest
from July 1, 1983,
through March 31, 1984.

Total interest due on first
quarter of 1980 back pay ••••

$2,042.44

667

Second Quarter of 1980 through March 31, 1984
$3,565.95 x 541 days x .0003333% = $642.99 which is 12% interest
on last day of June 1980
through December 31,
1981.
$3,565.95 x 360 days x .0005555% =

713.11 which is 20% interest
from January 1, lg82,
through December 31,
1982.

$3,565.95 x 180 days x .0004444% =

285.24 which is 16% interest
from January 1, 1983,
through June 30, 1983.

$3,565.95 x 270 days x .0003055% =

294.13 which is 11% interest
from July 1, 1983,
through March 31, 1984.

Total interest due on second
quarter of 1980 back pay ••••• $1,935.47
Third Quarter of 1980 through March 31, 1984
$3,565.95 x 451 days x .0003333% = $536.02 which is 12% interest
on last day of September 1980 through December 31, 1981.
$3,565.95 x 360 days x .0005555% = $713.11 which is 20% interest
from January 1, 1982,
through December 31,
1982.
$3,565.95 x 180 days x .0004444% =

285.24 which is 16% interest
from January 1, 1983,
through June 30, 1983.

$3,565.95 x 270 days x· .0003055% =

294.13 which is 11% interest
from July 1, 1983,
through March 31, 1984.

Total interest due on third
quarter of 1980 back pay ••••• $1,828.50
Fourth Quarter of 1980 through March 31, 1984
$3,565.89 x 361 days x .0003333% = $429.05 which is 12% interest
on last day of December 1980 through December 31, 1981.

668

Fourth Quarter of 1980 through March 31( 1984 (Continued)
I

$3,565.89 x 360 days x .0005555% =

713.10 which is 20% interest
from January 1, 1982,
through December 31,
1982.

$3,565.89 x 180 days x .0004444% =

285~24

$3,565.89 x 270 days x .0003055% =

294.13 which is 11% interest
from July 1, 1983,
through March 31, 1984.

which is 16% interest
from January 1, 1983,
through June 30, 1983.

Total interest due on fourth
quarter of 1980 back pay ••••• $1,721.52
First Quarter of 1981 through March 31, 1984
$3,510.22 x 271 days x .0003333% = $317.05 which is 12% interest
on last day of March
1981 through December 31, 1981.
$3.510.22 x 360 days x .b005555% =

$3,510.22 x 180 days x .0004444%

701.97 which is 20% interest
from January 1, 1982,
through December 31,
1982.

= $280.78 which is 16% interest
from January 1, 1983,
through June 30, 1983.

$3,510.22 x 270 days x .0003055% =

289.54 which is 11% interest
from July 1, 1983,
through March 31, 1984.

Total interest due on first
quarter of 1981.back pay ••••..:$1,589.34
Second Quarter of 1981 through March 31, 1984
$2,897.22 x 181 days x .0003333% = $174.78 which is 12% interest
on last day of June 1981
through December 31, 1981.
$2,897.22 x 360 days x .0005555% =

669

579.38 which is 20% interest
from January 1, 1982,
through December 31,
1982.

Second Quarter of 1981 through March 31', 1984 (Continued)
$2,897.22 x 180 days x .0004444% = $231.75 which is 16% interest
•
from January 1, 1983,
through June 30, 1983.
$2,897.22 x 270 days x .0003055% =

238~97

which is 11% interest
from July 1, 1983,
through March 31, 1984.

Total interest due on second
quarter of 1981 back pay •••• $ 1,224.88
Second Quarter of 1982 through March 31, 1984
$724~35

x 91 days x .0005555% =

$ 36.61 which is 20% interest on
last day of June 1982
through December 31, 1982.

$724.35 x 180 days x .0004444% =

57.94 which is 16% interest
from January 1, 1983,
through June 30, 1983.

$724.35 x 270 days x .0003055% =

59.74 which is 11% interest
from July 1, 1983,
through March 31, 1984.

Total interest due on second
quarter of 1982 back pay •••• $

154.29

First Quarter of 1983 through March 31, 1984
$2,070.00 x 91 days x .0004444%

=$

$2,070.00 x 270 days x .0003055% =

Total interest due on first
quarter of 1983 back pay ••••. $

83.71 which is 16% interest on
last day of March 1983
through June 30, 1983.
170.74 which is 11% interest
from July 1, 1983,
through March 31, 1984.
254.45

Total interest due on all
back pay from July 12,
1979, through March 31,
1984 •••••••••••••••••••••••• $14,708.17

670

I

.

Total back pay prior to
interest calculation •••••••• $29,955.10
Total back pay, including
interest to March 31, 1984

$44,663.27
l

Reinstatement Obligation Continues To Exist
Toward the end of the second day of the back-pay hearings,
respondent's owner testified that he was still doing some reclamation work under a different corporate name inasmuch as Whitley
Development Corporation was dissolved as of March 31, 1983.
Respondent's owner may be under the impression that he may continue
to mine coal under a different corporate name and thereby extinguish his obligation to reinstate complainant to his former
position.
Respondent's owner is still obligated to reinstate
complainant to his former position as a dozer operator if respondent's owner continues to have an interest in another corporate entity which continues to mine coal in the circumstances
described by respondent's owner (BPTr. 136; Glenn Munsey v.
Smitty Baker Coal Co., Inc., 2 FMSHRC 3463 (1980)).
WHEREFORE, it is ordered:
: (A)
Pursuant to the Commission's remand of the back-pay
issues, respondent, or respondent's owners, within 30 days from
the date of this decision, shall provide complainant with the
following relief:
(1) Pay complainant back wages totaling $29,955.10
plus interest in the amount of $14,708.17, such interest
to be modified in accordance with the method for calculating interest as explained by the Commission in its
Bailey decision, sulra, if payment is made before or
after March 31, 198 •
(2) Provide the additional relief, including payment of attorney's fees, as set forth in my original
decision at 3 FMSHRC 763 to the ~xtent that such relief
has not already been awarded.
(B)
Respondent's motion to dismiss complainant's right to
back pay for the period from February 8, 1983, through March 31,
1983, is denied.

~a. gfZif#t

Richard c. Steffey~
Administrative Law Judge

Bil

Distribution:
William E. Hensley, Esq., Attorney for Elias Moses, P.
1263, Corbin, KY 40701 (Certified Mail).
t

David Patrick, P.s.c., 319 South Main S~reet, P.
Harrodsburg, KY 40330 (Certified Mail) :

672

o. Box

o. Box 9,

1
I
j
i I I I I I \Pjge If 1 I · I I I j j
4
I k.i.,P:::RSONS EMPLOYED BEFOREIAND AFTER ELIAS MOSES EXCEPT FOR OwNERIAND MEMBERS.OF IHIStPPjnd~
FAMILY I

i

I

/

/

J

1

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I

'1·

t. dklns! DlnnJ, r. hitedl4/!/8t t i ! atte~ 3ldaJs .o let rn to Pr~viJusljoJ

.l

I

dkinsj D*ni~l, !Jr , ~ired l/21182; laid o:tf 6/Ul8i
I
.
• t;sip,\Jameslhiied 3/i/80; ~aid off tl/~2/80; :worke 0 b th da and ig t shi~ts
•
derson, !Ottis hired 11)7/Sl;llaid off/6/12/82 i
rcherj J+fftey!Ke~t ~ired ~/3181j i4id!of 10/3fi81
~.Baird, IGary ~em\. hlred ll3/~l; laid offi6/ 2/82 ! .
Bali, ton*iejhifed 9/4/80; iai off ill~/8~ i
8. *all, c~ L~yn~ h red l/il6~82, lJid!off 3A27/i82
9. Bolton; D<in liired l/9/82j l~id1off 4l24A82! I
10. ~rown, JGregoiiy ~ir4d i/11/8i; joi~edJArmy 8/lS/8~
11. Bryant, F~anklin h~red 2)16i.8o; laid\off 3)i21J80; w.rked ,ay an, n~ghe shifts
12. ~unch, jGedrg~ wj h~red 8All/,79' 14id!off 1~12/i80/Wo~ked only daY, sliifc
l~. qampbell, jTom h;red 8A22Ji81; llft!af~er\3 qay~ beca~selofjba k jrojlett
14. qanada~ L~st~r qari hired 8A29/,81; laid!ofB 4/i3/&2
1
15. ~arr, Ga~ hired l~/lS/80; 4uiu 3jl4181 toto:i:k forjhi f th r- ·n-]aw
l~. ash, ~an~y ~us~el h~red 4Al2ii80
I I
11,. hambe~s, IGranv~ll h~red ld/2~/8]\; ui 1 /2]/8~ ( oo fa t d ive.)
18. Cheek, ;Curtis L~e tjired ~/9A82~ ldid .ofif 4 17/82 \
19. qhirin, iHonier :R. ,hi:i:ed :beforfj 5~12~79~ l~id 1off 4/i4/ 1
20. Cornett, ijarald hired:before 5~12A19; l~id loff 9Al5 ,79
21. tjox; Edmon Alonzo ~.ired l:ief~re l5/:li2/7,9; :.laild ~ff j8/~2/ .1 (Wo11ke: day lhi~t)
22. I!augherty,! David J~hn ;hired 19/112/81; :sti!ll :Working as Jhop lllE!Chanitj
23. ~augherty~ J~1mn~ Lee hired 7if41!81~ laid !offl 6/il2/i82 I
/
I .
.
2li. Davis, ;James •Ronald hired beifore ~/12/79; ~aid off 2/2 /80 ( ,orked lday, shift! only)I
25. D'avis, ;Ralph 'Hi~ed !3/S/80; ~.aid of'f G/9~80 i' G\Jorked n~ghti s*f~ only)!
26. I:1ouglas, Robert Jhilied 1before 5~12/179;:. quit '4/Zl/7i9 Jo Jake b~tter j,ob
27. nuncan,i Edwin hijre4 lq/3/i8l;J 1 id !off 4/il7/!82 j
28. Durham,i BobbYi h~red bE!fo:Ce ~/l /79,; quid 4/;5/80
29. Ellis, Ralph· ·hir!ed !2/!6/~0; ilaild off !2/2,5/~0 (Woz:ke n ghti s if on:ly)
30. ~llison, Don~ld iR. i~ed j5/~0/~2; Jst~ll Jwo~king as Compan~. e gineel'
31. Ellison, R;ichard R.1 h~red 3/ 6/!l,2; !lafd o:ff ,4/24/82 !
1
3Z. Elswick, James iward hired ff
l/8~; ~aid orlf J.:O/l0/82
33. ~oley. ,cl~de [H· i~ed lbefprei 5'11-21\79 ~I lalidlf~ 6/t2fi82
34!. Foley, Clyde i.Je 1frey h,ired brf~e i5/~2/7j9; aid o•ff l4/'l/+/
35i. ~ff, Wendelll hi;'re~ bdo~ 5Vl /79!; llaid: 0 ' */3l/sii
i
ilot
361. Griffith, iro1*1 ~rl,~ *re,~ l'o/ /791; ilaid) o~ a:s emplpyee, but still worksi Onl oc asion(Airplimei I
5

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,

391. Haw, JJ. Bj. hfl-red ~17 8~ 1 i off 4V24 82
I
~
4a. Kinkle,\ James1 A./ h e beifor 5 12V79; 1 i~ off 4 4/ 1
41). 1*ickabyJ, W'fl.11~~ C 1 iid /4 811; q t 1~24V81. to dr ve
c
42i. Hildson,I Bo)>by[ Lnm ir~d efore 5/,2/ 9;J q t e/l'fJ/8
43'. Hi-Idson,j Ga:zy jlir~d before 5/ 2/ 9; la d pff 4/ 4/82
44•. Jones, ~ydheyl hi~e~ 4/P,/8 ; or ed1 3 ayiJ a d asl re al ed to pr vious jo •
45'. Keith, ~oyd hirefi 8V.29~811; 1 id off 6 12V82I I
~6:. Kilby, pa~d hirf!d ~/4 81; w rk d ~ d ys ank q~it. to re urn t p ioF j b.i

~8;.1 King: Georg11- L1 h~re·r 1V91'2; la d p££ 4/~3f8g I

~9 • L~y,J Labsfpri hi~ed 5/~2/ 9; la~. d pf£/ 12ll/~9 I.

l

I

30;. Lawson,1 Bobby1 R.~hi edj 6/ /8~; ~ai~ off ~/2p/82
1
31~ L~vitt,iDo~ni~ h re~ 2(7/
l; qutt ~/l~/8~ -1. I
52~ McClurel G~ryjLe n hir~d /1 /80; lai~ off ~/11/8
33~. McClure:, Lli.ndl! J ne\ hired. 8/, 6/BO; J still\ workihg ~s , ff. ce cl rk or, secreta
34~ McClure~ Richardjhi~ed!be~or~ 5Vl2/79i asj fo~eman;j st~lllwo~kirg
35'. McKee, t'arionl hi['ed~befor~ 5Yl2Y,79!; l~idl off 12/20/80
?6~ Magee, yerhonlw. hi edlbefor~ 5Y,12/79; l~id!of~ 9(8/~9'
I
; I
17~ McNeil,; Kathy! L. hi ed\ before 5Vl2/79; q~it! 11/3/79 (Worked ail c~erk or s!!cretary ln office) I
;8. Meadors• Jlunes h, red 12/13/80; faid off 4/2~/82 /
I / I
I ,.
;g. Meadors; K~lly hirell 8{16(80; 18.idi off 6/20181!
I
. I I I
·
!
I
iO~ Meadors, Homer Sr hired before S/12/79; hasibeen sic~ fbr monfhs:
i I IL
il; Meadors;. Ora Lyle hlred ll/29/80: laid off 6/20/81 ~
: I 1 I I I
.
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IIII
II I
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673

III

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I I I i I I jPa~e ~ 0 ~
,
I
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2

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I Akoi I / l I ; FA.~ILY'
j

L EMPLOYEES B FORE AND AFtER,ELIASiMOSES!EXCEPT OWNER
62

or~,

kEMBERS OF HIS

Appendix A
j .'
(CONTINUED)'

IIIIIi I

R be~t b. hir~d ~/l~/Sp; ~uib 9~19~81! toi taker: ob cltse~ t~ h~s hom~ •.
1

I

n ld!E.lhi~edl 6/~7/~l;! la~d ~ffl4/3/82
or~, og~r !-1-l~n hirbd 6/6181; laidloft 8(29/81•
I
1
rr~s, Al~enihi~edl 4/25/Bl;!worked 2~1/~ daysjand qµit
: l
se6,
~l,IJr~, hired peforei 5/~2/79:1 sti11;workipg ~s tru. k ~river, and laborer;
66t
seF• enhy hired ~/23/80; ~aid off ~/24/80 (~orkedlday s~ift ohly)
i 1·
67~
68~
sec,
ightlWayneihiredi 8/29/Bl;I stilliworking at ~ipplel as[' laborer
!
se. , li!a.s hired 5/12/79; discharged 6~28n9!
sea, saac hired before: 5/12/79;! stilll working at var~ous j bs
I
ses, icky hired before; 5/12/79;1 discharged 6/6V811
I
111s,'! Earl E. hired 4/25/81; laid off 6/13/81 I
72
11!1.s, 1 Williilm R. ,: Jrl, hired 11/29/80; laid off 6/l~/81
73
lson,i Danny• Michael hired before! 5/12/79;; laid offi 4/r4/B2 .,
74~
lson,; Robert Ernest hired 2/7/811; quit: 12/19/81.
75L
76L N~wport•, Eldon hired 4/3/82;1 worked 11 dar,' I I I
77~ P trick:, Charles1 DaYid: hired! l/t)/81; ~till working as attomey
78. P trick!, RDger hired 4:/3/Sl;i la!i.d bffj 4/~/82 ! I I I
79~ P~trick:, W'illiam; Albert h~red 7Vl8i/811; lli.idi of~ 6r12vs21
80~ Payne, David hired 3/22/80; retired 6V28V801
I
I
811. Pennington·, James hired 12/20/80; ~ai~ o~f br ~ischarged 2V7 /~O ,
1
82 1• Perry, Leonidas Xerxes: hired1 before 51/12'/791; still w0rking1 as shop mechanic . :
83'. P~trey,; Gregory Wayne hired 10/4/80; iaikl. off ~/13/81 I
!'
i i
I
:
54;, Rains, Andy hired before 5/12/79; laid off 3/28/8~
j
I
!
85!. Rpse•, Benjamin hired 3/8/80;: laid pffj 2/~8/81 I ~
I ,
, . I I 1 · 1 ! '
86!. Sams,, Billy Ray hired '7./2~ /82; ~ischargep 3Y2t/82: (Represented hl.maelfl to; be! an engineer)
87!. S!ergent:, Dellinar: hi;redi before 5!/12'/79; l:aid! off 3/27'/82,
1
881. S~rgent:, Jii.DiDLY M. hire~ biefore S/12/79; ~aid off :12/;Jl/81
89~ Sergent!, ICermit Dalb hj:Lre~ b~fo!re 5/1!2./79; ~uit 7'/21'/79i
90~ S~ith, ~illiain Morr~s ~ir~d ~/10/82; ~ai~ off 7/3'/82:
1
911. S~ephens, ~rty Al'* }#.rep 1Vl7r· 811; *idJ of~ 6(12f82!
i
Sfephens, ;it. ~· ~ired :J_l/~9/~0; qu;Lt ~/l~/8;1
!!
93,. Strunk,! Flf>Ydi Jrl. hilrel:i ~2/F.l; qulit~·121e11131 ,
·'
94.
f~idge,i Ch~.r~s, Jr!. reii 6Vl4rs ; 1 idl of!f ll/2 11s1
!!.·
95. S lfridge, Dafle ?· irkd 10/~l/~O; q t /7~s1!
.
,,
1
96. s lf~id;ge, n;vidJ h e 11 29 SOI; l~i of 5V2/~ll
I
I
97. S lf:rid'ge, Gary );ii d /1 /8 ;
1
o f
.
rlectrici )!.J
1
98. S lfiridge, Joel ,
h re 8 161 80; 1 i of 5 23/811
99.
0/ 0/ 9 .(Ti ple o erator
d .
c~ttl, ¥.lly Rj. h!ire 7 11vs1!; 1 i~of 5~22l/8211
I
'
:
I
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~01.
ckl!tti, c,bes~e~ hi!re 8/15/~l ;I' l~d ff 4/ 9/~2 ,
L02,.
ylbr ,I Stianley ;A. hi d 11V791; 1 i of 6V5/'82
L03!.
ackerl, nlallas hi+d /21/SP.; ilai o f /31/ao!
.
~041. 'q:lacke~. ~oienn~s µr. h e be~ore 5 12V79; l~idi oft o[ quit:
I
1
~o5I.
ackerJ,
ti!l.l
/11/811;
olff /ljl/Sil I
·.06!.
ackeri, ohnny !Rayj h}e 1/,10/Bl ;~ltd f~- 1/9/82
1
.07!.
w~, Rlichkr~ hire~ 2/ 5/ l; l:~d ff 3/ 7/~2 !
1
.osi.
aD111el1, A!rnold hi~d /l~/7'9; t i 1 or ing a8 true driwr nl 1 oTr .
.09'.
no;verj, DOnald hi~d 10/!3/8!1; ail:! o!f f ~/2~/82 I
I
I
"10'. Vanover:, rli.gar hire~ . 23V8o/; 1. idj o~' lb/3'1/81 J
!
I :
.ui. V,anoven, Rick.y hlred 51/9/~l ;I la!Ld pff 6/~0/81 !
1
I ! ;
'
.12~. Walker .. Ho~er1 D.i hi;'redl ll!/22:180'; llai ofif 6!/6/81 ;: called back! S/!15/81 ;; laid off 4/24/82
~u W:alker,j Ed~ard hired b~fore p/llJ./7'); ;taid off 6/27/81 (Worked; day afid µight shifts)
. 141. Walker ,1 Ra:.:ymond hired befprel 5/jl2/'79 ;I laid off 3/28/81 ; i
I
! !
151• W'alker,i Tony Gene h'1red l'/31:1s11; laid! oH 5/~0/81.
; : : 1 1 ;
; :
'.16'. Weaver,: Charles hired befbre• 5/12/;79;: laid otf 4/29/80 (Day shift only.) '
1 j j i
17'. West;, Dennis hired before; 5/ 12/79 ;' lali.d off'. 1/20/80
' ;
18. W'est" Puul• D.: hired. before 5/12'/79; 11'lid: off 5/23/81
· : ! i ·
.19. W'illiford,: Lester hired 3/8/80;! laid off' 8/10/80 (Worked day and. night shift)
20. W'ilson, Donald hired afteT 5/12'/79' or 7/14/79: laid off 6/27/81
,21'. ~oung, Lloyd, Jr. hired 4/3/82; la~d off 4/17/82

i~~

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674

I

Appendix B
EMPLOYEES HIRED BEFORE 5/12/79 OR IN 1979
Em:elox:ee
1. Chinn, Homer R.
2. Cornett, Harold
3. Cox, Edmon Alonzo
4. Davis, James Ronald
5. Douglas, Robert
6. Durham, Bobby
7. Foley, ClydeH.
8. Foley, Clyde Jeffrey
9. Goff, Wendell
10. Hinkle, James A.
11. Hudson, Bobby Lynn
12. Hudson, Gary
13. McClure, Richard
14. McKee, Marion
15. Magee, Vernon W.
16. Meadors, Homer S.
17. Moses, Arvil, Jr.
18. Moses, Isaac
19. Moses, Ricky
20. Nelson, Danny Michael
21. Perry, Leonidas Xerxes
22. Rains, Andy
23. Sergent, Dellmar
24. Sergent, Jimmy M.
25. Sergent, Kermit Dale
26. Thacker, Dennis, Jr.
27. Trammel, Arnold
28. Walker, Edward
29. Walker, Raymond
30. Weaver, Charles
31. West, Dennis
32. West, Paul D.
33. Lay, Lansford
34. Hamlin, Arnold
35. Wilson, Donald
36. Bunch, George W.
37. Taylor, Stanley A.
38. Sutton, George Alex

Hired

Laid Off

Before 5/12/79
Before
"
Before
"
Before
"
Before
"
Before
"II
Before
Before
"
Before
"
Before
"
Before
"
Before
"
Before
"
Before
"
Before
"
Before
"
Before
"
II
Before
Before
"
Before
"
Before
"
Before
"II
Before
Before
"
Before
"
II
Before
II
Before
II
Before
II
Before
Before
"
Before
"
II
Before
5/12/79
5/26/79
7/14/79
8/11/79
9/1/79
9/22/79

4/4/81
9/15/79
8/22/81
2/26/80
Quit 4/21/79
Quit 4/5/80
6/12/82
4/24/82
12/31/81
4/4/81
Quit 1/19/80
4/24/82
Still Working
12/20/80
9/8/79
Sick for months
Still Working
Still Working
6/6/81
4/24/82
Still Working
3/28/81
3/27/82
12/31/81
Quit 7/21/79
Quit 2/27/82
Still Working
6/27/81
3/28/81
4/29/80
1/20/80
5/23/81
12/1/79
2/6/82
6/27/81
1/12/80
6/5/82
10/20/79

'675

Appendix C
EMPLOYEES HIRED IN 1980
Employee
1. Bryant, Franklin
2. Ellis, Ralph
3. Moses, Benny
4. Vanover, Edgar
5. Alsip, James
6. Davis, Ralph
7. Rose, Benjamin
8. Williford, Lester
9. Meadors, Robert E.
10. Payne, David
11. Lawson, Bobby R.
12. Sulfridge, Charles, Jr.
13. Thacker, Dallas
14. Meadors, Kelly
15. Sulfridge, Joel Lynn
16. Ball, Lonnie
17. McClure, Gary Leon
18. Petrey, Gregory Wayne
19. Hamlin, Eugene
20. Sulfric;Ige, Dale W.
21. Carr, Gary
22. Walker, Homer D.
23. Meadors, Ora Lyle
24. Mullis, William R., Jr.
25. Stephens, R. L.
26. Sulfridge, David
27. Meadors, James
28. Pennington, James

Hired

Laid Off

2/16/80
2/16/80
2/23/80
2/23/80
3/8/80
3/8/80
3/8/80
3/8/80
3/15/80
3/22/80
6/7/80
6/14/80
6/21/80
8/16/80
8/16/80
9/6/80
9/13/80
10/4/80
10/11/80
10/11/80
11/15/80
11/22/80
11/29/80
11/29/80
11/29/80
11/29/80
12/13/80
12/20/80

5/16/80
2/25/80
4/24/80
10/31/81
11/22/80
6/9/80
2/28/81
8/30/80
Quit 9/19/81
Retired 6/28/80
2/20/82
11/21/81
9/3/80
6/20/81
5/23/81
1/17/81
4/17/82
6/13/81
11/22/80
Quit 2/7/81
Quit 3/14/81
4/24/82
6/20/81
6/13/81
3/14/81
5/2/81
4/24/82
2/7/80

67G

Appendix D

EMPLOYEES HIRED IN 1981
Employees

Hired

Laid Off up to 12-1-82

1. Archer, Jeffrey Kent
2. Baird, Gary Dean
3. Elswick, James Edward
4. Thacker, Johnny Ray
5. Stephens, Marty Alan
6. Walker, Tony Gene
7. Lovitt, Donnie
8. Nelson, Robert E.
9. Towe, Richard
10. Sulfridge, Gary
11. Patrick, Roger
12. Kilby, David
13. King, Francis Asbury
14. Thacker, Estill
15. Morris, Allen
16. Mullis, Earl E.
17. Strunk, Floyd Jr.
18. Vanover, Ricky
19. Moore, Roger Allen
20. Moore, Donald E.
21. Daugherty, Jimmy Lee
22. Huckaby, William Carl
23. Brown, Gregory
24. Tackett, Billy R.
25. Patrick, William Albert
26. Tackett, Chester
27. Campbell, Tom
28. Canada, Lester Carl
29. Keith, Boyd
30. Moses, Dwight Wayne
31. Daugherty, David John
32. Duncan, Edwin
33. Vanover, Donald
34. Chambers, Granville
35. Anderson, Ottis

1/3/81
1/3/81
1/3/81
1/10/81
1/17/81
1/31/81
2/7/81
2/7/81
2/25/81
3/14/81
4/3/81
4/4/81
4/11/81
4/11/81
4/25/81
4/25/81
5/2/81
5/9/81
6/6/81
6/27/81
7/4/81
7/4/81
7/11/81
7/11/81
7/18/81
8/15/81
8/22/81
8/29/81
8/29/81
8/29/81
9/12/81
10/3/81
10/3/81
10/24/81
11/7/81

10/3/81
6/12/82
10/30/82
1/9/82
6/12/82
5/30/81
Quit 3/14/81
Quit 12/19/81
3/27/82
7/18/81
4/3/82
Quit after 2 days
(Foreman)
Quit 4/3/82
7/11/81
Quit after 2-1/2 days
6/13/81
Quit 12/31/81
6/20/81
8/29/81
4/3/82
6/12/82
10/24/81
Quit 8/15/81
5/22/82
6/12/82
4/19/82
Quit after 3 days
4/3/82
laborer)
6/12/82
Still working at tipple as I
Still working as shop mechani1
4/17/82
4/24/82
Quit 11/21/81
6/12/81

Appendix E
EMPLOYEES HIRED IN 1982
Employees

Hired

Laid Off

1. Bolton, Don

1/9/82
1/9/82
1/9/82
1/16/82
3/6/82
3/27 /82
4/3/82
4/3/82
4/3/82
4/3/82
4/10/82
4/17/82

4/24/82
4/17/82
4/3/82 .·
3/27/82
4/24/82
6/12/82
Quit after 3 days
Quit after 3 days
Quit after 1 day
4/17/82
7/3/82
4/24/82

2. Cheek, Curtis Lee
3. King, George L.
4. Ball, Rick Layne
5. Ellison, Richard R.
6. Adkins, Daniel, Jr.
7. Adkins, Danny, Sr •. ·
8. Jones, Sydney
9. Newport, Eldon
10. Young, Lloyd, Jr.
11. Smith, William Morris
12. Hawn, J. B.

678

Appendix F
EMPLOYEES STILL WORKING FOR WHITLEY DEVELOPMENT CORPORATION AS OF
DECEMBER 1, 1982
Employee

·Hired

1. McClure, Richard
2. Moses, Arvil, Jr.
3. Moses, Isaac

Before 5/12/79
Before 5/12/79
Before 5/12/79

4. Perry, Leonidas Xerxes
5. Trammel, Arnold
6. Moses, Dwight Wayne

Before 5/ 12/79
Before 5/12/79
8/29/81

7. Daugherty, David John
8. Meadors, Homer S.

9/1·2/81
Before 5/12/79

679

Type of Work
Forema,n and Loader operator
Truck driver and laborer
Variou~ jobs and dozer
operator
Shop mechanic
Truck driver and laborer
Tipple laborer and drill
operator
Shop mechanic
Has been ill for months

Appendix G
Page 1 of 2
OILER
Boyd Keith

8-24-81

Laid off 6-12-82

Danny Adkins, J.r.

3-25-82

Laid off 6-12-82

3-03-82

Laid off 4-24-82

Clyde H. Foley

3-09-74

Laid off 6-12-82

Isaac Moses

3-30-74

Still working as of 12/1/82

Gary Baird

12-·29-.SO

Laid off 6-12-82

Jinnny Daugherty

7-01-81

Laid off 6-12-82

Homer Walker

8-09-81

Laid off 4-24-82

Chester Tackett

8-13-81

Laid off 4-19-82

Roger Patrick

8-31-81

Laid off 6-12-82

Edwin Duncan

9-28-81

Laid off 4-17-82

Ottis Anderson

11-04-81

Laid off 6-12-82

Don L. C. Bolton

1-04-82

Laid off 4-24-82

Curtis Cheek

1-04-82

Laid off 4-17-82

George King

1-09-82

Laid off 4-03-82

Gary Hudson

Before 5-12-79

Laid off 4-24-82

LABORER
Richard Ellison

DOZER

TRUCK
Arvil Moses

3-31-78

Still working as of 12/1/82

De+lmar Sergent

10-23-78

Laid off 3-27-82

Arnold Trammel

4-20-79

Still working as of 12/1/82

James Meadors

12-11-80

Laid off 4-24-82

Gary McClure

6-01-81

Laid off 4-17-82

Donald Moore

6-24-81

Laid off 4-03-82

Lester Canada

8-24-81

Laid off 4-03-82

Donald Vanover

10-01-81

Laid off 4-24-82

Rick Ball

1-16-82

Laid off 3-27-82

Lloyd Young

3-31-82

Laid off 4-17-82

680

Appendix G
Page 2 of 2
LOADER
Richard McClure

7-02-75

Still working as of 12/1/82

Clyde Jeffrey Foley

5-21-79

Laid off 4-24-82

Danny Nelson

2-02-81

Laid off 4-24-82

Gary Hudson

11-23-81

Laid off 4-24-82

George King

1-04-82

Laid off 4-03-82

9-08-81

Still working as of 12/1/82

James Elswick

12-22-80

Laid off 10-30-82

Marty Stephens

1-14-81

Laid off

6-12-82

Albert Patrick

2-15-82

Laid off

6-12-82

Wayne Moses

3-22-82

Still working as of 12/1/82

Stanley Taylor

8-28-79

Laid off

6-12-82

Billy Tackett

7-06-81

Laid off

5-22-82

MECHANIC
David Daugherty

TIPPLE

DRILL

FOREMAN

681

Appendix H

Page 1 of 4
HIRED 1979

OCTOBER
6
Griffith, John Earle - laid off
but works on occasion/pilot.

Before 5-12-79

Chinn, Homer R.
4-4-81
Cornett, Harold
9-15-79
Cox, Edmon Alonzo
8-22-81
Davis, James Ronald
2-26-80
Douglas, Robert
quit 4-21-79
Durham, Bobby
quit 4-5-80
Foley, Clyde H.
6-12-82
Foley, Clyde Jeffrey 4-24-82
Goff, Wendell
12-31-81
Hinkle, James A.
4-4-81
Hudson, Bobby Lynn
quit 1-19-80
Hudson, Gary
4-24-82
McClure, Richard still working/foreman
McKee, Marion
12-20-80
Magee, Vernon W.
9-8-79
McNeil, Kathy L.
quit 11-3-79
Meadors, Homer S.
has been sick for months
Moses, Arvil, Jr.
still working/truck driver/laborer
Moses, Isaac
still working/various jobs
Moses, Ricky
6-6-81
Nelson, Danny Michael 4-24-82
Perry, Leonidas Xerxes still working/shop mechanic
Rains, Andy
3-28-81
Sergent, Dellmar
3-27-82
Sergent, Jimmy
12-31-81
Sergent, Kermit Dale quit 7-21-79
Thacker, Dennis Jr. 2-27-82.
Walker, Edward
6-27-81
Walker, Raymond
3-28-81
Weaver, Charles
4-29-80
West, Dennis
1-20-80
West, Paul D.
5-23-81
MAY

12

26

12-1-79

Lay, Lansford
Moses, Elias
Trammel, Arnold
Hamlin, Arnold

still working/truck driver/laborer

2-6-82

JULY

14

Wilson, Donald

AUGUST
Bunch, George W.
11
SEPTEMBER
Taylor, Stanley A.
1

22

Sutton, George Alex

6-27-81
1-12-80
6-5-82
10-20-79

68~2

Appendix H
Page 2 of 4 ·
HIRED 1980
FEBRUARY
16
Bryant, Franklin 3-27-80
Ellis, Ralph
2-25-80

DECEMBER
13
Meadors, James
20

23

Moses, Benny
Vanover, Edgar

4-24-80
10-31-81

MARCH

8

Alsip, James
11-22-80
Davis, Ralph
6-9-80
Rose, Benjamin
2-28-81
Williford, Lester 8-30-80

15

Meadors, Robert E.

22

Payne, David

quit 9-19-81

retired

APRIL
Cash, Landy Russell
12
JUNE
7 Lawson, Bobby R.

2-20-82

14

Sulfridge, Charles, Jr.

21

Thacker, Dallas

11-21-81

9-3-80

AUGUST
16
McClure, Linda Jane
still working/office
Meadors, Kelly 6-20-81
Sulfridge, Joel Lynn 5-23-81
SEPTEMBER
6 Ball, Lonnie
13

1-17-81

McClure, Gary Leon

4-17-82

OCTOBER
4
Petrey, Gregory Wayne
11

Hamlin, Eugene
Sulfridge, Dale W.

NOVEMBER
15
Carr, Gary

6-13-81

11-22-80
quit 2-7-81

quit 3-14-81

22

Walker, Homer D.

29

Meadors, Ora Lyle 6-20-81
Mullis, William R. 6-13-81
Stephens, R. L.
3-14-81
Sulfridge, David
5-2-81

4-24-82 .

683

4-24-82

Pennington, James

2-7-80

Appendix H
Page 3 of 4
HIRED 1981
JANUARY
3
Archer, Jeffrey Kent 10-3-81
Baird, Gary Dean 6-12-82
Elswick, James Edward 10-30-82
Patrick, Charles David still working
-attorney
Thacker,
Johnny
Ray
1-9-82
10
17

Stephens, Marty Alan 6-12-82

31

Walker, Tony Gene

5-30-81

FEBRUARY
7
Lovitt, Donnie
quit 3-14-81
Nelson, Robert Ernest quit 12-19-81
25

Towe, Richard 3-27-82

MARCH
14
Sulfridge, Gary
APRIL
3
Patrick, Roger

7-18-81
4-3-82

Kilby, David

11

King, Francis Asbury
Thacker, Estill

quit
7-11-81

25

Morris, Allen
Mullis, Earl E.

quit
6-13-81

MAY
2

Strunk, Floyd, Jr.

quit

9

Vanover, Ricky

6-20-81

quit

JUNE
6

22

Moore, Roger Allen
8-29-81
Moore, Donald E.
4-3-82

JULY
4

Daugherty, Jimmy Lee 6-12-82
Huckaby, William Carl quit 10-24-81

11

Brown, Gregory
Tackett, Billy R.

18

Patrick, William Albert 6-12-82

quit 8-15-81
5-22-82

Campbell, Tom

4-19-82

quit

' 29

Canada, Lester Carl 4-3-82
Keith, Boyd
6-12-82
Moses, Dwight Wayne still working
laborer
SEPTEMBER
12
Daugherty, David still working
shop mechanic
OCTOBER
4-17-82
3 nuncan, Edwin
Vanover, Donald 4-24-82
24

4

27

AUGUST
15
Tackett, Chester

Chambers, Granville

quit 11-21-81

NOVEMBER
7 Anderson, Ottis 6-12-82

Appendix H
Page 4 of 4
HIRED 1982
JANUARY
9
Bolton, Don
Cheek, Curtis Lee
King, George L.

4-24-82
4-17-82
4- 3-82

16

3-27-82

Ball, Rick Layne

MARCH
6
Ellison, Richard R. 4-24-82
27

Adkins, Daniel, Jr. 6-12-82

APRIL
3
Adkins, Danny, Sr.
Jones, Sydney
Newport, Eldon
Young, Lloyd, Jr.

quit 4-6-82
quit 4-6-82
quit 4-4-82
4-17-82

10

Smith, William Morris

17

Hawn, J. B.

7-3-82

4-24-82

685

Appendix I
Page 1 of 2
LAID·OFF - DISCHARGED
1981 (continued)

1979
April 21

Douglas, Robert

July

Sergent, Kermit Dale

21

Chinn, Homer R.
Hinkle, James A.
April 6 Kilby, David
April 28 Morris, Allen

Sept. 8 · Magee, Vernon W.
Sept. 15 Cornett, Harold
Oct.

20

Sutton, George Alex

Dec.

1

Lay, Lansford

April

4

May
May

2
23

May
June
1980
Jan.
Jan.
Jan.

12 Bunch, George W.
19 Hudson, Bobby Lynn
20 West, Dennis

Feb.
Feb.
Feb.

7 Pennington, James
25 Ellis, Ralph
26 Davis, James Ronald

June
June
June

March 27

Bryant, Franklin

April 5
April 24
April 29

Durham, Bobby
Moses, Benny
Weaver, Charles

Sulfridge, David
Sulfridge, Joel Lynn
West, Paul D.
30 Walker, Tony Gene
6 Moses, Ricky
Walker, Homer D. (called
back 8/15/81 and laid
off again 4/24/82).
13 Mullis, Earl E.
Mullis, William R., Jr.
Petrey, Gregory Wayne
Meadors,
Kelly
20
Meadors, Ora Lyle
Vanover, Ricky
27 Walker, Edward
Wilson, Donald

July
July

11

18

Thacker, Estill
Sulfridge, Gary

Aug.
Aug.
Aug.

15
22
29

Brown, Gregory
Cox, Edmon Alonzo
Moore, Roger Allen
Meadors, Robert E.

June
June

9 Davis, Ralph
28 Payne, David

Aug.

30

Williford, Lester

Sept. 19

Sept.

3

Thacker, Dallas

Nov.

22

Alsip, James
Hamlin, Eugene

Oct.
Oct.
Oct.

3 Archer, Jeffrey Kent
24 Huckaby, William Carl
31 Vanover, Edgar

Nov.

21

Dec.

20

McKee, Marion

Chambers, Granville
Sulfridge, Charles, Jr.

Dec.
Dec.

19
31

Nelson, Robert Ernest
Goff, Wendell
Sergent, Jimmy M.
Strunk, Floyd, Jr.

9

Thacker, Johnny Ray

1981
Jan.

17

Ball, Lonnie

Feb.
Feb.

7
28

Sulfridge, Dale W.
Rose, Benjamin

March 14
March 28

1982

Carr, Gary
Lovitt, Donnie
Stephens, R. L.
Rains, Andy
Walker, Raymond

Jan.

68tJ

Appendix I
Page 2 of 2
LAID ·OFF - DISCHARGED
1982 (continued)
Feb.
Feb.
Feb.

6

20
27

March 27

Hamlin, Arnold
Lawson, Bobby R.
Thacker, Dennis, Jr.
Ball, Rick Layne
Sergent, Dellmar
Towe, Richard

Canada, Lester Carl
King, Francis Asbury
King, George L.
Moore, Donald E.
Patrick, Roger
April 4 Newport, Eldon
April 6 Adkins, Danny, Sr.
Jones, Sydney
April 17 Cheek, Curtis Lee
Duncan, Edwin
McClure, Gary Leon
Young, Lloyd, Jr.
April 19 Tackett, Chester
April 24 Bolton, Don
Ellison, Richard R.
Foley, Clyde Jeffrey
Hawn, J. B.
Hudson, Gary
Meadors, James
Nelson, Danny Michael
Vanover, Donald
Walker, Homer D.

April

3

May

22

Tackett, Billy R.

June
June

5

12

Taylor, Stanley A.
Adkins, Daniel, Jr.
Anderson, Ottis
Baird, Gary Deari
Daugherty, Jimmy Lee
Foley, Clyde H.
Keith, Boyd
Patrick, William Albert
Stephens, Marty Alan

July

3

Smith, William Morris

Oct.

30

Elswick, James Edward

687

Appendix J
Page 1 of 4
HIRED 1979
Before 5-12-79
Chinn, Homer R.
Cornett, Harold
Cox, Edmon Alonzo
Davis, James Ronald
Douglas, Robert
Durham, Bobby
Foley, Clyde H.
Foley, Clyde Jeffrey
Goff, Wendell
Hinkle, James A.
Hudson, Bobby Lynn
Hudson, Gary
McClure, Richard
McKee, Marion
Magee, Vernon W.
Meadors, Homer S.
Moses, Arvil, Jr.
Moses, Isaac
Moses, Ricky
Nelson, Danny Michael
Perry, Leonidas Xerxes
Rains, Andy
Sergent, Dellma.r
Sergent, Jitmny
Sergent, Kermit Dale
Thacker, Dennis, Jr.
Walker, Edward
Walker, Raymond
Weaver, Charles
West, Dennis
West, Paul D.

6-12-82
4-24-82

4-24-82

4-24-82
3-27-82
2-27-82

MAY

12

Lay, Lansford
Tratmnel, Arnold

26

Hamlin, Arnold

2- 6-82

JULY

-v;-- Wilson, Donald
AUGUST
11
Bunch, George W.
SEPTEMBER
1
Taylor, Stanley A.
22

6- 5-82

Sutton, George Alex

688

Appendix J
Page 2 of 4
HIRED 1980
FEBRUARY
16
Bryant, Franklin
Ellis, Ralph
23

Moses, Benny
Vanover, Edgar

MARCH
8
Alsip, James
Davis, Ralph
Rose, Benjamin
Williford, Lester
15

Meadors, Robert E.

22

Payne, David

JUNE
Lawson, Bobby R.
7
14

Sulfridge, Charles, Jr.

21

Thacker, Dallas

2-20-82

AUGUST
16
Meadors, Kelly
Sulfridge, Joel Lynn
SEPTEMBER
6
Ball, Lonnie
13

McClure, Gary Leon

4-17-82

OCTOBER
4
Petrey, Gregory Wayne
11

Hamlin, Eugene
Sulfridge, Dale W.

NOVEMBER
15
Carr, Gary
22

Walker, Homer D.

29

Meadors, Ora Lyle
Mullis, William R.
Stephens, R. L.
Sulfridge, David

DECEMBER
13
Meadors, James
20

4-24-82

4-24-82

Pennington, James

ssn

Appendix J
Page 3 of 4
HIRED 1981
JANUARY
3
Archer, Jeffrey Kent
Baird, Gary Dean
Elswick, James Edward

I

6-12-82
10-30-82

'22

Campbell, Tom

29

Canada, Lester Carl
Keith, Boyd
Moses, Dwight Wayne

10

Thacker, Johnny Ray

1- 9-82

17

Stephens, Marty Alan

6-12-82

31

Walker, Tony Gene

Towe, Richard

OCTOBER
3
Duncan, Edwin
Vanover, Donald
24

4

Kilby, David

11

King, Francis Asbury
Thacker, Estill

25

Morris, Allen
Mullis, Earl E.

MAY
2

Strunk, Floyd, Jr.

9

Vanover, Ricky

4- 3-82

Roger Allen

Moore, Donald E.

4- 3-82

4

Daugherty, Jinnny Lee
Huckaby, William Carl

6-12-82

11

Brown, Gregory
Tackett, Billy R.

5-22-82

Patrick, William Albert

6-12-82

27
JULY

18

4-17-82
4-24-82

Chambers, Granville

NOVEMBER
7
Anderson, Ottis

JUNE

~6~ Moore,

4- 3-82
6-12-82

3-27-82

MARCH
14
Sulfridge, Gary
APRIL
3
Patrick, Roger

4-19-82

SEPTEMBER
12
Daugherty, David

FEBRUARY
7
Lovitt, Donnie
Nelson, Robert Ernest
25

AUGUST
15
Tackett, Chester

6DO

6-12-82

Appendix J
Page 4 of 4

HIRED 1982
JANUARY
9 Bolton,· Don
Cheek, Curtis Lee
King, George L.

4-24-82
4-17-82
4-3-82

16

Ball, Rick Layne

3-27-82

FEBRUARY
27
Sams, Billy Ray

3-27-82

MARCH

6

Ellison, Richard R. 4-24-82

27

Adkins, Daniel, Jr. 6-12-82

APRIL
3
Adkins, Danny, Sr.
Jones, Sydney
Newport, Eldon
Young, Lloyd, Jr. 4-17-82
10

Smith, William Morris 7-3-82

17

Hawn, J. B.

4-24-82

MAY

20

Ellison, Donald R.

691

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

i '319". 8"'I

1•l '"iti"'
~H1( ....~

CIVIL PENALTY PROCEEDING
Docket No. WEST 83-22-M
A.C. No. 05-03663-05501

v.
J Ramah Mine a/k/a Ramah Mill
RAMAH MINES COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U. S. Department of Labor, Denver, Colorado,
for Petitioner
(Respondent failed to appear)

Before:

Judge Carlson

A hearing on the merits in this civil penalty proceeding was
set for February 8, 1984 at 1:30 p.m. in the Conunission's hearing
room in Denver, Colorado. The hearing was duly convened as
scheduled, but no appearance was made on behalf of the respondent
operator. At 2:05 p.m. the Secretary was permitted to put on his
case through the person of Mr. Michael Lynham, a metal-nonmetal
mine inspector. Lynham's testimony indicated that the Ramah Mine and
Mill, at the time of his April 7, 1981 inspection, had no telephone
or radio as a means of emergency communication, as required by the
mandatory safety standard published at 30 C.F.R. § 55.18-13. He
further testified that the mine no longer operates. The Secretary
rested at 2:20 p.m., at which time counsel moved for the entry of
a default judgment. The motion was taken under advisement and the
hearing was adjourned.
By order issued on February 9, 1984, respondent's representative was notified that a decision affirming the citation and
assessing the $20.00 civil penalty proposed by the Secretary would
be entered by default unless respondent showed good cause for its
failure to appear. The time for response is now long past and
nothing has been filed.

692

ORDER
Accordingly, respondent is declared to be in default for
failure to appear; citation number 574164 is affirmed; and
respondent shall pay within 30 days of the date of this decision
a civil penalty of $20.00.

Judge

Distribution:
James H. Barkley, Esq., Office of the Solicitor,
U. s. Department of Labor, 1585'Federal Building,
1961 Stout Street, Denver, Colorado 80294 (Certified Mail)
Guy c. Curtis, Esq., Curtis & Curtis
Po Box 547, Imperial, Nebraska 89033 (Certified Mail)

/ot

693

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

EDDIE LEE SHARP,
Complainant

.

v.
:

MAR 141984

DISCRIMINATION COMPLAINT
Dock~t No: WEVA 82-399-D
MSHA:case No: CD 82-27

Stan~

Run Mine No. 6

MAGIC SEWELL COAL COMPANY,
Respondent
DECISION AWARDING BACK PAY, ETC.
Appearances:

Eddie Lee Sharp, Elkins, West Virginia,
Complainant:
John L. Henning, Esq., Elkins, West Virginia,
for Respondent:

Before:

Judge Moore

At the hearing in the above case respondent's safety
director, who was neither an officer of the company nor an
owner, testified that the company was out of business and
had no assets. Although offered the opportunity to submit a
financial statement subsequent to the hearing, the company
did not do so. Nor has it responded to Mr. Sharp's postdecision claim for back wages and other expenses. Therefore,
even though the judgement may turn out to be uncollectable,
I am nevertheless issuing this decision requiring the payment
of back pay and expenses. No reinstatement is possible
inasmuch as the company is out of business. If the company
maintains any records, it is ORDERED to purge those records
of derogatory material concerning the illegal discharge of
Mr. Sharp.
Mr. Sharp is not entitled to all of the back pay claimed
by him. He is entitled to back pay from the date he was
discharged, August 6, 1982 to the date the company went out
of business on January 7", 1983. This is a total of 22 weeks
and one day. During the first 2 weeks Mr. Sharp would have
received a salary of $525 for each week. During the remaining
twenty weeks Mr. Sharp received $168 a week in unemployment
benefits· which, subtracted from the sum of $525 leaves $357.
$357 for twenty weeks is $7,140 and thi~, added to the
$1,050 Mr. Sharp would have received during the first 2
weeks amounts to $8,190 in back wages. Adding payment for
August 6 (at $105 per day) brings this to $8,295. Mr. Sharp
estimates that he drove 150 miles in connection with the
preparation of this case and at the standard rate allowed by
the United States government of 20.5 cents a mile the travel
expenses would be $30.75. The total judgement is for $8,325.75
plus interest.

694

The interest will be calculated i~ accordance with the
formula set forth in the Commission's decision Secretary of
Labor on behalf of Milton Bailey vs·. Arkansa·s Carbon
Comeany, 5 FMSHRC 2042, 2051-2053 (December 12, 1983).
Copies of the 3 cited pages from the decision are attached
hereto and made a part hereof • .!_/. I do not personally
understand the calculations but I am sure thc.t if there are
assets in this case, that MSHA will assist Mr. Sharp in
obtaining enforcement of the order. The services of an
accountant can be secured and he should be able to calculate
the proper interest with the aid of a Hewlett-Packard computer,
an abacus, and if necessary a ouija board. In any event, the
interest can not be computed until the date of payment is
known.
It is hereby ORDERED that respondent pay to Mr. Eddie
Lee Sharp, within 30 days, the sums mentioned above with
interest at the appropriate rate continuing until the day of
payment.

Charles c. Moore, Jr.
Administrative Law Judge
Distribution:
Mr. Eddie Lee Sharp, Aero Trailer·Park, Rt. l,.Box 274-36,
Elkins, W VA 26241 (Certified Mail)
John L. Henning, Esq., 320 Randolph Avenue, P.O. Box 5,
Elkins, W VA 26241 (Certified Mail)

1

In my opinion the Commission did not use the percent sign
correctly in the Arkansas-Carbona case. I have circled the
percent signs that I think should be eliminated. In attempting
to duplicate the results set forth in footnote 15 of that
opinion, I found that the percent signs caused my calculations
to be off by 2 decimal places. For example, if the annual
percentage rate is 16% and using a 360·day year that the
Commission prescribed, the daily percentage rate is .04444%~
the figure used in multiplication,however, to obtain that
percentage, is .0004444.
Attachments

/db

695

The relevant adjusted prime rates, which we adopt as .the Commission's
remedial interest rates, are:
January 1, 1978 to December 31, 1979 ••• 6% per year (.000166~per day)
January 1, 1980 to December 31, 1981. ••:12% per year ( .00033331per day)
January 1, 1982 to December 31, 1982 ••• 20% per year (.000555 • per day)
January 1, 1983 to June 30, 1983 ••••••• 16% per year (.0004444 per day)
July 1, 1983 to December 31, 1983 ••••••,11~~ per year (. 000305~ per day)
January 1, 1984 to June 30, 1984 ••••••• 11% per year (.000305~per day)
Because the IRS rates of interest are annou~ced as annual rates, it is
necessary, as explained below, to convert t~em to daily rates to calculate interest on periods of less than one year. 13/
I

-

There must also be a uniform method of computing the interest on
back pay awards under the Mine Act. We have considered a number of
possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's
general back pay methodology is sound and has met with judicial approval.
The labor bar is familiar with this system. We conclude that rather
than expending administrative resources in attempting to devise a new
system, we will best, and most efficiently, effectuate the remedial
goals of section 105(c) of the Hine Act by adopting the major features
of the NLRB computational system. We are satisfied that this system
will do justice to the miner, avoid unnecessary penalization of the
operator, and not prove unduly burdensome for our judges and bar to
apply.
We therefore announce the following general rules for the computation of interest on back pay.
Back pay and interest shall be computed by the "quarterly" method.
See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289
(1950), approved NLRB v. Seven-Up BottlinR Co., 344 U.S. 344 (1953). J!!.I

13/ Prior to the passage of the Tax Equity and Fiscal Resoonsibility
Act of 1982, the IRS announced the adjusted prime rate in
October
of the appropriate year to take effect the following February. For ease
of administration under the Mine Act, however, we have bounded certain
interest periods at December 31 and January 1 rather than at January ~l
and February 1. (The NLRB's General Counsel has followed the same
simplifying approach. NLRB Memo·randum GC 83_:17, August 8, 1983.)
14/ Back pay is the amount equal to the gross pay the miner would have
earned from the operator but for the discrimination, less his actual
interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC gs2, 994-95 (June
1982). The first figure, the gross pay the miner would have earned, i.$ •
termed "gross back pay." The third figure, the difference resul tin·g ~rcr.:
subtraction of actual interim earning from gross back pay, is "net back
pay"--the amount actually owing the discriminatee. Interest is awarded
on net back pay only.
In a discrimination case where, as here, there has been an illegal
dischar~e, the back pay period normally extends from the date of the
discri~ination to the date a bona fide of fer of reinstatement is made.
(As we conclude below, the period may also be tolled when the discrirninatee waives the right to reinstatement.)

696

Under this method (referred to as the "Woolworth formula," after the
NLRB's decision in the case of the same na~e, supra), computations are
made on a
basis corresponding to the four uarters of the
ca endar year. Separate computations o
ac pay are ma e for~ of
the calendar quarters involved in the back pay period. Thus, in each
quarter, the gross back pay, the actual interim earnings, if any, and
the net back pay are determined. See n. 14.
Interest on the net back pay of each quarte~' is assessed at the
adjusted prime interest rate or rates in effect, .:as explained below.
Like the NLRB, we will assess only simple intere~t in order to avoid
the additional complexity of compounding interest. Interest on the
amount of net back pay due and owing for each quarter involved in the
back pay period accrues beginning with the-Ia'st day of that quarter
and continuing until the date of payment. See Florida Steel Corp., 231
~LRB at 652.
In calculating the amount of interest on any given quarter's
net back pay, the adjusted prime interest rates may vary between the last
day of the quarter and the date of payment. If so, the respective rates
in effect for any quarter or combination of quarters must be applied for
:he period in which they were operative. The interest amounts thus accrued
for each quarter's net back pay are then summed to yield the total interest
award.
For administrative convenience, we will compute interest on the basis
af a 360-day year, 90-day quarter, and 30-day month. Using these simplified
values, the amount of interest to be assessed on each quarter's net back pay
is calculated according to the following formula:
Amount of interest "' The quarter's net back pay x
number of accrued days of interest (from the last
day of that quarter to the date of payment) x daily
adjusted prime rate interest factor.
The "daily adjusted prime rate interest factor" is derived by dividing
the annual adjusted prime rate in effect by 360 days. For example, the
daily interest factor for the present adjusted prime rate of 11% is

.000305~(.ll/360).

The daily interest factors are shown in the list of
adjusted prime rates above. A computational example is provided in the
accompanyin.g note •. 1:2./
15/

The mechanics of the quarterly computation system may be illustrated

bY the following hypothetical example, in which:a miner is discriminatorily
discharged on January 1, 1983, and offered reinstatement on September 30,
1983. Payment of back pay and interest is tendered on October 15, 1983.
After subtraction of the relevant interim earnings, the net back pay of
each quarter involved in the back pay period is as follows:
First quarter (beginning January 1, 1983) $1,DOO
Second quarter (beginning April 1, 1983)
§1,000
Third quarter (beginning July 1, 1983)
$1,000
Total net back pay
$3,000
The adjusted prime interest rates in effect in 1983 are:
16% per year (.000444~per day) from January 1, 1983, to
June 30, 1983;
·
11% per year (.000305~£'\per day) from July 1, 1983, to
December 31, 1983.\;/
The interest award on the net back pay of each of these quarters is as follows:
(1) First Quarter:
(a) At 16% interest until end of second quarter of 1983:
$1,000 net back pay x 91 accrued days of interest
(last day of first quarter plus the entire second
quarter) x .0004444 = $40.44
Plus,
(b) At 11% interest for entire third quarter throu~h the
date of pavment:
$1,000 net back pay x 105 accrued days of interest (the
third quarter plus 15 days) x .0003055 = $32.07
(c) Total interest award on first quarter:
$40.44 + $32.07 = $72.51
(2) Second Quarter
(a) At 16% interest for the last day of the second quarter
$1,000 x 1 accrued day of interest x .0004444 = $.44
Plus,
(b) At 11% interest for the entire third quarter through dc~r
of payment:
$1,000 x 105 accrued days of interest x .0003055 = $32.07
(c) Total = $.44 + $32.07 = $32.51
(3) Third Quarter:
At 11% interest for the last day of the third quarter
through date of paym.ent:
$1,000 x 16 accrued days of interest x .0003055 = $4.88 total
(4) Total Interest Award:
$72.51 + 32.51 + 4.88 = $109.90
This amount is added to trre total amount of back pay ($3,000), for a total
back pay award of $3,109.90.

698

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

FALLS CHURCH, VIRGINIA

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

v.

.
.
.
.

22041

CIVIL PENALTY PROCEEDING
Dock~t No.· SE 83-44
A.C. ~o. 01-00340-03536

Gorgas America No. 7 Mine
I

ALABAMA BY-PRODUCTS
Respondent

.
..

DECISION
DENYING MOTION TO
WITHDRAW PLEADINGS BUT
APPROVING SETTLEMENT
Before:

Judge Fauver

The parties have moved to withdraw their pleadings on the
ground that Respondent has tendered payment of the full civil_,--penalty petitioned by the Secretary.
Sufficient grounds have not been shown for a withdrawal of
the pleadings. Accordingly, the motion to withdraw is DENIED.
The parties' motion is, in effect, and will be considered as
a motion to approve settlement by payment of the civil penalty
petitioned by the secretary.
'
This case involves a single charge of a violation under
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 801, et ~ Respondent is cited for a violation of 30 CFR
§ 75.400 because of loose coal and. coal dust accumulations in
the No. 3 miner section. The Secretary's Narrative Findings
for a Special Assessment state that the accumulations extended
about 180 feet in the heading entry and.in the Nos. 1 and 2
left entries, that they were 4 to 10 inphes deep in the entries
and connecting crosscuts, that they.constituted~- serious
violation because of a risk of fire·-or explosion, and that
the violation was due to negligence because the condition was
readily observable and should have been detected by the mine
examiner, reported and cleaned up. Respondent demonstrated
a good faith effort to achieve rapid abatement of the cited
condition. In the 24-month period preceding the date of the
charge Respondent had a total of 316 charges of violations in
670 inspection days.

699

I find that the amount of penalty proposed, $750, is
consistent with the statutory criteria for c_ivil penalties
and is supported by the record. Accordingly, the
settlement will be approved.
ORDER
WHEREUPON IT IS ORDERED that Respondent shall pay a c·ivil
penalty of $750 within 30 days of the Decision, and upon such
payment this proceeding is DISMISSED.

r);_f/.:._ -7"-AA-tv~
William Fauver
Administrative Law Judge
Distribution:
George Palmer, Esq. , ()ff ice- 'of· the Solicitor, u. s. Department
of -Labor, 1929 South Ninth Avenue, Birmingham, AL 35205
(Certified Mail)
J. F:re~~- :Mbnl'.iff ,-· E.sq. -~ · .Aiai:>ama .. By-Products corporation, P. o.
Box 10246, Birmingham, AL 35202 (Certified Mail)

/kg

700

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW: JUDGES
2 SKYLINE, loth FLOOR
5203 LEESBURG PIKE 1
FALLS CHURCH, VIRGINIA 22041

MAR i 91984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIi PENALTY PROCEEDING
Docket No. KENT 84-24
A.C. No. 15-11065-03518

v.
No. 10 Mine
SHAMROCK COAL COMPANY, INC.,
Respondent
DECISION
Appearances:

Carole M. Fernandez, Esq., Office of the
Solicitor, U.S. Department of Labor,
Nashville, Tennessee, for Petitioner;
Neville Smith, Esq., Manchester, Kentucky,
for Respondent.

Before:

Judge Melick

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of
the F~deral Mine Safety and Health Act of 1977, 30 u.s.c. § 801,
et seq., the "Act" for one violation of the regulatory standard
at 3Crc.F.R. § 75.302(a). The general issue before me is
whether Shamrock Coal Company, Inc. (Shamrock) has violated the
cited regulation as alleged and if so what is the appropriate
penalty to be assessed.
The one citation at bar, No. 2193845, alleges inadequate
ventilation in the numbers 1, 2, and 3 working places on the
004 section of Shamrock's No. 10 Mine.· In particular, it
alleges as follows:
Line brattice were not installed adequately to
provide perceptible air movement to the faces of
such places. The brattices were installed but
they ended forty to seventy feet outby the faces
and did not extend out into the last open crosscut
to deflect any air into t~e places.

701

I

The cited standard reads as followsc
Properly installed and adequately maintained
line brattice or other approved devices shall be
continuously used from the last open crosscut of
an entry or room of each working section to provide
adequate ventilation to the working: faces for the
miners, and to remove flammable, explosive, and
noxious gasses, dust, and explosiveifurnes, unless
the Secretary or his authorized representative
permits an exception to this requirement, where
such exception will not pose a hazard to the
miners. When damaged by falls or otherwise, such
line brattice or other devices shall be repaired
immediately.
Shamrock appears to argue that the so-called Nos. 1, 2 and
3 "working places" were not "working faces" within the meaning
of the regulations and therefore there was no violation.
"Working face" is defined in the regulations as "any place in
a coal mine in which work of extracting coal from its natural
deposit in the earth is performed during the mining cycle."
30 C.F.R. § 75.2(g) (1).
The mining cycle at Shamrock's No. 10 Mine includes the
sequential preparation and extraction of coal in six entrie.s
numbered 1-6. The actual extraction and loading is performed
with a continuous miner. The newly mined area is then
immediately bolted and other work such as cleaning up, erecting
brattice, testing for methane and taking site lines may then
take place before the cycle is repeated in each of the six
entries. The continuous miner usually performs its phase of
the cycle in 20 to 30 minutes and a complete cycle in all
six entries will usually take between 2 and 4 hours.
Within this framework it is apparent that although the
continuous miner was not operating in working places Nos. 1-3
and no other work was then being performed in any of those
places when the citation was issued those places were nevertheless places in which work of extracting coal was performed
during the mining cycle. Those places were accordingly
"working faces."
Shamrock next appears to argue that even if the cited
areas were indeed "working faces" there was sufficient line
brattice in place at the Nos. 1, 2 and 3 places to provide
adequate ventilation to remove "flammable, explosive or noxious
gasses, dust or explosive fumes." The credible evidence does

702 .

I.

not, however, support the argument. MSH2\ Inspector James Brashear
testified without contradiction that there was no perceptible
movement of air when he cited the working places. While he
acknowledged there had not been a history of methane at the
subject mine and that there was generally "good air" in the
working sections, it is apparent that th~re was then insufficient ventilation to have removed coal dµst or other gases and
fumes from the face areas. It appears to be the intent of the
standard to provide continuing ventilatibn of lingering coal
dust, methane and other flammable and/or· noxious gases in areas
in which miners may continue to be working throughout the mining
cycle. Accordingly, I find that the violation is proven as
charged.
I accept the testimony of MSHA Inspector Brashear that the
hazard in this particular case was minimal in that there has
been no history of dangerous methane levels at this mine, that
there was minimal dust at the faces, and that there is customarily "good air" in the cited section. I note that while the
operator has been previously cited for the same violation the
citations have all been contested for the purpose of having the
issue presented for determination by an administrative law judge.
The citation at bar is apparently the first to reach hearing.
Under the circumstances, I find low negligence. The operator is
of medium size and has a moderate history of violations.
Accordingly, I find that a penalty of $50 is appropriate.
ORDER
Shamrock Coal Company, Ihc., is ordered to pay a civil
penalty of $50 within~\ days·~ the date ~·.,this decision.

}\ ·, ~\J\ "''-p.,_~--

Gar ·Melick \
Ass,stant Chief .Administrative Law Judge

~.
Carole M. Fernandez, Esq., Office ~J the Solicitor, U.S.
Distribution:

)

Department of Labor, 280 U.S. Courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
.J

Neville Smith, Esq., P.O. Box 447, Manchester, KY 40962
(Certified Mail)
/fb

703

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

Mi~R 20 1984

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 82-191-M
A.C. No. 04-04521-05002 F

v.
Denson Mine
KENNETH DENSON,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
u. s. Department of Labor, San Francisco, California,
for Petitioner;
(Respondent failed to appear) .

Before:

Judge Vail

STATEMENT OF THE CASE
This civil penalty proceeding was filed by the Secretary of
Labor (Secretary) against Kenneth Denson (Denson) 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 two
alleged violations of certain mandatory safety standards. Pursuant to an Order to Show Cause dated December 2, 1982, Denson
sent a letter dated December 19, 1982, which letter has been
accepted as his answer to the Secretary's petition. In this
answer, Denson stated that he thought the proposed penalties
were considerabl~ and that payment would cause him financial
distress.
Notice of Hearing was mailed to the parties on March 3, 1983
setting the hearing for July 7, 1983. The Secretary filed a
motion requesting that the hearing be continued to a later date.
An order rescheduling the hearing was issued on May 23, 1983,
setting the matter for July 20, 1983 in Sacramento, California.
The Counsel for the Secretary appeared at the hearing on the
day and at the time set. Denson failed to appear. Prior to
the hearing date, numerous unsuccessful attempts were made to
contact Denson by telephone. Also, Denson had refused to accept
certified letters mailed to him with a return receipt attached.
The last Notice of Hearing was sent by both certified mail and··
regular mail.

After waiting a period of time, Counsel for the Secretary
advised the Judge that he had two witnesses present and wished
to proceed with the hearing and present his evidence. This was
granted.
On July 28, 1983, an order was sent to Denson to show cause
why he should not be held in default for his failure to appear
at the hearing and have penalties assessed against him. Denson
replied by letter received in my office on September 1, 1983 and
stated that his wife had marked the wrong date for the hearing
on his calendar. He included the July page of a 1983 calendar
showing the date of July 26, 1983 as the date for the hearing.
Denson further stated that he did not wish to have everybody
go to the expense of another hearing and again stated his argument
that high penalty assessments in this case would cause him extreme
financial hardship.
I accept his reply to the Order as consent
on his part to have a determination made on the record in this
case without the need for a second hearing. A copy of the above
letter and attachments were forwarded to the Secretary for his
comments but none were forthcoming.
ISSUES
The issues presented in this proceeding are:
(1) whether
respondent has violated the provisions of the Act and implementing
regulations as alleged in the proposal for assessment of civil
penalties filed in this proceeding; and, if so, (2) the appropriate civil penalty that should be assessed against the respondent
for the alleged violations based upon the criteria set forth in
section llO(i} of the Act.
In determining the amount of a civil penalty assessment,
section llO(i} of the Act requires consideration of the following
criteria:
(1) The operator's history of previous violations,
(2) the appropriateness of such penalty to the size of the
business of the operator, (3) whether the operator was negligent,
(4) the effect on the operator's ability to continue in business,
(5) the gravity of the violation, and (6) the demonstrated good
faith of the operator in attempting to achieve rapid compliance
after notification of the violation.
DISCUSSION
On June 30, 1981, an accident occurred at the Denson Mine.
located approximately 12 miles north of Nevada City, Nevada. A
1964 Hough Model 120C, serial No. 1210383, front-end loader
driven by Gary Gray went over the edge of an elevated roadway
falling into the pit at the mine. Gray suffered severe injuries,
including the loss of one leg. A second employee, Edward Grebel,
who was riding on the loader, was killed.

(Q[j

During an investigation of this accident on July 7, 1981,
MSHA Inspector Thomas Hubbard issued to Denson, as owner and
operator of the Denson Mine, a 107(a) order.No. 601630 charging
a violation of 30 C.F.R. § 55.9-3. 1/ This order removed the
Hough front-end loader involved in the accident from service due
to defective brakes. On the same day, citation no. 601631 was
issued alleging a violation of 30 C.F.R. § 55.9-22 2/ for failure
to have a berm on the elevated roadway into the pit~
The evidence shows that Gray and Gerber were new employees
of Denson at his gold mine. On June 3, 1981, Gray was driving
the front-e.nd loader and showing Gerber how it operated. They .
had driven to the refueling area, filled the tank and were pro- .
ceeding down the elevated road into the pit when the engine quit.
This caused a loss of the hydraulic steering power. The loader
went over the side of the elevated road and fell 15 feet into
the pit. Both Gray and Gerber were pinned under the machine.
During a conversation between MSHA Inspectors Hubbard and
George W. Constanich, testified to at the hearing, .Denson admitted
the brakes on the front-end loader were very poor (Transcript
at 10 and 21). Also, Constanich observed the repairs made to
the brakes of the Hough front-end loader which involved replacement
of a grease seal on the right front wheel, replacement of a brake
fluid line, and adding fluid to the brake system (Exhibit P33).
Both inspector Hubbard and Constanich testified that the
elevated roadway into the pit at the Denson Mine lacked any type
or semblance of a berm. The roadway was 10 to 18 feet wide,
200 yards in length, and had approximately a 4 percent grade
from the top to the pit floor. At the point where the loader
went over the side, it was approximately 15 feet from the edge
of the roadway to the pit floor (Tr. at 9, 28).
I find that the evidence establishes the two violations,
the one contained in citation No. 601630 for defective brakes and
that described in 601631 as to the lack of a berm on the elevated
roadway. Denson never denied these charges in either his letter
of December 2, 1982 treated as an answer, or in the one received
by me on September 1, 1983. Denson did allege in the latter
letter that the State of California's penalties for the same
violation was "about $170.00" based on lack of evidence to prove
the charge of defective brakes on the loader. However, I have

l/

55.9-3 Mandatory. Powered mobile equipment shall be provided
with adequate brakes.

2/

55.9-22 Mandatory. Berms or guards should be provided on the
outer bank of elevated roadways.

70G

found that the evidence does prove the brakes were defective
on the Hough front-end loader from the testimony of the two MSHA
inspectors.
PENALTIES
I find that the evidence establishes that the Denson Mine is ·
a small gold mine employing two miners to work with the owneroperator. There is no history of prior violations as this was
a·new mine listing.with MSHA.
As to negligence, I find that Denson was negligent in allowing
two new men to operate the Hough front-end loader without adequate
brakes. The testimony of the inspectors proves Denson knew the
brakes were as he stated "very poor."
The lack of a berm on the elevated roadway is evidence also
that Denson was negligent, as this would be obvious to him as he
was working at the pit with the employees.
The gravity of the violations is s·erious as evidenced by the
resulting injuries to Gray and death of Grebel. Either effective
brakes or a berm on the elevated roadway could have prevented this
accident. Both factors contributed to the result.
The Secretary proposed a penalty of $4,000.00 be assessed
for the violation of § 55.9-3 and a penalty of $2,500.00 for a
violation of § 55.9-22. Denson contends that penalties of this
size would cause him extreme financial hardship. At the hearing,
the Secretary recognized that this was Denson's main defense and
agreed to the receipt in the hearing record of Denson's income tax
returns for 1981 and 1982. These returns show that Denson suffered
a financial loss during both .years. Also, presented as evidence
was the fact that Denson had a large trust deed (loan) against
the land on which the mine was located and that these payments
were a financial hardship.
There is sufficient evidence in this case that the imposition
and collection of large penalties against Denson would affect his
ability to continue in business. Also, the evidence shows that
Denson did demonstrate good faith in achieving compliance with the
Act.
For the above two reasons and the fact that this is a small
mining operation, a reduction in the amount of the penalties proposed by the Secretary is warranted. However, the degree of
negligence and the gravity of these violations cry out for penalties
that would be effective in securing the cooperation of this operator

in following the Act in the future. The fact that it is a small
operation with only two employees and in financial trouble does
not alone warrant small penalties. The Act is designed to protect
the health and safety of miners working in small mines as well as
those in the larger ones, and probably is needed more than the
larger more responsible mine operators do.
I find that a penalty
of $200.00 for the violation in citation No. 601630 and $200.00
for the violation in citation No. 601631 is reasonable and appropriate in each instance.
ORDER
The respondent is ORDERED to pay civil penalties in the total
amount of $400.00 within 40 days of the date of this decision and
order, and upon receipt by MSHA, this case is dismissed.

'z?~¥-t£~
Vail

Virgip~.

Administrative Law Judge
Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, u. S. Department
of Labor, 11071 Federal Building, 450 Golden Gate Avenue, San Francisco,
California 94102 (Certified Mail)
Mr. Kenneth Denson, 17815 Champion Road, Nevada City, California 95959
(Certified Mail)

/ot

708

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400 ·
DENVER, COLORADO 80204

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

.
.
..

v.

.
.
HOMESTAKE MINING COMPANY,
Respondent

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 81-42-M
A.C. No. 39-00055-05039
Docket No. CENT 81-43-M
A.C. No. 39-00055-05041
Docket No. CENT 81-84-M
A.C. No. 39-00055-05044
Docket No. CENT 81-85-M
A.C. No. 39-00055-05045
Docket No. CENT 81-207-M
A.C. No. 39-00055-05054 I
Docket No. CENT 81-251-M
A.C. No. 39-00055-05055
Docket No. CENT 81-278-M
A.C. No. 39-0D055-05056
Homestake Mine

DECISION
Appearances:

Eliehue c. Brunson, Esq., Office of the Solicitor,
U.S. Department of Labor, Kansas City, Missouri,
for Petitioner;
Robert A. Amundson, Esq., Amundson & Fuller,
Lead, South Dakota,
for Respondent.

Before:

Judge Vail

STATEMENT OF THE CASE
These consolidated seven cases arise under the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. ·s 801 et seq. In each
case, the Secretary seeks to have a civil penalty assessed for an
alleged violation of mandatory safety standard. An evidentiary
hearing was held in Lead, South Dakota.
At the commencement of the hearing, the parties advised the
Judge that they had entered into an agreement to settle a number
of citations in the above cases. It was agreed that a written
stipulation would be submitted following the hearing presenting ,
the settlement agreement and the reasoning and rationale therefore. On February 13, 1984, the parties submitted a joint motion
to dismiss and approve settlement of designated citations in most
of the above cases. The provisions of this settlement agreement
are discussed further in this decision.

709

In spite of the settlement of many of the contested
citations, several remained to be tried and the hearing proceeded.
Based upon the entire record and considering all of the arguments
of the parties, I make the following decision. To the extent
that the contentions of the parties are not incorporated in this
decision, they are rejected.
ISSUES
·The principal issues presented are: Cl) whether respondent
has violated the provisions of the Act and implementing
regulations as alleged in the proposals for assessment of the
filed civil penalties; and, if so, (2) the appropriate civil
penalties that should be assessed against the respondent for the
alleged violations based upon the criteria as set forth in
section llOCi) of the Act. Additional issues raised by the
parties are identified and disposed of in the course of this
decision.
In determining the amount of a civil penalty assessment,
section llOCi) of the Act requires consideration of the following
criteria: Cl) the operator's history of previous violations, (2)
the appropriateness of such penalty to the size of the business
of the operator, (3) whether the operator was negligent, (4) the
effect on the operator's ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after
notification of the violation.
STIPULATIONS
The parties stipulated to the following:
1.
Homestake Mining Company operates a gold mine of
substantial size in Lead, South Dakota.
2. Petitioner has jurisdiction of these cases under the
Federal Mine Safety and Health Act.
3. Respondent received the citations, contested them and
also received notice of time and place of hearing.
4. The assessment and payment of penalties in these cases
would not affect the ability of the operator to continue in
business.
Docket No. CENT 81-42-M
The parties agreed to a settlement of two of the three
citations contained in this case as follows:
Citation No. 329587 was issued June 10, 1980 alleging a

710

violation of 30 C.F.R. § 57.6-1 and proposing the assessment of a
penalty of· $170.00. This citation concerned an allegation that
five cardboard boxes of electrical blasting caps were observed
sitting on a bench on the rib of 29 crosscut at the 5600 level in
respondent's mine. They were not stored in the day box. It is
stipulated that the caps were stored in protective containers
used when in transit and the caps were unlikely to explode. The
settlement proposed that the penalty be reduced to $20.00 and
given a non-significant and substantial designation. In light of
the explanation, this settlement is approved.
Citation No. 330473 was issued on June 11, 1980 for an
alleged violation of 30 C.F.R. § 57.6-127 and a proposed penalty
of $255.00. This concerned a blasting box which was not located
in the area in which the blast would be set off but rather
125-150 feet away. Since this box was not connected for blasting
or in an area designated to have blasts set off, the parties
stipulated that it should be classified as a non-significant
and substantial violation and the penalty reduced to $20.00.
Based upon the above explanation, this settlement is approved.
Citation No. 330225 was not a part of the proposed settlement agreement and was 'tried at the hearing set for this day.
Petitioner issued this citation alleging a violation of 30 C.F.R.
§ 57.12-30 which provides as follows:
Mandatory. When a potentially dangerous condition
is found it shall be corrected before equipment or
wiring is energized.
MSHA Inspector Guy L. Carsten testified that on June 11, 1980,
while inspecting 50-52 stope, 21 ledge off the 6200 level, he
observed a slit in the outer jacket of the 110 volt electrical
power cable to the slusher lights. The slusher lights were
unplugged and hanging on a rockbolt. Carsten was of the opinion
that they had been used or were going to be used (Transcript at
150' 151) •

Respondent argues that the petitioner failed to prove that
the cited slusher lights had been recently used or were going to
be used and therefore a violation of 57.12-30 had not occurred.
James Baumann, respondent's shift boss, testified that he had
been along on this inspection with Carsten. He stated that the
cited lights had been removed from service and a new one was
hanging on the opposite side of the slusher (Tr. at 164).
The specific issue is whether the petitioner has carried his
burden of proof in showing that the defective slusher lights had
been used in its defective condition or were going to be used.
Carstens testified that the lights were unplugged and hanging on
the wall. When asked if he remembered seeing other slusher

711

lights in this particular area, he answered that he was not sure
but that one of the stopes had two sets of slusher lights in it
(Tr. at 154). Baumann testified that the defective lights being
in the stope was a housekeeping problem as a new set hanging on
the opposite wall of the slusher was facing out in the stope and
were the lights that had been used (Tr. 164).
I find no violation occurred here. The petitioner's
evidence did not prove that respondent had used the defective
lights or was going to use them in their defective condition and
therefore did not violate the standard. I find that respondent's
witness Baumann's testimony credible as to the other replacement
lights being in the stope and that Carsten's memory on this point
vague. Citation No. 330225 is vacated.
Docket No. 81-43-M
The parties agreed to a settlement of all six citations
listed in this case as follows:
Citation No. 329591 was issued on June 12, 1980 alleging a
violation of standard 30 C.F.R. § 57.19-106 witn an original
assessed penalty of $255.00. It is proposed that it be settled
for $20.00 and considered a non-significant and substantial
violation. This citation involved maintenance work that had been
in progress for an extended period of time and little ch~nce of
injury to miners. It is approved.
Citation No. 329593 was issued June 17, 1980 alleging a
violation· of 30 C.F.R. § 57.11-1 with an original assessed
penalty of $150.00. It is now proposed that it be settled for
$20.00 and considered a non-significant and substantial violation.
This involved safe access to a stope which actually had been
abated by the shift boss with installation of the required
barrier prior to issuance of the citation. This is approved.
Citation No. 330476 was issued June 18, 1980 for an alleged
violation of 30 C.F.R. § 57.11-4 and a proposed penalty
assessment of $140.00. It was proposed that this citation be
vacated due to the MSHA inspector who issued the citation being
unavailable to testify. This citation is vacated.
Citation Nos. 567053 and 567056 involve alleged violations
of the same standard, 30 C.F.R. § 57.12-2 and proposed
assessments of a penalty of $114.00 respectively.
In the settlement agreement, the parties represent that the electrical fuse
boxes cited in these instances as not being bolted to the wall of
the stope were in fact wired firmly thereto. The standard is
silent as to the method required to fasten fuse boxes and
probability of injury was extremely low so it is proposed that
both citations be settled for $20.00 each and amended to be a
non-significant and substantial violation. This settlement is
approved.
Citation No. 566924 was issued on June 27, 1980 for an

712

alleged violation of 30 C.F.R. § 57.12-30 and a proposed penalty
of $160. 00·. The disconnect switch on number 9 ledge, 4250 level,
had a damaged door preventing the box from being either opened or
closed. It was agreed that respondent pay the full amount of the
original proposed penalty of $160.00 in settlement of this citation with no change in the original citation language. This is
approved.
Docket No. CENT 81-84-M
In Citation No. 329842, issued March 16, 1980, the petitioner
alleges a violation of 30 C.F.R. § 57.9-2 which reads as follows:
Mandatory. Equipment defects affecting safety
shall be corrected before the equipment is used.
MSHA Inspector Jeran Sprague testified that while riding on top
of the counter-balance in the Ross Shaft of respondent's mine, he
observed several loose guides and bolts between the 1700 and 2600
levels (Tr. at 178, 179). In the condition part of the citation,
Sprague stated there were other guides and bolts loose from 2600
to 3550 level (Exhibit P-17). Several bolts were exhibiting
evidence of having rubbed against the counter-balance as they
were shiny (Tr. at 186). Sprague contended that this created a
hazard as the counter-balance could catch on the protruding bolts
and tear out hundreds of feet of guides causing material to fall
down the shaft onto the mancage and possibly causing injuries to
miriers.
Respondent contends that if a violation of safety standard
the equipment defect would have to be
corrected before the equipment could be used.
In this case, the
inspection was conducted on Saturday, March 16, 1980, and
respondent was given until March 23, 1980 for abatement.
Further, that the citation was actually terminated on June 21,
1980 (Exh. P-17).
§ 57.9-22 had occurred,

The most credible evidence in this case establishes that
while conducting a shaft inspection of the counter-weight
compartment in the Ross Shaft, the inspector observed loose
guides in the area from 1700 to 2600 foot level and also 2600 to
3550 level. I find that such condition, based upon the
inspectors experience and expertise, warranted respondent to take
corrective action and the issuance of citation No. 329842 for a
violation of § 57.9-2. However, I do not find that the weight of
the evidence supports the petitioner's contention that this
violation was significant and substantial within the guide lines
established by the Commission in Cement Division, National Gypsum
Company, 3 FMSHRC 822 (April 1981). This test essentially
involves two considerations, Cl) the probability of resulting
injury, and (2) the seriousness of the resulting injury. I find
the testimony of the inspector unpersuasive as to the probability

713

of a potential for injury in the immediate future resulting from
the condition of the equipment cited. Further, William Stratton,
respondent's shift foreman, testified that it is unlikely that a
bolt used to hold the guides in place, and three-quarters of an
inch thick, would impede the movement of a 40,000 to 60,000 pound
counter-weight (Tr. at 217). Also, the guides were described as
being tongue and grooved at the joints and unlikely to come loose
even if a bolt were severed (Tr. at 216, 217). It is also
respondent's policy to inspect the shafts at the Homestake mine
every week and usually find thirty to fifty loose guide bolts
during an inspection (Tr. at 219). From this testimony which was
most credible, t find no evidence to support a contention that
the violation was significant or substantial. I also find a low
degree of negligence and gravity. I find that a penalty of
$50.00 is appropriate in this case.
Docket No. CENT 81-85-M
There are four citations included in this case.
Citation No. 329836, was issued on December. 9, 1979 for a
violation of 30 C.F.R. § 57.11-12 and a proposed penalty of
$195.00. The parties represented that this violation concerned
whether or not an area cited was a travelway requiring a guard
rail. Evidence established that the area was an emergency
escapeway not used in three years and with little probability of
a resulting injury as a result of this violation. The parties
agreed to settle this citation for $20.00. This settlement, is
approved. The remaining three citations, were tried at the
hearing.
Citation No. 330834 issued August 28, 1980 alleges a violation of 30 C.F.R. § 57.9-2 which states as follows:
Mandatory. Equipment defects affecting safety
shall be corrected before the equipment is used.
MSHA inspector Iver A. Iverson testified that he observed what he
considered was a defective plug on the cord that connects the
Mancha battery motor No. 068 to the batteries. It was described
in the citation as an electrical burn and shock hazard to miners
operating the equipment due to damage in the internal grounding
device within the quick lock connector. This could cause an
arcing between the male and female connector shell (Exh. P-1).
During the inspection, the motorman was requested to
disconnect the plug which operation might occur several times
during the day. Usually the motorman does this while standing in
the cab. However, at this time, the operator could not perform
this task from the cab and had to get outside and use considerable force to remove the plug. Iverson opined that when the
battery is put on charge in the battery station, any arcing could
cause a hazard in the dead-end drift where these stations are
located (Tr. at 20).

714

Respondent argues that the petitioner failed to carry his
burden of proof to show that the cited electrical connection was
a defect affecting safety. In support thereof, Kermit Kidder,
respondent's electrical maintenance engineer, testified that he
was familiar with the equipment cited, and that the outside case
of the two connecting brass parts is the part that grounds it to
the motor (Tr. at 113). The pitting inside the connectors
described by the inspector was considered by Kidder to indicate a
bad connection in the past (Tr. at 113).
I find that the evidence of record in this case fails to
support the alleged violation of § 57.9-2 described in the
citation. The specific issue is whether the defect described
therein affected the safety of any miners. The evidence
established that the connector was difficult to disconnect and
according to inspector Iverson's testimony contained "several
pi ts and scars,. which raise the • • • increase the surface." (Tr.
at 29). The evidence is conflicting as to whether there was any
electrical defect in this connector. Iverson admitted he did not
test it for a leakage to ground (Tr. at 30). I~ his opinion
there had been or was "arcing" but such an opinion was based on
what he said was an oxidized, or possible arcing spot around the
inner perimeter of the plug (Tr. at 29). He considered this
would allow leakage through the internal grounding system into
the frame or motor. Respondent's witness denied that the
internal grounding system was as described by the inspector and
based upon his electrical engineering degree and experience, I am
persuaded that his knowledge was more credible. I find that at
most the evidence shows the respondent had a maintenance problem
through wear and use in this part. The equipment was not ordered
removed from service. When the inspector was asked as to the
probability of an occurrence or an incident leading to an
accident from the condition he cited, he testified as follows:
"The use that these motors are put to, and the probability of
that happening, would probably be nil. I'd have to say that, in
my experience. But if it did happen, it would destroy equipment
and there's possible burn hazard to the operator." (Tr. at 40).
I do not find a violation proven in this case and citation No.
330834 is vacated.
Citation No. 330835 issued August 28, 1980 alleges a violation of standard 30 C.F.R. § 57.• 6-177 which reads as follows:
Mandatory. Misfires shall be reported to the proper
supervisor. The blast area shall be dangered-off
until misfired holes are disposed of. Where explosives other than black powder have been used, misfired holes shall be disposed of as soon as possible

715

by one of the following methods:
(a) Washing the stemming and charge from
the borehole with water;
(b) Reattempting to fire the holes if leg wires
are exposed; or
(c) Inserting new primers after the stemming has
been washed out.
Inspector Iverson testified that while inspecting 40-42 F
stope, 11 ledge and 4850 stope at respondent's mine, he observed
blue and yellow leg wires protruding from a hole in a recently
blasted area. Further inquiries revealed that this area had been
blasted on a previous night shift and that the misfire was not
discovered until the next night shift. Two shifts had worked in
the area during this time with evidence that miners had been
slushing ore within 20 feet of the misfire.
Petitioner argues that these miners should have seen the
wires the inspector saw and reported it to their supervisor and
removed the misfires. Respondent contends that .no one saw the
misfire and therefore no violation occurred. Also, if it had
been seen it would have been corrected immediately.
I find the evidence of record establishes that a misfire
occurred and that the operator did not correct this condition
prior to the inspector observing it. The record does not contain
any proof that the respondent or any of its employees in that
area were aware of this condition existing in the stope. It is
surprising that with the several shifts entering this stope
following the blast, and the admission that miners look for these
conditions, that it wasn't observed prior to the inspector
arriving. Apparently it should have been observed as the
inspector saw it shortly after entering the area.
Regardless of respondent's argument that it was without
notice, I find this is not a defense. First, I am convinced the
wires should have been seen by the miners and supervisors working
in that area and careful inspection of the area would have
revealed the misfire. Also, the Commission has held that an
operator may be held liable for a violation of a mandatory safety
standard regardless of a showing of fault. Unless the standard
so requires, a showing of negligence has no bearing in the issue
of whether a violation occurred but is a factor to be considered
in assessing a penalty. El Paso Rock Quarries, Inc., 3 FMSHRC
38-39 (January 1981).
I find that the violation of§ 57.6-177 stated in Citation
No. 330835 did occur and that a penalty of $255.00 is appropriate
in this case.

71ti

Citation No. 330861 was issued on September 10, 1980 for a
violation of 30 C.F.R. § 57.14-7 which reads as follows:
Mandatory. Guards shall be of substantial construction and properly maintained.
Respondent was cited for not having a cable guard or other
device on a tugger.
Inspector Iverson testified he observed a miner operating
the tugger by reaching across. the cable to move the handle to
engage the motor. He states that a guard would prevent clothing
or parts of the operator's body from becoming entangled in the
rotating drum and winding cable~ Iverson believed that a guard,
such as the guide which was observed laying near the tugger,
would be adequate.
Respondent contends that the cable guide was intended as a
spooling device for the cable as it was rolled on the drum during
operation.. Respondent further contends that there is no requirement that there be a guard on the tugger.
I find that the most credible evidence in this case supports
the arguments of the respondent. First, the tugger is not
manufactured with guards installed as suggested by the inspector.
The tugger is used as a source of power to pull objects by cable
and is operated at a very slow speed. The handle located on one
side is spring-loaded so that when pushed forward it causes the
drum upon which the cable is wound to move in one direction.
When the handle is pulled the other direction, it reverses the
drum direction. When the lever is released, it returns to center
and the tugger motor stops. The purpose of the guide which the
inspector required be put on the tugger was designed to guide the
cable onto the drum. It's purpose is not that of a guard at a
pinch point. Based upon these facts, I find that there was not a
violation of the standard cited in this instance and Citation No.
330861 is vacated.
Docket No. CENT 81-207-M
The parties agreed to a settlement of the one Citation No.
329331 in this case. This citation was issued for a violation of
30 C.F.R. § 57.18-2 as a result of a build-up of water in a bore
hole. The explanation for such occurrence was that an unknown
and unexpected thaw occurred over the weekend. Petitioner agreed
to reduce the original proposed penalty of $1,075.00 to $538.00
as he felt the negligence was not as great as originally thought.
That settlement is approved.

Docket No. CENT 81-251-M
Citation No. 330687 issued March 10, 1981 alleged a
violation of 30 C.F.R. § 57.12-6 and proposed a penalty of $98.00.
In the settlement agreement dated February 13, 1984, petitioner
represents that the MSHA inspector had previously vacated the
citation and respondent did not object. Therefore, Citation No.
330687· is vacated.
Docket No. CENT 81-278-M
Three citations were included in this case and all were
settled by the parties in the stipulation and joint motion to
approve settlement dated February 13, 1984.
Citation No. 329908 was issued on April 29, 1981 for a
violation of 30 C.F.R. § 57.12-82 and a proposed penalty of
$!22.00. Based upon recommendation of the MSHA inspector issuing
the citation, it is vacated.
Citation Nos. 330645 and 330646 issued on May 12, 1981 each
allege violations of 30 C.F.R. § 57.12-25 which involved
equipment not being grounded to provide protection for miners
working in the area. Petitioner agreed in settlement of these
two citations to reduce the penalties by 25% due to respondent's
good faith and prompt action in abating the violations. Citation
No. 330645 originally proposing a penalty of $170.00, is reduced
to $127.00 and citation No. 330646 with a proposed penalty of
$180.00 is reduced to a penalty of $130.00. These settlements
are approved.
CONCLUSIONS OF LAW
Docket No. CENT 81-42-M

Citation No.
329587
330225
330473

Date
6/10/80
6/11/80
6/11/80

30 C.F.R.
Section
57.6-1
57.12-30
57.6-127

Assessment
$170
84
255

Settlement
or
Decision
$20.00
Vacated
20.00
$40.00

Docket No. CENT 81-43-M
Citation No.
329591
329593
330476
567053
567056
566924

Date
6/12/80
6/17/80
6/18/80
6/24/80
6/25/80
6/27/80

30 C.F.R.
Section·
57.19-106
57.11-1
57.11-4
57.12-2
57.12-2
57.12-30

718

Assessment
$255
150
140
114
114
160

Settlement
or
Decision
$ 20.00
20.00
Vacated
20.00
20.00
160.00
$240.00

Docket No •. CENT 81-84-M
Citation No.
329842

Date
3/16/80

30 C.F.R.
Section
57. 9-2

Assessment
$305

Decision
$50.00

Assessment
$195
106
255
98

Settlement
or
Decision
$ 20.00
Vacated
255.00
vacated
$275.00

Docket No. CENT 81-85-M
Citation No.
329836
330834
330835
330861

30 C.F.R.
Section
Date
12/09/79 57.11-12
8/28/80
57.9-2
8/28/80
57.6-177
9/10/80
57.14-7

Docket No. CENT 81-207-M

Citation No.
329331

Date
12/24/80

30 C.F.R.
Section
57 .18-2

Assessment
$1,075

Settlement
or
Decision
$538.00

Assessment
$98

Settlement
or
Decision
Vacated

Docket No. CENT 81-251-M
Citation No.
330687

Date
3/10/81

30 C.F.R.
Section
57.12-6

Docket No. CENT 81-278-M
Citation No.
329908
330645
330646

Date
4/29/81
5/12/81
5/12/81

30 C.F.R.
Section
57.12-82
57.12-25
57.12-25

Assessment
$122
170
180

Settlement
or
Decision
Vacated
$127.00
130.00
$257.00

ORDER
It is ORDERED that the citations so listed above are vacated.
Respondent is ORDERED to pay civil penalties for the remaining
citations in the amounts shown above in satisfaction thereof.
Payment in the total amount of $1,400.00 is to be made within
forty (40) days of this decision and order. Upon receipt of
payment by the petitioner, these proceedings are dismissed.
/"""'

~/iJ!~-~ £c~'
VirgiVE. Vail
Administrative Law Judge

7lfJ

Distribution:
Eliehue c. Brunson, Esq., Office of the Solicitor
U.S. Department of Labor, 911 Walnut Street, Room 2106
Kansas City, Missouri 64106 (Certified Mail)
Robert A. Amundson, Esq., Amundson & Fuller, 215 West Main
P.O. Box 898, Lead, South Dakota 57754 (Certified Mail)

/blc

720

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

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

CIVIL PENALTY PROCEEDING
Docket No. CENT 83-9
A.C. No. 34-01317-03502

v.
TURNER BROTHERS, INC.,
Respondent

Docket No. CENT 83-13
A.C. No. 34-01317-03503

. Heavener No. 1 Mine

ORDER AMENDING DECISION
Appearances:

Allen Reid Tilson, Esq., Office of the Solicitor,
U.S. Department of Labor, Dallas, Texas, for
Petitioner;
Robert J. Petrick, Esq., Turner Brothers, Inc.,
Muskogee, Oklahoma, for Respondent.

Before:

Judge Melick

The final decision issued in these proceedings on
December 12, 1983, is hereby amended to correct a clerical
mistake, Commission Rule 65(c), 29 C.F.R. § 2700.65(c).
Accordingly, the Order on page 8 is corrected to read as
follows:
"In accordance with the Decision in this
case, Turner Brothers, Inc., is hereby ordered
to pay civil penalties of $1 070 within 30 days
of the date of this decision."

Law Judge
Distribution:
Allen Reid Tilson, Esq., Offi e o f t
of Labor, 555 Griffin Square Buildin
75202 (Certified Mail)

Solicitor, U.S. Department
Suite 501, Dallas, TX

Robert J. Petrick, Esq., Turner Brothers, Inc., P.O. Box 447,
Muskogee, OK 74401 (Certified Mail)
/fb

721

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

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

v.
U.S. STEEL MINING CO. INC.,
Respondent

.
.

.:
.

MAR 22 1984

CIVIL PENALTY PROCEEDING
Docket No. PENN 82-311
A.C. No. 36-03425-03502
Maple Creek No. 2 Mine

DECISION
Appearances:

Howard K. Agran, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Louise Q. Symons, Esq., United States Steel
Corporation, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Melick

This case is before me upon the petition for assessment
of civil penalty filed by the Secretary of Labor pursuant to
section 105(d) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801, et seq., the "Act", for nine alleged
violations of regulatory standards. The general issues
before me are whether the U.S. Steel Mining Company, Inc.
(U.S. Steel) has violated the cited regulatory standards and,
if so, whether those violations are "significant and substantial" as defined in the Act and as interpreted by the
Commission in Secretary v. Cement Division, National Gypsum
Company, 3 FMSHRC 822 (1981). If it is determined that violations have occurred, it will also be necessary to determine
the appropriate penalty to be assessed for those violations.
Evidentiary hearings were held in this case in Washington,
Pennsylvania.
Citation Nos. 1145289, 1249704~ and 1249705 allege violations of the regulatory standard at 30 C.F.R. § 75.200. That
standard provides in part that the "roof and ribs of all
active underground roadways, travelways, and working places
shall be supported or otherwise controlled adequately to protect persons from falls of the roof or ribs." The standard
also requires the operator to adopt a roof control plan and
violations of the plan have been held to be violations of the
standard. See e.g. Secretary v. Southern Ohio Coal Co.,
4 FMSHRC 1459 (1982).

Citation No. 1145289 more particularly charges as
follows:
There was a dislodged roof bolt in the
No. 16 split in No. 15 room of the eight flat
five RM section MMV 011. The area of
unsupported· mine roof was approximately 6 1/2
feet by 7 1/2 feet of mine roof. The roof
was loose and drummy at this location.
According to the Secretary, the manner in which the roof
was inadequately supported also vtolated the following
specific provisions of the operator's roof control plan:l
All resin-grouted rods shall be used
with bear:ing plates approved for use at the
mine. Bearing plates shall be installed
tight against the roof, header blocks,
crossbars, or other bearing surface material
after resin is cured. Tight against the roof
means that the plate cannot be rotated 360
degrees using normal hand pressure. (Exhibit
P-12, page nine, paragraph 2b).
MSHA Inspector Francis Wehr testified that on April 6,
1982, during the course of a regular inspection of the Maple
Creek No. 2 Mine, he observed a dislodged roof bolt hanging
1 Respondent argues in its posthearing brief that the citation did not allege a violation of its roof control plan. It
did not, however, contend at hearing that it did not receive
sufficient notice of the violation to prepare its defense and
did not request a continuance for such purpose. Moreover,
the citation does allege facts which if true could constitute
a violation of the operator's roof control plan and refers on
its face to the standard alleged to have been violated. The
citation herein accordingly comports with section 104(a) of
the Act, which requires that "each citation shall be in writing and shall describe with particularity the nature of the
violation, including a reference to the provision of the Act,
standard, rule, regulation, or order alleged to have been
violated." I find, moreover, that adequate notice was provided within the framework of Constitutional due process.
See S.S. Kresge Company v. NLRB, 416 F.2d l225 (6th Cir.
1969); NLRB v. United Aircraft Corporation, 490 F.2d 1105
(2nd Cir. 1973). Finally, the evidence herein supports a
violation of the cited standard for inadequate roof support
independent of the roof control plan.

723

from the roof in the cited area. As he later clarified, the
bolt itself was intact but its 6 inch square bearing plate
was loose and could be turned a full 3600. The roof surrounding the dislodged bearing plate was admittedly "loose and
drummy" thus indicating to Wehr that an unsafe condition
existed. Although the mine was not then in production, supervisory personnel were working in the immediate vicinity of
the dislodged bearing plate. Wehr opined that it was reasonably likely that material would fall from the roof surrounding the loose bearing plate, thereby injuring and possibly
killing mine personnel.
Samuel Cortis, Respondent's district chief mine inspector, disagreed about the hazard associated with the loose
bearing plate. According to Cortis, the bearing plate holds
only the loose material around the plate itself and provides
no additional support for the roof bolt. Even assuming that
Cortis is correct, it is undisputed that the bearing plate
does protect from debris falling from the area in close proximity to it. Accordingly, I find that a violation of the
roof control plan and the general provisions of 30 C.F.R.
§ 75.200 has occurred as charged and that it was "significant
and substantial" and a serious hazard. National Gypsum,
supra~ Secretary v. Consolidation Coal Co., 6 FMSHRC
,
(January 13, 1984).
According to Wehr, the bearing plate had been dislodged
by a nearby continuous mining machine.2
He reasoned
that since the mine had been in a nonproducing status for
several days, the condition had existed for that period of
time and should have been discovered during interim preshift
examinations. This analysis is not disputed and accordingly
supports a finding of negligence.
Citation No. 1249704 also alleges a violation of the
standard at 30 C.F.R. § 75.200 and states as follows: "There
was a violation of the approved roof control plan in the
No. 47 RM just inby split 39 of the two flat 47 room section
2 Respondent also argues in its brief that since the bearing
plate became dislodged sometime after.it was installed, the
evidence does not show a violation of that part of the roof
control plan requiring that bearing plates be installed tight
against the roof. The suggeste~ construction is, however,
too narrow. It is implicit in the language of the plan that
the bearing plates must continue to be tight against the roof
even after the initial installation. There was in any event
as previously noted a violation of section 75.200 for inadequate roof support independent of the roof control plan.

724

MMD004 in that two of the three temporary supports (roof
jacks) were more than four feet from the first row of temporary supports. The left jack was five feet eight inches and
second jack on right side was five feet away from .the first
temporary support installed in the working place. This condition was left from 12:00 a.m. to 8:00 a.m. shift." More
specifically, it was alleged at hearing that the cited conditions violated the roof control plan at Page 14, Drawing No.
2. (Ex. P-12).
The evidence supporting this violation is undisputed.
According to Paul Gaydos, assistant mine foreman, two of the
temporary jacks were admittedly out of compliance. Gaydos
disagreed, however, with the probability .assessment of a roof
fall under the circumstances. He opined that you could not
determine that a violation was "significant and substantial"
where two of the jacks were placed only about a foot out of
position.
·
Inspector Wehr did not appear to disagree that the
temporary supports were misplaced by only 6 inches to a foot
but he nevertheless maintained that because of the existence
of a slip in a clay vein in the nearby roof, additional
support should have been provided. The credibility of this
position suffers, however, by the fact that Wehr did not
require such additional support for the abatement of the
violation. He required only that the temporary support be
repositioned. Under the circumstances, I find that the
Secretary has failed in his burden of proving that the violation was "significant and substantial". I further must conclude that the hazard was only of moderate gravity. The
facts in Secretary v. Consolidation Coal Company, supra., are
clearly distinguishable. I agree with Inspector Wehr, however, that the preshift examiner should have seen the cited
condition and corrected it. Under the circumstances, the
operator was negligent.
Citation No. 1249705 also alleges a violation of the
roof control plan charging in particular that "in the sixth
flat right straight section MMV012 * * * the diagonal
distance of three intersections Cl) at four room 33 split
exceeded 32 feet for one diagonal distance C33 feet 9 inches)
(2) at 32 split in a track entry exceeded 32 feet for one
diagonal distance (34 feet) (3) at split 30 in C entry
exceeded 32 feet for one diagonal distance (34 feet 6 inches)
and posts or cribs were not installed to reduce the one
diagonal distance to 32 feet or less as required by the plan."

725

Inspector Wehr observed that slips, weakened strata, and
a cavity with cracks or separations also appeared in the roof
within the cited areas. The hazard was serious in his
opinion because of the existence in each of the cited intersections of these weakened roof conditions and based on his
experience that roof falls tend to occur more frequently in
intersections. It is undisputed that the intersections were
frequently travelled by miners.
According to Samuel Cortis, the operator's distriGt chief
mine inspector, there is no "magical formula" for establishing the maximum safe diagonal distance in intersections.
Cortis observed that the roof control plans at this mine were
originally approved by MSHA to allow a sum-of-the-diagonals
at 64 foot but there had been some intersection failures at
that length and MSHA required a shortening of the distance to
58 feet. He claims that based on his experience there has
been no difference in intersection failures between 58 foot
and 64 feet sum-of-the-diagonal distances. This testimony
does not, however, address the situation faced in this case.
These violations concern excess distances on one leg of the
diagonal. The testimony of Inspector Wehr regarding the
hazards associated with the excess diagonal distance accordingly remains unrebutted. Under the circumstances, I find
that a serious hazard existed herein and that the violation
was "significant and substantial". I also find that the
operator was negligent in failing to detect and correct what
was an easily discoverable violation. The condition was
abated in a timely manner when posts and cribs were installed
in all the cited locations thereby reducing the diagonals in
the cited intersections to within the prescribed distance.
Citation No. 1249706 alleges a violation of the standard
at 30 C.F.R. § 75.514 and specifically charges as follows:
"suitable connectors were not used in the power wiring going
to the off and on switch for the stammer coal feeder crusher
in the six flat right straight section MMV012. There were
two places where the wires were cut in [two] and the wires
were just twisted together and taped up."
The standard at 30 C.F.R. § 75.514 provides as follows:
"All electrical connections or splices in conductors shall be
mechanically and electrically efficient, and suitable connectors shall be used. All electrical connections or splices in
insulated wires shall be reinsulated at least to the same
degree of protection as the remainder of the wire."
There is no dispute that the wires were twisted together
as charged and that no connectors were used. According to

72G

Inspector Wehr, the cable was continually subject to being
pulled apart and was located in a busy area. Wires could
heat up in the case of a defective connection and because of
the dampness of the area, miners could be expected to suffer
electrical shock in the vicinity of the splice. Wehr pointed
out that "stakon" connectors are regularly used at the cited
mine and are considered to be "suitable" connectors.
While not disputing the factual testimony of Inspector
Wehr, Assistant Mine Foreman Joseph Stout opined that the
splice was nevertheless "nice looking". He testified,
moreover, that all employees are told not to touch are.as of
the wire not properly insulated and that the wire here cited
was hanging about 6 feet above the mine floor. I find that
the testimony of Inspector Wehr is not rebutted in material
respects and that indeed the hazard of electrical shock was
reasonably likely under the circumstances. I accordingly
find that the violation was serious and "significant and
substantial". I also find that the operator was negligent in
allowing splices to be made without connectors. The condition was abated in a timely manner when the wire was
respliced with connectors.
Citation No. 1249710 charges a violation of the standard
at 30 C.F.R. § 75.515 and specifically charges that "the
power cable entering the metal frame to the junction box of
the No. 122 sump pump located at 44 chute on B track Cherokee
was not passing through a proper fitting". It was further
alleged that the pump was then energized. The cited standard
requires that: "cable shall enter metal frames of motors,
splice boxes, and electrical compartments only through proper
fittings [and that] when insulated wires other than cables
pass through metal. frames, the hole shall be substantially
bushed with insulated bushing."
The facts as alleged in the citation are not in dispute.
According to Wehr, the cable entering the hole in the metal
junction box had nothing to prevent its wires from being
pulled from the box. While Wehr conceded that the insulation
on the wire was intact where it passed through the box, he
nevertheless observed that a sharp edge on the metal box
could readily break the insulation, thereby creating a potential short circuit. Wehr pointed out that if the circuit
breaker or pump fuse also failed, then a serious electrical
shock hazard existed. I accept Inspector Wehr's assessment
that electrical shock would be reasonably likely to occur
under the circumstances. The hazard was therefore serious
and "significant and substantial". Because the violation
also existed in an area of high visibility, I also find the
1

operator negligent for failing to locate and correct it.
violation was corrected in a timely manner after it was
cited.

The

Citation No. 1249711 also alleges a violation of the
standard at 30 C.F.R. § 75.514, specifically charging as
follows: "The No. 10 cable serving power to the No. 122 sump
pump located at Chute 44 on 1 B 1 track haulage on Cherokee
had been cut into and suitable connectors were not used to
make connection of the severed wires. The wires were twisted
together."
The cited allegations are not in dispute. Wehr observed
that the outer insulation was taped over the wires that had
been twisted together without a connector. The splice was
therefore subject to being separated in a wet environment.
The 550 volt direct current system would be sufficient to
kill a person exposed to the shock hazard. Accordingly, I
find that the violation was "significant and substantial" and
a serious hazard. The failure of the operator to use suitable splice connectors under the circumstances shows a clear
lack of supervision over its electrical work and this constitutes negligence. The record shows that the condition was
abated in a timely manner after it was cited.
Citation No. 1249717 was withdrawn by the Secretary at
hearing on the basis that the evidence admittedly did not
support a violation of the cited standard. The undersigned
agrees with the Secretary's assessment and approves of the
withdrawal. The citation is accordingly vacated. Commission
Rule 11, 29 C.F.R. § 2700.11.
Citation No. 1250082 also alleges a violation of the
standard at 30 C.F.R. § 75.515 and specifically charges as
follows: "The power cable entering metal frame to battery
charger located in the No. 13 room between 10 to 11 crosscut
in the eight flat five room section MMVOll was not passing
through a proper fitting. The cable was rubbing the metal
and the charger was energized at the time." According to
Inspector Wehr, the clamp that had been in position had
pulled out and slid down the cable. He observed that the
cable had already been pulled out a few inches and that if
the ground wire had pulled all the way out, there was a
potential for shock. Wehr conceded that the insulation on
the wires entering the charger was intact and that the
circuit breaker would ordinarily cut power to the charging
unit to prevent shock, however, if the breaker should fail, a
miner coming in contact with the charging unit could suffer
electrical shock and indeed could be electrocuted or

728

severely burned. The violation was therefore "significant
and substantial" and serious. The condition of the wires was
obvious and therefore should have been observed during the
course of preshift examinations. The operator was accordingly negligent. The condition was abated in a timely
fashion.
Citation No. 1249383 alleges a violation of the standard
at 30 C.F.R. § 75.503 and more particularly by reference to
30 C.F.R. § 18.46(b). Section 18.46Cb> requires that headlights "shall be protected from damage by guarding or location." The ci ta ti on here specifically charges as follows·:
"The No. 39 shuttle car serial No. 1802 approval No. 2Fl490A43
in six flat eleven room section was not maintained in permissible condition as the headlight opposite the operator was not
securely fastened to frame of shuttle car."
It is not disputed that the headlight was loose and only
one bolt was holding it in position. Under the circumstances,
I find that the light was not adequately protected from damage
and the violation is proven as charged. According to MSHA
Inspector Alvin Shade, there also existed the reasonable likelihood that the bouncing light might break or tear out its
wiring, thereby causing an arc. If methane were present under
the circumstances, there existed a hazard of an explosion.
Although it is undisputed that at the time the violation was
discovered, methane levels were within permissible nonexplosive limits, there is always the danger, according to Shade,
of a sudden inundation of methane. According to Shade, there
have been in the past explosive accumulations and ignitions of
methane at the subject mine. Within this framework, I conclude that the violation was indeed "significant and substantial" and of high gravity. I further find that the headlight
in the condition cited should have been discovered by the
operator and that accordingly it was negligent in failing to
discover and correct the condition. The violation was abated
in a timely manner.
In assessing the violations noted below, I have also
taken into consideration that the operator is large in size
and that a significant history of violations exists.
ORDER
Citation No. 1249717 is vacated. U.S. Steel Mining Company, Inc., is ordered to pay the following penalties within
30 days of the date of this decision:

729

Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.
Citation NO.

1249383
1145289
1249704
1249705
1249706
1249710
1249711
1250082

$150
170
170
200
140
12
12
13

Gary Melick
Assistant Chi
Distribution:
Howard K. Agran, Esq., Office.
Department of Labor, 3535 Mark
19104 (Certified Mail)

the Solicitor, U.S.
Street, Philadelphia, PA

Louise Q. Symons, Esq., United States Steel Corporation, 600
Grant Street, Pittsburgh, PA 15230 (Certified Mail)
/fb

730

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

MA!'\" q •·.

(.,· ,)

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-132
A. C. No. 15-11450-03501

v.

Riverway North Dock

RIVERWAY NORTH, INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Steffey

A prehearing order was issued on May 23, 1983, in the
above-entitled proceeding requesting, among other things, that
the parties advise me by June 20, 1983, whether a settlement
of the issues had been achieved. Although return receipts in
the official file show that both parties received the prehearing order 2 days after it was mailed, neither party submitted·
a reply to the prehearing order. Thereafter, an order to show
cause was issued on August 2, 1983, pursuant to the provisions
of 29 C.F.R. § 2700.63(a), requesting the parties to show cause,
by August 30, 1983, why they should not be held in default for
failure to reply to the prehearing order. Return receipts in
the official file show that both parties received the show-cause
order within 2 days after it was mailed but, again, neither
party has responded to the show-cause order, although nearly 7
months have elapsed since replies to the show-cause order were
due.
Since neither party replied to the show-cause order, each
party could be held in default for its inaction. The show-cause
order provided that if respondent were held in default, it would
be ordered to pay the penalty of $20 proposed by the Assessment
Office, and that if the Secretary were held in default, the proposal for assessment of civil penalty would be dismissed for
lack of prosecution. While respondent did not reply to the prehearing order or to the show-cause order, it did request a hearing with respect to the alleged violation of 30 C.F.R. § 71.802,
and it also filed an answer in which it fully stated its position. Since the Secretary has the burden of proving that a
violation occurred, I believe that the Secretary should be held
to be primarily at fault for failure to reply to two different
procedural orders and that the proper action for the Secretary's
apparent indifference about the disposition of this case should
be a dismissal of the action. Therefore, I find that the Secretary of Labor is in default for failure to reply to the prehearing and show-cause orders issued May 23, 1983, and August 2,
1983, respectively.

731

WHEREFORE, for the reason given above, it is ordered:
The proposal for assessment of civil penalty filed on
March 21, 1983, in Docket No. KENT 83-132 is dismissed.

~ a. oin/Hl~_u

Richard c. Steffel/T7
Administrative Law Judge

Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 280, u. s. Courthouse, 801 Broadway, Nashville,
TN 37203 (Certified Mail)
Riverway North, Inc., Attention: Mr. Worley Charles, Route 3,
Box 21, Ashland, KY 41101 (Certified Mail)

732

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

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 83-244
A. C. No. 15-11436-03502

v.

Fariston Tipple

KENTUCKY BLUE COAL COMPANY,
INC.,
Respondent
ORDER OF DISMISSAL
Before:

Judge Steffey

The proposal for assessment of civil penalty filed in the
.above-entitled proceeding seeks to have a penalty assessed for
a single violation of 30 C.F.R. § 48.28 alleged in Citation No.
2005380 dated November 3, 1982. The condition or practice
stated in the citation is that "[t]he employees at this tipple
have not received the required 8 hrs. annual refresher training." When respondent failed to file a reply to the proposal
for assessment of civil penalty, a show cause order was issued
on January 11, 1984, requiring respondent to explain within 30
days why it had failed to file an answer to the proposal for
assessment of civil penalty. Respondent promptly filed an
answer on January 16, 1984, stating that respondent has always
received a waiver for shower facilities and that respondent
has had the use of bathroom facilities through the kindness of
one of respondent's employees who lives not more than 25 feet
from respondent's property. There is nothing in respondent's
answer to the show-cause order to explain what a waiver as to
providing shower facilities or the use of a nearby bathroom
has to do with the sole violation at issue in this proceeding,
namely, respondent's alleged failure to provide 8 hours of
annual refresher training.
Section 2700.28 of the Commission's rules, 29 C.F.R. §
2700.28, provides as follows:
A party against whom a penalty is sought shall
file and serve an answer within 30 days after service
of a copy of the proposal on the party. An answer
shall include a short and plain statement of the
reasons why each of the violations cited in the proposal is contested, including a statement as to
whether a violation occurred and whether a hearing
is requested.

733

As I have explained in the first paragraph of this order, resporident' s answer filed on January 16, 1984, failed to comply
with section 2700.28 of the Commission's rules. Therefore, a
second order to show cause was issued on January 25, 1984. The
last paragraph of that order provided as follows:
Respondent.shall, by February 28, 1984, file an
answer to the proposal for assessment of civil penalty
in Docket No. KENT 83-244 specifically explaining why
a hearing is desired with respect to the violation of
section 48.28 alleged in Citation No. 2005380 issued
November 3, 1982. Failure of respondent to reply to
this second show-cause order will result in my concluding that respondent no longer wants a hearing with
respect to the alleged violation of section 48.28. I
shall thereafter find respondent to be in default and
respondent will be ordered to pay the full penalty of
$20.00 proposed by MSHA.
The return receipt in the official file shows that respondent received the second show-cause order on January 26, 1984,
but I have received no reply to that order. Consequently, I find
respondent in default for failure to file an answer to the showcause order issued January 25, 1984. Section 2700.63(b) of the
Commission's rules provides:
(b) Penalti proceedin~s. When the Judge finds
the respondent in default in a civil penalty proceeding, the Judge shall also enter a summary order assessing the proposed penalties as final, and directing that such penalties be paid.
WHEREFORE, it is ordered:
Respondent, having been found in default, is ordered to pay
a civil penalty of $20.00 within 30 days from the date of this
order for the single violation of section 48.28 alleged in Citation No. 2005380 dated November 3, 1982.

~a.rl. ~

Richard C. Steffe~~
Administrative Law Judge
Distribution:
Mary Sue Ray, Esq., Office of the Solicitor, u. s. Department of
Labor, Room 280, u. s. Courthouse, 801 Broadway, Nashville, ~N
37203 (Certified Mail)
Mr. Bill Wilder, Kentucky Blue Coal Company, Inc., P.
Corbin, KY 40701 (Certified Mail)

734

o. Box 750,

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

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

HAR 23 1984

CIVIL PENALTY PROCEEDING

.

Docket No. WEVA 81-498
A. C. No. 46-06158-03011 H
Docke't No. WEVA 81-508
A. C. No. 46-06158-03007 V

v.

Docket No. WEVA 81-509
A. C. No. 46-06158-03008

LITTLE-J COAL COMPANY, INC.,
Respondent

Docket No. WEVA 81~510
A. C. No. 46-06158-03009 V
Docket No. WEVA '82-86
A. C. No. 46-06158-03014
No. 1 Mine

DECISION
Appearances:

David T. Bush, Esq., Office of the Solicitor,
u. s. Department of Labor, Philadelphia,
Pennsylvania, for Petitioner;
Philip A. LaCaria, Esq., Tutwiler, LaCaria &
Murensky, Welch, West Virginia, for Respondent.

Before:

Judge Steffey

A hearing in the above-entitled consolidated proceeding
was held on January 17, 1984, in Bluefield, West Virginia, pursuant to section 105(d), 30 u.s.c. § 815(d), of the Federal
Mine Safety and Health Act of 1977. The parties presented evidence with respect to the petition for assessment of civil penalty filed by the Secretary of Labor in Docket No. WEVA 82-86.
At the conclusion of the presentation of evidence, I rendered a
bench decision assessing penalties for the nine violations alleged in that proceeding. Thereafter, the parties orally moved
that I accept a motion for approval of settlement with respect
to the remaining four cases. Under the parties' settlement
agreement, respondent would pay penalties totaling $2,790 instead of the penalties totaling $8,370 proposed by the Assessment Office with respect to the remaining four cases. The substance of my bench decision is first set forth below followed
by a discussion of the reasons for granting the parties' settlement agreement.
·

735

Docket No. WEVA 82-86
The issues in a civil penalty case are whether a violation
of the Act or the mandatory health and safety standards occurred
and, if so, what penalties should be assessed, based on the six
criteria set forth in section llO(i) of the Act. The petition
for assessment of civil penalty filed in Docket No. WEVA 82-86
seeks to have penalties assessed for nine violations of the mandatory health and safety standards based on nine violations alleged in Order and Citation No. 897273 issued January 19, 1981,
pursuant to sections 107(a) and 104(a) of the Act. The citation
portion of the order alleges five different violations of 30
C.F.R. § 75.900 which provides as follows:
Low- and medium-voltage power circuits serving
three-phase alternating current equipment shall be
protected by suitable circuit breakers of adequate
interrupting capacity which are properly tested and
maintained as prescribed by the Secretary. Such
breakers shall be equipped with devices to provide
protection against undervoltage, grounded phase,
short circuit, and overcurrent.
The condition or practice given as the basis for each of
the five violations of section 75.900 was identical, that is,
the inspector stated that "* * * the grounded phase protective
device for the 400 ampere circuit breaker" was inoperative with
respect to five different types of equipment, namely, the cable
to the belt feeder, the trailing cable to the coal-cutting
machine, the trailing cables for the standard and off-standard
shuttle cars, the cable for the belt conveyor, and the trailing
cable for the coal drill.
Before penalties can be assessed, it is necessary to determine whether the alleged violations actually occurred. One of
respondent's owners testified in this c~se and he agreed with
the inspector that the protective devices in the power center
were inoperative.
In such circumstances, I think that there is
no question but that the violations of section 75.900 occurred.
The Act requires that penalties be assessed on the basis of the
six criteria listed in section llO(i) of the Act.
I shall first consider two criteria of general applicability and my findings as to those two criteria will be applicable
for determining all penalties in this proceeding.
The first
criterion pertains to the size of respondent's business. The
operator first testified that he had two mines, each of which
produced 400 tons of coal per day, but later he stated that the
second mine became operative after 1981 when the violations
alleged in this case occurred.

73G

There was introduced as Exhibit 3 a cover page for the
assessments proposed by MSHA in Docket No. WEVA 82-86, and that
exhibit shows that the total company had a production of 79,042
tons on an annual basis in 1981. Those tonnage figures, together with the fact that the mine employed only 24 persons in 1981
on one maintenance and two production shifts, support a finding
that a small company is involved in this proceeding and that,
insofar as the criterion of the size of respondent's business
is concerned, only small penalties should be assessed.
The second criterion to be considered is whether the payment of penalties would cause the operator to discontinue in
business. There has been submitted as Exhibit A a copy of respondent's Federal income tax return for 1980 and that shows
that respondent made a taxable income of a little over $26,000
in 1980. There was submitted as Exhibit B a Federal income tax
return for 1981 and that indicates that respondent lost $22,748
in that year. The operator testified that respondent's financial condition became worse in 1982, and that at the present
time, respondent is operating only one mine with a total of 10
employees. There are also some unaudited income and loss statements in Exhibit B, but I have found from past experience that
it is not desirable to rely upon unaudited figures.
Therefore,
I am basing my findings solely on the Federal income tax returns
and the operator's testimony which support a finding that respondent is not in good financial condition.
I believe that
the evidence supports a finding that assessment of large penalties would have an adverse effect on respondent's ability to
continue in business.
The third criterion is respondent's history of previous
violations. Normally, the Secretary's counsel introduces a
printout from a computer showing how many previous violations
there have been, but I did not receive such a printout in this
case. Sometimes the official files have an indication of respondent's history of previous violatiOns, but in this proceeding, there is nothing in the official files pertaining to respondent's history of previous violations. Since there is no
evidence to support findings with respect to respondent's history
of previous violations, that particular criterion cannot be
evaluated in this proceeding.
The fourth criterion is the question of whether the operator demonstrated a good-faith effort to achieve rapid compliance
once a violation was cited.
In this instance, the operator did
show a good-faith effort to achieve rapid compliance because all
of the violations were corrected by the next morning and the inspector terminated the order at that time.
Therefore, I find
in this instance that respondent made a good-faith effort to
achieve rapid compliance.

73'7

The two criteria which have the most to do with assessing
large or small penalties in most cases are gravity and negligence. Since gravity or seriousness has been addressed more
than any other criterion, it is the one to which primary attention should be directed. Counsel for the Secretary, in his summation, appropriately stressed that criterion because the order
was issued under imminent-danger section 107(a) of the Act.
Counsel for the Secretary discussed the meaning of imminent
danger.
Section 3(g) of the 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."
The Commission has not written very many decisions with
respect to the meaning of imminent danger.
It did find that
an imminent danger existed in Pittsburgh and Midway Coal Co.,
2 FMSHRC 787 (1980).
In that case, the Commission commented
that it was not certain that the "probable as not" gloss added
to the definition of imminent danger by the former Board of
Mine Operations Appeals was necessary and that the Commission
would amplify its understanding of the meaning of imminent
danger in future decisions.
In several cases the Commission has, of course, pointed
out that the validity of withdrawal orders is not an issue in
civil penalty cases.
In Pontiki Coal Corp., 1 FMSHRC 1476
(1979) , the Commission stated that a judge should not vacate
orders in civil penalty cases because the issues in civil penalty cases are whether violations occurred and what penalties
should be assessed if it is found that they did occur. Consequently, it is not necessary in this proceeding to make a formal
finding as to whether the inspector issued a valid or invalid
order under section 107(a) of the Act.
It is sufficient that I
simply determine whether the alleged violations occurred and
assess penalties if I find that they did.
The evidence shows that the violations of section 75.900
were serious because the witnesses agreed that if a fault occurred in the equipment which was being supplied with energy
from the power center where the protective devices were inoperative, that energization of the frames of the shuttle cars
and other equipment could occur, and that a serious shock or
electrocution could follow if someone should touch the equipment in an energized condition. -The only witness who said that
mitigating circumstances existed was the operator who stated
that the mine was dry throughout and that there was less danger
of electrocution than if the mine had been wet. The inspector
was not asked about the wetness or dryness of the mine. Therefore, I find on the basis of the operator's testimony, that
there was at least the ameliorating factor that the mine was
dry. Nevertheless, the preponderance of the evidence supports
a fin~ing that serious violations of section 75.900 occurred.

738

The sixth criterion is negligence. The record shows that
the inspector went to the mine to make an inspection on the basis
of a complaint from the union. That complaint is Exhibit No. 1
in this proceeding. The existence of the complaint is some indication that respondent's management should have been aware that
some problems in the electrical system were occurring.
Respondent has introduced evidence, however, indicating that
the individual who made the report to the union and requested
that an inspection be made under section 103(g) of the Act was an
individual who had a propensity for causing trouble for the mine
owners. Respondent's witness said that at the time the inspection was requested, the person who requested the inspection was
trying to get payment for some vacation and sick days and that he
wanted to be paid in the first month of the year instead of being
paid throughout the year at such times as the days are used for
illness or other personal ~easons.
The Secretary's counsel has emphasized that I should not
consider the above-described type testimony because it is speculative. The Secretary's counsel contends that the violations
did occur and that whether there was some sort of animosity on
the part of one or more miners toward the operator on account of
labor problems should not affect the outcome of this case in any
way because the Act was properly working in this instance in that
the miners did sense that something was wrong with the electrical
system and did make a complaint to MSHA which was investigated
with the result that the order here before me was issued.
I
agree with the Secretary's counsel that the aforesaid events did
occur and that the inspector did make an appropriate inspection.
In considering the criterion of the operator's negligence, however, I think that the above-described matters are relevant because the operator testified that someone had put paper in some
of the protective devices to keep them from working. The inspector agreed that he found paper in at least. one of them, although
the inspector did not think the paper made the protective device
inoperative. The operator has also testified that it is easy to
loosen the doors on the protective devices so that they will not
work properly. The operator's testimony shows that it would be
a very simple matter for a disgruntled employee to sabotage the
power center and then make a complaint just to bring about
harassment of the operator.
The inspector himself indicated that he had not gone into
a situation in which so many of these protective devices were
out of o~der in a single power center, so there is circumstantial evidence to support the operator's claim that the violations
of section 75.900 may have been brought about through no fault
or knowledge of the operator. Moreover, the operator also testified without contradiction that he had not had any lost-time
accidents in his mine and that he had had no other electrical

13~

violations prior to this instance.
In such circumstances, I
find that the preponderance of the evidence shows that the violations of section 75.900 were associated with a low degree of
negligence.
·
If a large operator in sound financial condition were involved, I might find that the gravity of the violations warrants
a penalty of $5-00 for each violation, but in view of the fact
that respondent is a small operator in a very poor financial condition at this time, I believe that a penalty of $50 for each of
the violations is appropriate, or $250 for all five violations
of section 75.900.
The citation portion of Order No. 897273 also alleges a
violation of section 75.601 in that the trailing cable disconnecting devices to the belt feeder, the roof-bolting machine,
and the belt conveyor "* * *were not marked for identification".
The inspector testified that he did not consider the violation
of section 75.601 to be as serious a violation as the inoperative protective devices discussed above. The operator testified
that he did have chains hooked to the cables so that they could
not be plugged into the wrong circuit breakers, but he agreed
that he did not have the required identification on them. He
also thought that it might be remotely possible that a shuttle
car other than the one desired might be energized in some unusual
circumstances. Ordinary negligence was associated with the violation of section 75.601 because it is highly improbable that the
miner who asked for the inspection would have gone around taking
labels off of the various connecting devices if they had been on
the devices in the first place. The facts discussed above support assessment of a penalty of $25 for the violation of section
75.601.
The citation portion of Order No. 897273 also alleged occurrence of two violations of section 75.512 which requires that
electrical equipment be maintained in a safe operating condition
and also requires that a record of electrical examinations be
kept. The first violation of section 75.512 was that the power
center itself was not being maintained in a safe operating condition and the second violation of section 75.512 was that a
record of weekly electrical examinations had not been made for
a period of about 2 weeks.
The operator did not contest the fact that the violations
of section 75.512 occurred.
Therefore, I find that two violations of section 75.512 did occur. The inspector did not specifically discuss the violation of section 75.512 with respect
to the failure to maintain the electrical center in a safe condition because the lack of safety as to the power center related entirely to the five violations of section 75.900 which
have previously been discussed above. The same findings as to
negligence and gravity made above with respect to the inoperative

740

protective devices are equally applicable to the failure of the
power center to be maintained in a safe operating condition.
Since I have, in effect, assessed a penalty for the failure to
maintain the power center in a safe operating condition by
assessing total penalties of $250 for the inoperative protective devices, it is duplicative to assess a sixth penalty of $50
for the same condition which brought about the $50 penalties for
the five inoperative protective devices.
Consequently, I shall
assess a penalty of $20 for· the failure of the power center to
be maintained in a safe operating condition.
The second violation of section 75.512 with respect to the
failure to record the weekly electrical examinations was associated with ordinary negligence and the inspector did not classify
that violation as being particularly serious. Therefore, I shall
assess a penalty of $20 for the second violation of section
75.512.
The final violation alleged in the citation portion of Order
No. 897273 was a violation of section 75.515 which requires that
cables enter metal frames through proper fittings.
In this instance, there was no testimony controverting the inspector's allegation that the cable entering the metallic disconnecting
device for the roof-bolting machine was not provided with a
proper fitting.
I find that the violation occurred, that it was
associated with ordinary negligence, and that it was relatively
nonserious because there was no testimony showing that the cable
was worn in any way so as to constitute an immediate electrical
hazard at the time the violation was cited. Therefore, a penalty
of $20 will be assessed for the violation of section 75.515.
The total penalties assessed above amount to $335 for the
nine violations alleged in Citation and Order No. 897273.
It
should be noted that my bench decision, at transcript page 82,
refers to a total amount of $320. That page of the bench decision inadvertently failed to assess a specific penalty for the
violation of section 75.515. Therefore, the bench decision has
been corrected above to include assessment of a penalty of $20
for the violation of section 75.515.
Consideration of the Parties' Settlement Agreement
As previously indicated, the parties moved at the hearing
that I accept a settlement under which respondent agreed to pay
penalties totaling $2,790 instead of the penalties totaling
$8,370 which had been proposed by the Assessment Office for the
remaining four cases in this proceeding as to which no evidence
was presented by either party. The primary reason given at the
hearing for the settlement agreement is based on the evidence
discussed above to the effect that respondent is in poor f inancial condition and presently is barely continuing to operate with
production from a small mine which employs only 10 persons.

741

I believe that the two criteria of the size of respondent's
business and the fact that payment of large penalties would adversely affect respondent's ability to continue in business warrant acceptance of the settlement agreement.
It is my practice,
however, to allocate specific penalties to each of the alleged
violations. Therefore, I shall briefly discuss the violations
alleged in each docket for the purpose of allocating specific
penalties.
Docket No. WEVA 81-498
The petition for assessment of civil penalty in Docket No.
WEVA 81-498 is based on Order No. 886972 issued on February 2,
1981, pursuant to section 107(a) of the Act. Although the order
states that the roof-control plan was not being followed because
the roof-bolting machine operator and his helper were observed
working inby permanent supports, the order appears to be somewhat
defective in failing to state specifically that a violation of
the roof-control plan is a violation of section 75.200. Additionally, although the order purports to cite a violation, the
order does not show that the violation is being cited under section 104(a) of the Act. While it is possible that the order was
modified by the inspector at a subsequent time to show that the
citation was issued under section 104(a) and that a violation of
section 75.200 was intended to be cited, the official file contains no copy of such modification. Moreover, the order claims
that all working places are closed as a part of the order, yet
the only hazard cited in the order is that the roof-bolting
machine operator and his helper were working beyond permanent
roof supports in a crosscut to the left of the No. 4 entry.
The official file contains neither narrative findings by
the Assessment Office nor a proposed assessment sheet to show
how the Assessment Office arrived at a proposed penalty of $2,000
for the alleged violation of section 75.200.
In view of the
many infirmities in the order as it appears in the official file,
I believe that a penalty of $200 is all that should be allocated
to the violation of section 75.200 alleged in Order No. 886972.
Docket No. WEVA 81-508
The petition for assessment of civil penalty filed in Docket No. WEVA 81-508 seeks assessment of penalties for six alleged violations. The six violations are alleged in one citation and five orders written under the unwarrantable-failure
provisions of section 104(d) (1) of the Act. The citation and
two of the orders allege violations of section 75.400 because
of the existence of loose coal and float coal dust accumulations
in three different areas of the mine. The citation (No. 896226)
avers that the accumulations existed along the belt conveyor and
were from 1 inch to 14 inches in depth. The citation notes that
the preshift reports had indicated that the belt entry needed

742

cleaning and rock dusting and that the mine superintendent had
done some work toward cleaning up the accumulations and had, in
fact, reported the condition as corrected.
Since the citation.
itself shows that a difference.of opinion existed between the
superintendent and the inspector as to whether the accumulations
had been .cleaned up, it is likely that the operator would have
contested the inspector's allegations if a hearing had been held.
The official file does not contain narrative statements or
a proposed assessment sheet to show how the Assessment Off ice
derived its proposed penalty of $800, but the penalty proposed
for this alleged violation of section 75.400 is less than was
proposed for the other two violations of section 75.400. Therefore, I believe that the Assessment Office took into consideration the fact that the operator had made an effort to .clean up
the accumulations before they were cited by the inspector.
In
the absence of any information to support a different evaluation,
I believe the proposed penalty for the first alleged violation ·
of section 75.400 should be reduced to $200 because the equivocal nature of the allegations made in the citation make it difficult to find that the violation was associated with the high
degree of negligence which should accompany a.violation cited
under the unwarrantable-failure provisions of the Act.
The next two alleged violations of section 75.400 are based
on accumulations in all seven entries inby the loading point
where the depths are said to have ranged from 1 to 14 inches.
The other accumulations were said to exist in the intake entries
in depths of from 1/4 to 6 inches. The Assessment Office proposed penalties of $1,200 for each of the violations. The primary basis for the finding of unwarrantability seems to be that
the accumulations had not been reported by the preshif t or onshif t examiners. Bearing in mind that in settlement cases, I
must accept allegations in orders and citations as I find them,
without consideration of any defenses which respondent may have,
it appears that there is a basis for the.inspector's belief that
a high degree of negligence existed in the fact that accumulations were found in practically all areas of the mine on January 20, 1981, the day when the citation and orders were written.
I believe that the accumulations cited in the face area appear
to be more hazardous than the ones cited in the intake entries.
Therefore, I am allocating a penalty of $590 for the violation
involving accumulations inby the dumping point and $500 for the
accumulations in the intake entries.
Both violations of the roof-control plan cited in Order Nos.
896233 and 896234 consisted of an alleged failure to set a minimum of four temporary supports immediately after the loading
cycle was completed. The inspector's orders do not say that
roof conditions were unstable, but the Assessment Office proposed
a penalty of $1,000 for each violation of section 75.200. Most

743

of the proposed penalty, therefore, must be associated with the
inspector's having written the orders under the unwarrantable
failure provisions of section 104(d) of the Act. Since there
is no indication that anyone had gone under the unsupported roof,
I believe that each of the proposed penalties of $1,000 should
be reduced to $300.
Order No. 896237 alleges the final violation to be considered i~ Docket No. WEVA 81-508. That order states that respondent violated section 75.303 by failing to make an adequate preshift examination. The inspector's belief that the preshift
examination was inadequate is based on the fact that the conditions cited in the orders previously discussed were not reported
by the preshift examiner.
It is a fact, however, that the first
unwarrantable-failure violation cited by the inspector on January 20, 1981, refers to the fact that the loose coal accumulations in the belt entry had been reported for several shifts and
to the fact that the mine superintendent had had some work done
on cleaning up the loose coal accumulations. Therefore, if a
hearing had been held, it is likely that a difference of opinion
would have developed as to the inspector's claim that an adequate
preshift examination had not been made. The Assessment Office
proposed a penalty of $500 for the alleged violation of section
75.303.
In view of the speculative nature of the alleged violation, I believe that a penalty of no more than $100 is warranted.
Docket No. WEVA 81-509
The petition for assessment of civil penalty filed in Docket No. WEVA 81-509 seeks assessment of a single penalty for a
violation of section 75.200 based on Order No. 896232 issued
January 20, 1981. The violation alleged is that miners were
working inby permanent roof supports and the violation is based
on the inspector's belief that the miners were using equipment
whose controls were so close to the unsupported roof that the
operator of the equipment would necessarily have had to have
worked under unsupported roof. Here again, the inspector cited
the violation of section 75.200 in an imminent-danger order
written pursuant to section 107(a} of the Act without showing
that the violation was being cited pursuant to section 104(a) of
the Act.
The inspector may have modified the order to state
that the citation was made under section 104(a} of the Act, but
no modification was submitted in support of the petition for
assessment of civil penalty. There is no proposed assessment
sheet in the official file, but despite the fact that the violation was cited in an imminent-danger order, the Assessment Office
proposed a penalty of only $170. The infirmities in the order
indicate that allocation of a penalty of $100 is adequate for
the violation of section 75.200 alleged in Order No. 896232.

744

Docket No. WEVA 81-510
The petition for assessment of civil penalty filed in Docket No. WEVA 81-510 seeks assessment of a civil penalty for a
single violation of section 75.200 alleged in Order No. 896878
issued February 2, 1981, under unwarrantable-failure section
104(d) (2) of the Act.
The violation alleged involves the same
circumstances as the violation discussed under Docket No. WEVA
81-508 above, that is, failure of the operator to set a minimum
of four temporary supports immediately after the loading cycle
was completed·.
In this instance, the inspector• s order notes
that the condition was reported by the preshift examiner, but
the .inspector believes that a high degree of negligence existed
because five violations of section 75.200 had been cited since
January 20, 1981, the date on which the other violations of section 75.200 were cited, as previously described under Docket No.
WEVA 81-508, supra.
It appears that the inspector has given sound reasons in
this instance for believing that the violation was associated
with a high degree of negligence.
The inspector does not claim
that the roof conditions were particularly hazardous, but consistent failure to set temporary supports is a very bad practice
which should be deterred and civil penalties were provided in
the Act for that purpose. Therefore, I find that the Assessment
Office's proposed penalty of $500 should be allowed in its entirety in this case.
It should be borne in mind that all of the reductions of
the penalties proposed by the Assessment Office have been greatly influenced by the fact that a small operator is involved and
by the fact that I have found above that payment of penalties
would have an adverse effect on respondent's ability to continue
in business. For all of the reasons hereinbefore given, the
parties' settlement agreement should be approved.
WHEREFORE, it is ordered:
(A)
Respondent, within 30 days from the date of this decision, shall pay civil penalties totaling $335 with respect to
the nine violations alleged in Docket No. WEVA 82-86. The penalties are allocated to the respective violations as follows:
Citation and Order No.
Citation and Order No.
Citation and Order No.
Citation and Order No.
Citation and Order No.
Citation and Order No.
Citation and Order No.
Citation and Order No.
Citation and Order No.

897273
897273
897273
897273
897273
897273
897273
897273
897273

1/19/81
1/19/81
1/19/81
1/19/81
1/19/81
1/19/81
1/19/81
1/19/81
1/19/81

Total Penalties Assessed in Docket No.
WEVA 82-86

§
§
§
§
§
§
§
§
§

75.512
75.900
75.900
75.900
75.900
75.900
75.601
75.512
75.515

$ 20.00
50.00
50.00
50.00
50.00
50.00
25.00
20.00
20.00

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . $335.00
745

(B)
The parties' motion for approval of settlement is
granted and the settlement agreement is approved.
(C)
Pursuant to the parties' settlement agreement, respondent, within 30 days from the date of this decision, shall pay
civil penalties totaling $2,790.00 which are allocated to the respective alleged violations as follows:
Docket No. WEVA 81-498
Citation and Order No. 886972 2/2/81
§ 75. 200 .•••••••••••••••••••••••••••••• $

200. 00

Total Settlement Penalties in Docket No.
WEVA 81-498 •••••••••••••••••••••••••••• $

200.00

Docket No. WEVA 81-508
Citation No. 896226 1/20/81 § 75.400 ••••• $
Order No. 896233 1/20/81 § 75.200 ••••••••
Order No. 896234 1/20/81 § 75.200 ••••••••
Order No. 896235 1/20/81 § 75.400 ••••••••
Order No. 896236 1/20/81 § 75.400 ••••••••
Order No. 896237 1/20/81 § 75.303 ••••••••

200.00
300.00
300.00
590.00
500.00
100.00

Total Settlement Penalties in Docket No.
WEVA 81-508 •••••••••••••••••••••••••••• $1,990.00
Docket No. WEVA 81-509
Citation and Order No. 896232 1/20/81
§ 75.200 • . . . . . . . . . . . . . . . . . . • . . . . . . . . . . . $

100.00

Total Settlement Penalties in Docket No.
WEVA 81- 5 0 9 • • • • • • • • • • • • • • • • • • • • • • • • • • • • $

10 0 • 0 0

Docket No. WEVA 81-510
Order No. 896878 2/2/81 § 75.200 ••••••••• $

500.00

Total Settlement Penalties in Docket No.
WEVA 81- 510 • • • • • • • • • • • • • • • • • • • • • • • • • • • • $

5 00 • 00

Total Settlement Penalties in This
Proceeding ••••••••••••••••••••••••••••• $2,790.00

~c_s;3~~

Richard c. Steffey~~
Administrative Law Judge

746

Distribution:
David T. Bush, Esq., Office of the Solicitor, u. s. Department
of Labor, Room 14480-Gateway Building, 3535 Market Street,
Philadelphia, PA 19104 (Certified Mail)
Philip A. LaCaria, Esq., Attorney for Little-J Coal Company,
Tutwiler, LaCaria & Murensky, 30 McDowell Street, P. o. Box 739,
Welch, WV 24801 (Certified Mail)

747

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

March 23, 1984
KITT ENERGY CORPORATION,
Contestant

CONTEST PROCEEDING

v.

Docket No. WEVA 84-60-R

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

Citation No. 2263047; 11/2/83

.

Kitt No. 1 Mine

DECISION
Appearances:

Bronius K. Taoras, Esq., for Kitt Energy Corporation, Contestant;
Leo J. McGinn, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent.

Before:

Judge Merlin.

This case is a Notice of Contest filed on December 1,
1983, by Kitt Energy Corporation under Section lOS(d) of the
Act, 30 u.s.c. 815(d) to review a citation dated November 2,
1983, issued by an inspector of the Mine Safety and Health
Administration (hereinafter referred to as "MSHA") under
Section 104(d) (1) of the Act, 30 U.S.C. 814(d) (1). By
Notice of Hearing dated December 22, 1983, this case was set
for hearing on February 8, 1984. The hearing was held as
scheduled.
At the hearing, the parties agreed to the following
stipulations:
(1)

The applicant is the owner and operator of the
subject mine.

(2)

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

(3)

The Administrative Law Judge has jurisdiction of
this case pursuant to Section 105 of the 1977
Act.

(4)

The inspector who issued the subject citation
was a duly authorized representative of the
Secretary of Labor.

748

(~)

True and correct copies of the subject citation
and termination were properly served upon the
operator in accordance with the 1977 Act.

(6)

Copies of the subject citation and termination
are authentic and may be admitted into evidence
for the purpose of establishing their issuance,
but not for the truthfulness or relevance of any
statement asserted therein. The probative weight
to which the citation is subject will be determined in light of all the evidence of record.

(7)

Inspector Tulanowski conducted an inspection of
the Kitt Number 1 on November 2, 1983. The inspection that day began at approximately 11:45
p.m. on November 1, and continued into the early
morning of November 3, 1983.

(8)

In the course of his inspection, Mr. Tulanowski
discovered four areas as described in the subject citation along the D-11 belt where float
coal dust was present in the belt entry.

(9)

The float coal dust was present only on the floor,
and not on the roof or ribs or on the equipment
in the entry.

(10) The float coal dust described in the citation
constituted a violation of 30 C.F.R. 75.400.
(11) The subject mine is classified as a gassy mine,
liberating two million 400,000 cubic feet of
methane per 24 hours.
Section 304(a) of the Act, 30 U.S.C. 814(a), which also
appears in 30 C.F.R. 75.400, provides as follows:
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.
The subject citation No. 2263047, describes the violative condition or practice as follows:
Beginning on the left side of the D-11 coal conveyor
belt, between No. 1 and No. 2 block (approximately
50 feet) from No. 3 block to No. 4 block, (approximately 60 feet) from No. 8 + 80 block to No. 11 + 50

749

block on both sides of the conveyor belt (approximately 300 feet) and from No. 13 + 50 block to
No. 26 block, (approximately 1,000 feet) there was
float coal dust (black in color) deposited on the
rock-dusted surface of the mine floor.
Rock-dust
was not available on the D-11 section to dilute
the float coal dust at the time the citation was
issued.
This condition was recorded in the preshift mine
examiner's report since the 10-17-83, John Helms,
mine foreman and his assistants ha~ [sic] countersigned the preshift mine examiner's report
since the 10-17-83.
One 107(a) ·order and 3 citations has [sic] been
issued on float coal dust on belt conveyors at
this mine since 10-28-83.
·
At the hearing the inspector described the violative
areas the same way he had in the citation. He testified
that walking inby along the belt entry, he cited four areas.
The first area was fifty feet long with black float dust on
the tight side of the entry but well rock-dusted on the
clearance side (Tr. 26-30) {D-E on Jt. Exh. No. 1). The
second was 60 feet long with float dust again on the tight
side {Tr. 30-31) (F-G on Jt. Exh. No. ll. The third was 300
feet long with black float coal dust present on both sides
and underneath the conveyor belt (Tr. 31-32) {H-J on Jt. Exh.
No. 1). There were footprints on the clearance side where
people had walked and it was white underneath {Tr. 34). The
final area cited was one thousand feet long with float coal
dust on both sides and underneath the belt (Tr. 35-37) (K-L
on Jt. Exh. No. 1). Footprints again were visible on the
wide side {Tr. 37). The operator's mine examiner who had
accompanied the inspector specifically stated that he did
not disagree with the inspector's description of the areas
with float coal dust {Tr. 195). I accept the descriptions
given by the inspector in the citation and testimony.
As set forth in Stipulation No. 10, it is agreed that a
violation existed. The issues presented are therefore,
whether the violation was significant and substantial and
whether it resulted from an unwarrantable failure on the
part of the operator.

•

In National Gypsum Company, 3 FMSHRC 822 {April 1981),
the Commission first considered what would constitute a
violation which "could significantly and substantially
contribute to the cause and effect of a coal or other mine

750

safety or health hazard." The Commission held that a violation was of such a nature as could significantly and
substantially contribute to the cause and effect of a mine
safety or health hazard if, based upon the particular facts
surrounding that violation, there existed a reasonable likelihood that the hazard contributed to would result in an
injury or illness of a reasonably serious nature.
3 FMSHRC
at 825. In addition, the Commission expressed its understanding that the word "hazard" denoted a measure of danger
to safety or health and that a violation significantly and
substantially contributed to the cause and effect.of a hazard if the violation could be a major cause of a danger to
safety or health.
3 FMSHRC at 827.
More recently, in Mathies Coal Company, FMSHRC Docket
No. PENN 82-3-R etc., Slip Op. (January 6, 1984), the Commission stated:
In order to establish that a violation of a
mandatory safety standard is significant and
substantial under National Gypsum, the Secretary of Labor must prove: (1) the underlying
violation of a mandatory safety standard; (2)
a discrete safety hazard that is, a measure
of danger to safety -- contributed to by the
violation; (3) a reasonable likelihood that
the hazard contributed to will result in an
injury; (4) a reasonable likelihood that the
injury in question will be of a reasonably
serious nature. As a practical matter, the
last two elements will often be combined in
a single showing.
See also Consolidation Coal Company, FMSHRC Docket No. WEVA
80-116-R etc., Slip Op. (January 13, 1984), and Consolidation Coal Company, FMSHRC Docket No. PENN 82-203-R etc.,
Slip Op. (February 21, 1984).
The record demonstrates that the admitted violation
presented a discrete safety hazard, that of explosion and
fire. I accept the inspector's testimony that float coal
dust is light, easily put into suspension, and has a high
burning rate (Tr. 77). According to the inspector, a rock
falling on and smashing a power cable could provide the
spark which would ignite the float coal dust and cause an
explosion (Tr. 77-78).
In addition, the running of the belt
itself could start a fire if there were a stuck or frozen
roller creating heat to ignite the float coal dust which is
easily combustible (Tr. 80-82, 126-127). The operator's
shift foreman also stated that belt rollers running in float
coal dust could ignite if they got hot enough and he agreed
that float coal dust would intensify and magnify the danqcr
from ignition or heat in ---..a conveyor belt entry (Tr. 247-

751

•

248). The Commission has recognized the explosive character
of float coal dust. Old Ben Coal Company, 1 FMSHRC 1954,
1956 - 1957 (1979).
I further find there was a reasonable likehood that the
hazard of fire or explosion would result in an injury. As
set forth above, the inspector testified that an ignition
could result if a falling rock broke a cable, thereby creating a spark to ignite the float coal dust. The record shows
that the roof was very bad in this area (Tr. 129, 207). The
inspector stated that although the area was adequately
posted, rocks could fall in between the posts (~r. 129). He
believed it would not be unlikely for a large rock to fall
(Tr. 129). The operator's shift foreman also described the
roof as really bad and fractured, saying that it fell as it
was cut and that the unit could advance only ten feet at a
time (Tr. 251-252). At one point, the foreman stated that
it was very unlikely a rock would rupture a cable but he
agreed that it depended on how the rock fell (Tr. 219-221).
The foreman knew of instances in the belt entry of this mine
where rocks had fallen on power cables (Tr. 218).
In addition, with respect to the belt power cable which ran to the
center of the entry at one hundred foot intervals, he agreed
there was certainly a likelihood the cable would be ruptured
or cause an arc or spark from a falling rock (Tr. 249). The
operator's mine examiner expressed the view that the chances
of a rock hitting a cable were not reasonably likely but he
also stated it depended upon the size of the rock (Tr. 193).
He admitted the roof was scaling and chipping because it was
winter (Tr. 200J-200K). After reviewing all the evidence, I
conclude that because of the very bad nature of the roof,
the weight of the evidence indicates that there was a reasonable likelihood of a fire or an explosion due to an arc
from a ruptured cable igniting the float coal dust.
The record provides an additional basis for demonstrating the reasonable likelihood that the hazard involved would
result in an injury. As set forth above, the belt itself
could be an ignition source. The inspector testified that
although the belt was not actually running, the belt starter
box was energized, preparations were being made to run coal,
and then the belt would be started (Tr. 72-73, 79-80). The
inspector's testimony that this was a production shift is
persuasive. The operator's witnesses appeared somewhat
evasive on the point, either saying it might have been a
production shift or they were not sure (Tr. 200J, 237).
I
accept the inspector's opinion that friction or heat from a
belt in motion is a fairly common occurrence as a cause of
ignition and I therefore credit his view that some type of
ignition from the float coal dust he saw under the belt was
likely.
It is not necessary that the belt be in motion
because as the inspector stated, this might be considered an

imminent danger.
I reject the shift foreman's opinion that
there was no reasonable likelihood of belt rollers causing
an ignition of float coal dust because his opinion was based
only upon the fact that he did not receive any information
of rollers actually running in spillage or float dust (~r.
226-227). The foreman did not see the condition.
Finally, I conclude that there was a reasonable likelihood that the injury which would result would be of a reasonably serious nature. The inspector explained that the
belt entry was an escapeway, belt air was vented directly to
the return, and a fire in the belt entry could contaminate
all the entries with smoke (Tr. 82-83, 132-133). There was
a danger of injury or illness from smoke inhalation (Tr. 8486). Moreover, if escapeway entries were filled with smoke,
there was a hazard from falling or tripping due to lack of
visibility (Tr. 86-87).
In light of the foregoing, I decide that this violation
was significant and substantial in accordance with the tests
adopted by the Commission.
There remains for consideration the issue of unwarrantable failure.
The inspector testified that before he
went underground, he looked at the pre-shift and on-shift
book for the period October 27 to November 13 (Tr. 15-17,
43-47). A photocopy of this book was accepted into the
record as Joint Exhibit No. 2. The inspector testified that
he looked at the on-shift report for the afternoon of November 1 which stated that the belt need to be cleaned and
dusted and for "Action Taken" listed only "Reported" (Tr.
65) . The inspector did not remember how far back he went
into the book before he went underground (Tr. 15-17).
However when he came above ground, he went through the
entire book (Tr. 96). As the inspector testified, from the
beginning of the book starting with the 6:15 A.M. pre-shift
on October 27, there are repeated reports that the belt
needed cleaning and dusting (Tr. 58-65). The inspector
looked at the prior book and found such reports beginning on
October 17 (Tr. 67). The books indicated that no action was
taken until the 6:30 A.M. pre-shift for November 1 and the
10:00 A.M. on-shift on November 1 reports listed "Work in
Progress" under "Action Taken" (Tr. 64). Until then, the
only action taken was listed as "none" or "reported" (Tr.
58-65). It appears therefore that for two weeks beginning
on October 17, the operator did nothing to correct this
condition. On October 31, the union conducted its quarterly
inspection and Item No. 17 of its report dated October 31,
1981, reported "The entire D-11 belt conveyor line needs the
spillage removed underneath of several (12) rollers, float
dust removed from the tight side, clearance side and underneath of the beltline" (Tr. 55). As a result of the union's
report, the operator began to clean up the spillage (Tr.

753

161). However, as the inspector's uncontradicted description demonstrates, the belt still needed to be cleaned and
dusted in extensive areas.
The inspector testified that he relied upon the preshif t and on-shift books in finding unwarrantable failure
(Tr. 106). After returning above ground, he also examined
the pre-shift and on-shift book for the period October 8
through October 26 (Tr. 65-67). Based upon them, he concluded that for a period of two weeks, the operator knew or
should have known of the violative condition cited by the
inspector. This was more than enough time to completely
correct the violation.
The operator's safety supervisor and section foreman
testified that the books were inaccurate because work was
done to clean up the belt on October 31 and on the afternoon
shift of November 1 (Tr. 279-281). Even if this testimony
is accepted as correct, it cannot change the result. First,
the operator has the responsibility to make sure its preshift and on-shift books are correct and if they are not,
the operator must bear the consequences.
That the operator
recognizes this is demonstrated by the testimony of its
safety supervisor to the effect that after the issuance of
this citation, it improved its books because they were what
the inspector had to rely upon (Tr. 280). Secondly, the
operator's witnesses indicated that after the union's quarterly inspection, men were assigned to clean up the belt for
a few more shifts than the books show. However, there is no
dispute that the cited condition had existed since October 17, nor is there any dispute as to what the inspector
saw or his description of it. The operator's witnesses said
only that the men had cleaned up the spillage and had done
some cleaning and rock dusting (Tr. 294-296). This does not
detract from the inspector's actions because he made it
clear that he saw no spillage (Tr. 112-113). What is crucial is that although some float coal dust may have been
taken care of, it remained present for a long time over very
extensive areas of the belt entry.
It is this essential
circumstance relied upon by the inspector which is not contradicted by anything offered by the operator. Similarly,
the operator's evidence confirms that although some rock
dust had been used on the section, it was not enough to do
the job and there was no rock dust available on the section
when the inspector issued the citation (Tr. 187-189). The
existence of unwarrantable failure was confirmed by the
inspector and the operator's witnesses who explained how
easy it would have been to bring adequate rock dust onto the
section (Tr. 122-123, 190-191). Finally, the operator's

754

shift foreman explained that he took two men from the six
man crew of the idle 2A section and that the remaining four
men were setting up a longwall (Tr. 255). The shift foreman
could have quickly cleaned up all the cited float coal dust
if he had taken additional men from the 2A section. So too,
he could have used additional men from the D-11 section
itself, instead of having them continue to advance that
section. Accordingly, I conclude that the operator's evidence not only fails to cast any doubt upon the inspector's
finding of unwarrantable failure, but rather lends it further support.
The parties were ordered to file post hearing briefs.
On March 19, 1984, the Solicitor filed his brief, which was
most helpful. Counsel for the operator requested an extension until March 20, 1984, which was granted, but has filed
no brief.
In light of the foregoing, Citation No. 2263047 is
Affirmed.
The Notice of Contest is Dismissed.

\

\
Paul Merlin
Chief Administrative Law Judge

Distribution:
Bronius K. Taoras, Esq., Kitt Energy Corporation, 455 Race
Track Road, P. O~ Box 500, Meadow Lands, PA 15347
(~er
tif ied Mail)
Leo J. McGinn, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

/nw

75G

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

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

tlAR 271984

CIVIL PENALTY PROCEEDING
Docket No. WEST 81-236-M
A.C. No. 02-00024-05013 H

v.
PHELPS DODGE CORPORATION,
Respondent
and
UNITED STEELWORKERS UNION,
Authorized Miner
Represen ta ti ve

.

Morenci Mine Mill &
Trailing Dam or Disposal

DECISION
Appearances:

Linda Bytof, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner;
James Speer, Esq., and Stephen Pogson, Esq.,
Evans, Kitchel & Jencks, Phoenix, Arizona,
for Respondent;
Angel Rodriguez, President, Morenci Miners
Union, Local 616, United Steelworkers,
Clifton, Arizona,
for the Authorized Miner Representative.

Before:

Judge Morris

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et~' (the
"Act") arose from a January 8, 1981 inspection of respondent's
Link Belt crane. The Secretary of Labor seeks to impose two
civil penalties because respondent used the allegedly defective
crane. It is asserted that such use violated the mandatory
standard published at 30 C.F.R. § 55.9-2 which provides:
Equipment defects affecting safety shall be
corrected before the equipment is used.
Respondent denies that a violation occurred.
The parties offered extensive evidence on the issues. The
hearing commenced on March 25, 1982, was adjourned, and later
concluded on December 8, 1982 in Phoenix, Arizona.

75f>

The Secretary and the respondent submitted post trial briefs.
The Union did not file a brief but it concurs in the position
urged by the Secretary.
Issues
The issues are whether respondent violated the mandatory
standard cited above. The thrust of the case focuses on the
condition of the crane boom and the auxiliary transmission.
In the event a violation occurred then a secondary issue is
presented as to what civil penalty should be assessed.
Stipulation
At the commencement of the hearing the parties stipulated as
follows: respondent is the owner and operator of the Morenci
mine, mill and tailings dam; respondent is subject to the Act;
the administrative law judge has jurisdiction of this case;
authentic copies of the citation were properly served on the
operator; respondent is a large operator. The Morenci mine
employs approximately 904 employees on three eight-hour shifts
seven days per week; in the two year period prior to 1980 the
mine had 52 assessed violations of which 50 were paid; imposition
of a penalty will not affect the operator's ability to stay in
business (Tr. 4-5).
Summary of the evidence
MSHA's evidence: On January 8, 1981 Eugene Pesqueira and Ron
Barre, both MSHA inspectors, conducted a complaint inspection of
respondent's Link Belt crane No. 2, (hereafter "MC2"). The
complaint was that the crane had a faulty transmission as well as
a defective boom (Tr. 11, 12, 40, 41, 45). Upon arriving at the
worksite the inspector met company officials and miner representatives. They then proceeded to Silver Basin where MC2 was
located. The crane was not then operating. (Tr. 12, 13, 34).
The 90 foot boom on MC2, a 45 ton cranel/, consists of four
different sections. The inspector observed that 13 lattices of
the boom had been painted with an orange fluorscent paint.
Laney, the crane operator, said the defective lattices had been

1/ The 45 ton designation refers to lift capacity.

It means the
crane has a capacity to lift 45 tons if the boom is at its
minimum length, and it is on level ground with the outriggers set
(Tr. 15, 107) •

75'7

painted at his supervisor's direction (Tr. 13-15). The inspector
showed Laney six other faulty lattices that hadn't been painted
(Tr. 14). The lattices were bent, bowed, and improperly welded.
One was missing (Tr. 14, 19).
While inspecting the boom the inspectors learned from the
operator and driver (Laney and Cisneros) that the auxiliary
transmission had a tendency to slip when in 2nd gear. The crane
would then become free wheeling. (Tr. 28, 36, 37, 80). The
hazard is that the crane could roll either direction when picking
up weight (Tr. 28-29). After viewing the crane the inspector
told the crane operator to discontinue using it and drive it to
the shop (Tr. 29, 20).
There were seven B.O. (bad order> lattices in the top
section of the crane boom, six in the two center sections, and
four in one of the center pieces closest to the butt (Tr. 17-26,
Exhibits Pl-Pl2). One of the lattices had two welds on it. The
defect of this sleeve was that an odd piece of pipe was serving
as a lattice (Tr. 21, 22, P8). One lattice was missing (Tr. 23,
Exhibit PlO). The bowing and denting of the lactices is caused
by mistreatment. Lattices have a tendency to bow if the crane
picks up excessive weight (Tr. 26).
In the inspector's opinion a bad hazard exists if there are
over two bowed lattices in any section of a boom. A missing, or
bowed, lattice can weaken a boom and cause it to collapse. A
boom will collapse at its weakest point (Tr. 26-28).
In checking on the safety of the crane MSHA contacted Duke
Brown of Marco Crane and Rigging Company of Tucson, Arizona.
Brown advised MSHA that the boom is unsafe if there are two or
more lattices that should be replaced <Tr. SO, 51, 54). In
addition, according to Brown, reinforcing a lattice by welding
it with a pipe is not permissible (Tr. 54).
William D. Laney has operated various cranes since 1961.
The rated capacities of such cranes have been 25, 35, 45, 82 and
140 ton vehicles (Tr. 56). Laney operated MC2 and others in 1980
and 1981. Respondent had obtained MC2 from the Sterns Rogers
Company (Tr. ·62-64). Laney had received and reviewed a copy of
the operator's manual for MC2. (Tr. 65, 66). The maximum lifting
capacity is contained in the manual. Incline, lifting capacity
and side pull affect the lifting capacity of a crane (Tr. 66-69).
Damaged lattices reduce the strength in a boom column (Tr.
69, 70). Damaged lattices could cause the boom to collapse (Tr.
70).

758

Before the MSHA inspection Laney had been instructed by
Baughman, his supervisor, to lower the boom to a horizontal
position and paint anything he thought was defective and in need
of repairs CTr. 65, 71, 72). Laney had previously marked some
safety defects on his pink card (vehicle inspection report).
Further, he had expressed some concern over the safety of MC2 to
his supervisors or at safety meetings CTr. 73-75). He had been·
told that it was not necessary to repeat his complaints (Tr. 75).
On the day of the inspection Laney was operating MC2 at the
tailings dam. He was preparing to lay Driscoll pipe CTr. 75, 76).
Between December 1980 and the January 8th inspection Laney had
been primarily involved in the Driscoll pipe project (Tr. 76).
The day before the inspection they had been working on the decant
·tank in the same general area (Tr. 77).
Driscoll pipe is small and fairly heavy. It measures 36
inches by approximately 31 feet CTr. 76, 77). The total weight
of the pi~e being lifted can vary because of the residual
tailings _/ in the pipe CTr. 77-79) •.
Laney discussed using the crane with supervisor Baughman. A
combination of heavy pipes and muddy conditions at the worksite
caused Laney to think the whole job was unsafe CTr. 87).
After the lattices had been spray painted and inspected by
company supervisors Laney re>ceived and posted a notice from the
company CExhibit Rl) stating that the capacity of the crane was
being reduced by one third (Tr. 100, 101).
On the day of the inspection Laney and Cisneros discussed
the auxiliary transmission problems with the MSHA inspector. The
problem would arise when the crane was backing down a steep ramp
in reverse gear. It would then lunge down the hill as if the
auxiliary transmission had disengaged CTr. 80, 84). Instead of
moving at a crawl the crane would suddenly be airborne and free
wheeling (Tr. 80-83). The auxiliary transmission had jumped
out of gear the day before the inspection CTr. 37, 81, 8.2) • The
ramp at the worksite is 200 to 300 feet long; it is also quite
steep (Tr. 81, 82). In order to drive the crane it is necessary
to engage the four speed main transmission as well as the three
speed auxiliary transmission CTr. 82, 83). Laney believed the
transmission jumped out of gear when th'e main transmission was in
reverse (Tr. 83). This sporatic problem existed for a year or
2/ Tailings: the residual remaining after copper has been
reclaimed from the basic ore CTr. 77-78).

759

two (Tr. 23, 90). If the auxiliary transmission disengages when
carrying pipe two or three pipe fitters could be "wiped out" (Tr.
84). The transmission had been repaired and replaced eight to
nine months before the instant inspection. After the repair the
problem was intermittent but it got progressively worse (Tr. 90).
Laney reported this condition and the boom condition on his
pink card more than once. The company's pink card system had
been in effect six or seven months before the inspection. An
equipment operator usually fills out a card each day before
operating his machine. Occasionally he will fill it out after
operating it (Tr. 90-93, 95i 96, 227). In any event the equipment operator should fill out one card each day (Tr. 95, 96).
Exhibit R2, a pink card, was filled out by Laney; Exhibit R3 was
filled out after Laney talked to the MSHA inspector (Tr. 104,
222).
After the MSHA inspection the transmission -was repaired in
the company shop. After the repairs, in order to secure MSHA's
clearance, Laney road tested MC2 for ·a distance of about 600 feet.
It didn't jump out of gear in these tests (Tr. 228-233, Exhibit
R4).
Harold Moody, the district service manager for FMC
Corporation, testified at length concerning the Link Belt crane
(Tr. 117-173). The FMC operator's manual states that any bent,
damaged, or missing lattices should be repaired prior to use.
Such a defective condition causes the column effect of the boom
to be drastically reduced (Tr. 127). This reduces and can
destroy the load capacity of the boom (Tr. 127, 136-137). FMC
furnishes and recommends that an operator use an FMC replacement
lattice (Tr. 128, 134, Exhibits Pl, Pl4, Pl5, Pl6, Pl7).
The length of the boom, its radius, and its angle determine
the boom's maximum capacity under ideal circumstances (Tr.
130-132). All FMC rated crane capacities are based on ideal
conditions (Tr. 136-137, 139). The boom angle chart is bolted to
the main chord of the boom (Tr. 133-134).
Witness Moody had no opinion whether respondent's crane was
safe or unsafe; further, he had no opinion whether it could be
safely operated at a reduced capacity (Tr. 151, 167).
Four main chords constitute the main section of the
crane. Diagonal pieces, called lattices, connect the four chords
together and provide rigidity. The resulting configuration is
called a "picture frame" (Tr. 124, 168, 170). Chords, basically
straight, will flex to some extent when the crane lifts a weight
(Tr. 168).

760

The main chords can be checked with a stringline test. Such
a test would be a means to determine if the chord is within
acceptable tolerances contained in the factory specifications
(Tr. 169, 170).
When a given weight being lifted by a crane is reduced there
is a likelihood of less deflection in the ~herds (Tr. 156, 157).
FMC builds a safety .factor into its booms. All of its
capacity charts are based on an 85 percent tipping capacity of
the machine (Tr. 171).
In December 1980 the Steelworkers' Safety and Health representative. Larry R. Parsons, handled a grievance concerning
one of respondent's cranes. MC2 was not involved, but during the
grievance hearing respondent's representative James Armstrong
stated that one damaged strut tremendously reduces the lifting
capacity of a crane boom (Tr. 179, 183, 184, 191, 193, 194).
Before respondent had any knowledge that an MSHA inspection
would occur, various company officials conducted their own inspection of the cranes. Their inspection disclosed some damaged
lattices on MC2. The company then posted a notice stating that
the capacity of MC2 would thereafter be reduced by one third CTr.
195, 196, Exhibit Rl).
In February, or March, 1980 respondent weighed one section
of an Ameron 36 inch tailings pipe. The company sent the Union a
copy of the weight slip. It indicated that the pipe, filled with
tailings, weighed 45,680 pounds (Tr. 200, 201, Pl8, Pl9). The
company felt the Ameren pipe load had been within the 17.5 ton
limit of the crane CTr. 202).
Amin Alameddin 3/, a registered professional engineer with
an extensive engineering background, testified at length in the
case (Tr. 691-818, Exhibit P24). A substantial portion of his
employment with MSHA deals with the evaluation of safety hazards
as well as the structural analysis of different types of
equipment (Tr. 695-697). He has also calculated the structual
integrity of similar structures (Tr. 781).
The witness was familiar with the evidence in the case and
he was knowledgeable concerning the structure of a .tubular boom
and its design principle (Tr. 700).
Each member of a boom has a specific function.
Chords are
designed to carry all of the actual bending movement. Lattices
are designed to take the shear forces (Tr. 705, 706).
3/ Respondent's objections to Alameddin testifying as a rebuttal
witness are discussed, infra.

761

Alameddin hadn't seen nor inspected MC2. But its lattice
type tubular boom is based on a basic engineering design
principle (Tr. 709-714, Exhibits Pl4, Pl5).
When a load is lifted, forces are transferred to various
members. Each member is designed to carry a certain amount of
force or stress. The allowable stress must be below or equal to
the yield point (Tr. 716-719).
The stress limit of the member of a boom is based on the
assumption that the member is perfectly straight. If a member,
designed to carry two axial forces, starts to bow an amount of
eccentricity is created (Tr. 719, 720, Exhibit P26). A bend or a
bow is always a deformation that constitutes an irregularity in
the member itself (Tr. 721, 723). Critical buckling stress is
that stress where the material will buckle and fail (Tr. 718,
719). The buckling stress usually .exceeds the allowable stress
point (Tr. 718, 719). The elasticity limit is when a member,
having been stressed, will not return to its original limit (Tr.
725).
Continual loading continues the stresses on a deformed
member. In time, with continual loading, a deformed member will
break (Tr. 727, 728). This is also true if you reduce the amount
of the load (Tr. 728).

•.

Maximum crane load ratings are based on the boom angle, boom
length, radius of the load and the center of rotation to the
center of the load. Exhibit 14 (page 2) contains different
tables for the crane's lifting capacities (Tr. 748, 749). The
lifting capacity i~ limited by the strength of the boom. The
tipping load is that point at which the crane will tip even if
the outriggers are set (Tr. 750-751). Rated capacities are based
on 85 percent of the tipping load (Tr. 750, 751).
Witness Alameddin testified concerning the Secretary's
photographs: Exhibit Pl shows a dent and a small bow. This
member, as a result of continual loading, is between the
elasticity point and the yield point. Continual stress will
cause the member to break (Tr. 726). In Exhibit P6 the lattices
are beyond the elasticity point. All five are bowed to the
outside. These members were either overloaded or the crane was
misused <Tr. 728, 729). The situation in Exhibit P6 involves
additional stresses going into the chord irrespective of whether
there is any measurable deflection in the chord (Tr. 729-730).
If a lattice is missing (as in Exhibit PlO) it will take 75
percent less stress to buckle the load (Tr. 731-733, Exhibit P27).
Conversely, it will buckle with 25 percent of the allowable
stress on the original (Tr. 732). A missing lattice causes other
members to carry the load (Tr. 733).

762

Based on the yield point of materials manufacturers of booms
set outside limits for permissible deflection. The limit is
usually one inch in 36 inches CTr. 734). · Stresses still go into
a chord. Even though there is no deflection in the chord in
excess of 3/16 of an inch a boom could still buckle with continuous lifting and loading (Tr. 734, 735).
In reply to counsel's hypothetical question witness
Alameddin stated that it was not safe to operate MC2 at any load
capacity (Tr. 764-765). The lattices, bowed to the outside
(Exhibits 6 and 12), show the equipment is unsafe and damaging
the chord. A person in the field could not visually and with a
stringline test determine whether it was safe to operate the
crane at any reduced capacity. A person in the field could not
measure the additional stress CTr. 735, 737, 753-755, 765, 766).
In order to measure the stress it is necessary to calculate, look
at, and compute every single force on each member (Tr. 736). The
only calculation done by Alameddin related to the missing lattice
(Tr. 772).
Magniflux, or a dye penetrant, can be used to inspect a boom.
Witness Alameddin uses a straight edge rather than a stringline
to measure deflection. A stringline has problems if you are
measuring horizontally whereas a straight edge gives a more
stable line of reference (Tr. 739-741).
It is an established practice to discontinue using a boom
and fix any members in the boom that may be damaged. In
reviewing the literature the witness did not see any authority
indicating that damaged lattices did not have to be immediately
fixed before further use of the crane (Tr. 747, 748).
Witness Tony Cisneros also testified as a rebuttal witness.
He stated that until his retirement he generally drove MC2, while
Laney was its operator. Cisneros drove for about three years.
For two years the auxiliary transmission would jump out of gear
when it would go down hills in reverse (Tr. 680-683). This was
reported to the company on every pink card (Tr. 685, 688). The
company supervisors said they would fix the transmission CTr.
687).
Respondent's evidence .
Jackie Cooper, the general foreman of respondent's
mechanical department, supervises the department which includes
MC2. As a result of an unrelated discipline of an employee and a
later grievance involving the No. 6 crane Cooper ordered all
booms lowered. He further directed the operators to mark all
damage with orange paint. These orders were issued on December
10, 1980. (Tr. 237-243, 283, 284).
On December 26 Cooper asked Don Lunt, Can experienced boiler
shop foreman), and Emmet Baughman to accompany him on a visual

76J

~

inspection of the cranes CTr. 243-244, 247). These individuals
considered and discussed a one third reduction for MC2. Laney
and Cooper's supervisor, Bill Horner, concurred in the proposal.
The reduction was explained to the crews and a notice CRl),
posted in the crane cab, explained the reduction CTr. 249, 256,
Exhibit Rl).
Respondent's foremen are expected to know the basic weights
being lifted. After the one third reduction, assignments for MC2
were within its capacity CTr. 255).
After the MSHA inspection, the local FMC representative sent
its employee Palmer to the mine. After a visual inspection
Palmer stated the company was operating the crane within a safe
range. Cooper was confident in this view CTr. 250, 264, 265,
276, 277). A boom has never failed at this worksite due to the
malfunction of a lattice CTr. 279, 280). The company had never
received a complaint that MC2 was unable to safely lift pipe (Tr.
280).
In the course of its operations respondent maintains a daily
schedule control form CR5). Among other data th"e form identifies
the crew and the work order CTr. 259 ,. 29 5, 298, 299, Exhibit RS) •
The control schedule sheet is the only one identifying the work
project for the motor cranes CTr. 298). This form is filled out
in pencil when Cooper reviews it with his foreman before the
start of a shift (Tr. 292, 293). The exhibit shows Laney was
working on motor crane No. 3 on January 7, 1981 CTr. 263).
All pink cards (vehicle safety inspection form) are turned
into Cooper's office, although he doesn't receive a card each day
for each crane CTr. 326-328). Cooper produced at the hearing all
of the pink slips for MC2 subsequent to October, 1980 (Tr.
328-330). Laney, who is responsible as the crane operator,
signed 28 of the 30 pink slips (Tr. 331, 332).
The pink cards reflect the following: one slip, dated
December 15, 1980 and signed by Laney, refers to the lattice on
boom (Tr. 349). On December 19, bad lattice is noted on the boom
(Tr. 350). On December 22 Laney reported the boom lattice was
bent. On December 29 and January 8, 1981 the lattice was marked
B.O. (bad order). It was also noted on the cards under dates of
December 28, 1980, December 29, 1980 and January 8, 1981, that
the auxiliary transmission was jumping out of low range (Tr.
349-350). The report dated December 28, 1980 was Laney's first
written report indicating the transmission was defective (Tr~
245-266). On the following day Cooper became aware of the
notation indicating there was a transmission problem. Bradford,
at Cooper's direction, checked the problem and presented Cooper

with a repair order (Exhibit R6). Work orders go through
planning, .to scheduling, and then to the garage for the actual
repairs (Tr. 266-269, 352). Before the repairs were undertaken
the MSHA inspection intervened. The crane was not out of service
until the MSHA withdrawal order CTr. 271, 275, 341, 342).
Chappell, the repair shop general foreman, advised Cooper
that they could find nothing wrong with the transmission. The
repair order indicates the gear boxes were checked and found to
be "okey." The shift control linkage was also "okey." The
garage completed its repairs in four hours. The only repair
noted on the form was an increase in the poppet ball spring
tension. There were no other repairs to the transmission from
January 12, 1981 to the time of the hearing (Tr. 271, 347, 348,
Exhibit R6).
After the work by the repair shop Cooper ordered road tests.
In a road test on January 13, 1981 Tipton and DeLeon could not
get MC2 to jump out of gear. The following day Laney and
Cisneros had the same result CTr. 344, Exhibits R4, R7).
William Horner, assistant mechanical superintendent and
Cooper's supervisor, was familiar with the R.O. Saeny grievance
of December 1980 involving a crane, not MC2 (Tr. 396-398). The
grievance involved the failure of an employee to report damage to
company equipment. The Steelworkers filed the grievance. As a
result of the hearing on the grievance, in mid December, Cooper
directed that all crane booms should be thoroughly inspected by
their respective operators. The operators were to report any
damage or improper conditions in the booms. Laney, as the
operator, spray painted MC2. CTr. 400, 401).
Approximately on January 4, 1981, before the MSHA
inspection, the company asked Marco Equipment to estimate the
repair costs and to proceed with the boom repairs (Tr. 403). In
the interim Cooper, under Horner's supervision and involvement, ordered a one third reduction in all modes of operating
MC2. (Tr. 403, 409). Laney completely agreed. One factor
leading to the one third reduction evolved when Laney lifted,
without incident, a 26 ton crusher main frame. On that lift the
crane boom was extended at 80 feet (Tr. 406). The company's
notice of the one third reduction was posted in the crane. From
the time of the reduction until the MSHA inspection, the crane
was operated at the reduced capacity.
The Marco Company had been scheduled to inspect the boom on
MC2 on January 13, 1981. But due to the MSHA inspection of
January 8, 1981, the Marco representative accelerated his inspection (Tr. 410-412).
Buck Palmer, Marco's field representative, arrived on

765

January 9. Repairs to the boom were made by Marco in accordance
with Horne.r's instructions CTr. 413). After abatement of the
citation MC2 was returned to service CTr. 416).
Witness Horner was familiar with the vehicle safety
inspection reports Cpink slips) on MC2. The claimed defects did
not appear until after the operators painted the booms. (Tr. 406,
408). In December 1980 some pink slips mentioned the transmission. The transmission report lead to a subsequent work order
to repair it. From the time of the initial pink slip report on
the transmission the crane was working on level ground in the
Silver Basin tailings dam project CTr. 41, 419). The handwritten
complaint on Exhibit P20 4/ stated that the auxiliary transmission was jumping out of low gear CTr. 420).
The repair shop found nothing mechanically wrong with the
transmission. A routine road test, which consisted of driving
the crane up a long steep grade, failed to reveal a problem with
either transmission <Tr. 420, 421, 425). The road test sought to
simulate the conditions under which the problem had been reported
CTr. 425, 426).
Horner, a former mine master mechanic, is familiar with
transmissions. He indicated that the poppet ball spring on the
transmission was repaired. But that spring does not keep the
transmission in gear. Further, it had no adverse effect on the
operation of the transmission (Tr. 420, 429, 430). Nothing in
the transmission was found to be in need of repair and the crane
was returned to service (Tr. 431). A transmission will jump out
of gear if it is not fully and properly engaged by the operator
(Tr. 431).
The hearing on the R.O. Saeny grievance focused on the
failure of the crane operator to report damage to the equipment.
At the hearing respondent's representative Armstrong stated that
unreported damage could lead to a serious condition. He did not
state that any specific number of damaged lattices would render a
crane unsafe (Tr. 432, 433).
According to witness Horner the auxiliary transmission of
MC2 does not have a reverse gear CTr. 820).
Gordon L. Palmer, a person experienced in booms, testified.
He operates the boom repair service for the Marco Company CTr.
525-527, 532).

4/ Exhibit P20 consists of 29 separate vehicle safety inspection
forms. They are also referred to as "pink slips." The initial
form is dated October 25, 1980 and the last form is dated January
8, 1981.

766

On January 9, 1981 Palmer inspected MC2. The inspection
consisted of a visual walkdown over the entire boom, lacing by
lacing. Stringline tests failed to establish any vertical or
horizontal distortion. The chords were true- and there was no
distortion to the picture frames (Tr. 530-531).
Palmer, who is not a graduate engineer, relies on visual
inspection and stringline tests to check the integrity of a boom.
There are no calculations that can be made to determine whether a
boom is unsaf~ (Tr. 533, 534).
Palmer found that several spray painted lacings were outside
the limits of the manufacturer's recommended tolerances. Most of
the bowed lattices were located in the tip area which contains
the greatest concentration of lattices. (Tr. 540-542). The
damage indicated that the block may have been swinging into the
lacings (Tr. 541).
Lattices hold the chords and picture frames together. They
maintain the integrity and alignment of the boom. The chords,
acting as a column, carry the load when the boom is in the air.
The lifting of an object causes a slight bowing or flexing of the
chords. The chords return to their true position when the object
being lifted is released (Tr. 543, 544).
· The chords were not out of alignment. This indicates there
was nothing outside the realm of specifications pulling against
the boom or pushing the chords in and out (Tr. 544). The picture
frames were within the manufacturer's specifications. On January
9 Palmer did not do a structural load test but the 26 ton lift
was within the manufacturer's load chart. The crane would have
passed a load test before the lattices were replaced (Tr.
544-548). Nothing suggested to Palmer that the crane was unsafe
(Tr. 548).
Horner instructed Palmer to bring the condition of the crane
to one hundred percent of the factory specifications (Tr. 550).
On January 9 the chords, the picture frames and all sections were
within factory specifications. Half of the lattices th~t were
painted should not have been CTr. 546, 550). If the lattices
were not performing their function distortion would appear in the
chords (Tr.551). Link Belt cranes have a safety factor of 15
percent over the rated capacity (Tr. 552).
Witness Palmer denies ever telling MSHA inspectors that MC2
was unsafe. Likewise, he denies ever stating that a boom with
two damaged lattices should go out of service (Tr. 553, 554).
After the necessary repairs were made by Palmer an independent testing laboratory tested the boom and certified the

crane back into service (Tr. 549). Certification is a standard
procedure (Tr. 566). The company, known as Diversified Inspections, a testing laboratory, used a dye penetrant test, a
magniflex on the lattices, and a 10 percent structural overload
test (Tr. 566-568). These are accepted tests and more accurate
than a visual test. Palmer did not do any of the three tests
performed by Diversified (Tr. 568-570). Nor did Palmer do any
sort of calculations to determine the stress placed on each boom
member (Tr. 569-570).
Palmer found that 17 or 18 lattices were deformed (Tr.
577-578, 589, 592). Fifteen lattices were probably bowed less
than an inch. Two or three were in excess of that figure (Tr.
588). Three of the deformed lattices were in a 36 inch span; 14
were within a one inch span (Tr. 592).
The three deformed lattices with a deflection exceeding
factory specifications were on the left side of a 20 foot section
in one of the middle sections of the boom. One section had a
missing lattice near the point section (Tr. 593, 594).
In determining factory specifications witness Palmer relied
on the manufacturer's servicegram appearing in Exhibit Pl5 on
page 6, paragraph c. The servicegram states that lattices or
diagonals with a uniformed curvature not in excess of the ratio
of one inch in three feet may be straightened (Tr. 595-596).
Palmer believes those lattices needing repairs are those kinked
beyond their integrity (Tr. 600). A lattice bowed beyond the
manufacturer's specifications will affect the integrity of the
boom (Tr. 604). However, if a lattice is bowed less than one
inch the integrity of the boom is not affected (Tr. 606).
Palmer's opinion, supported by his three years of design engineering, is based on his 25 years of experience. He does not
rely on any literature nor the procedures of any manufacturer
(Tr. 608, 609).
Discussion
Certainly the evidence here does not want for credibility
issues.
In this case the gravamen of a violation of § 55.9-2 focuses
on whether there is an equipment defect and whether that defect
affected the safety of the equipment.
At the outset I find there was an equipment defect in the
crane boom. The uncontroverted evidence establishes that the
crane boom had one missing lattice and an additional 17 or 18
lattices were deformed in varying degrees. Having found that
there was an equipment defect we will now consider the pivitol
question of whether the defects affected the safety of the crane.
On the issues concerning the boom I credit MSHA's evidence.
The credibility issues of whether the boom defect affected its

768
\

safety principally clash in the testimony of MSHA's witness
Alameddin and respondent's witness Palmer. I credit Alameddin's
opinion, iri part due to his substantial educational background
(Tr. 692, 693, Curriculum Vitae in P24), and his experience (Tr.
695-697). He was familiar with the structure here, namely, a
tubular boom and its design principle (Tr. 700). Witness
Alameddin, as noted in the summary of the evidence, had reviewed
the testimony in the case and he reached certain unequivocal
opinions to the effect that it was unsafe to use MC2 with any
weight attached to the boom (Tr. 453-455, 764-765). It was
further unsafe to operate at any reduced lifting capacity such as
the reduced one third capacity set by respondent (Tr. 765).
Witness Alameddin also pointed out the inherent difficulties
with Palmer's stringline test method (Tr. 739-741). Alameddin
further reviewed the literature in the field and he found no
literature indicating that damaged lattices did not have to be
fixed before further use of the crane (Tr. 747).
On the other hand, I am not persuaded by respondent's
contrary evidence. It's principal witness, Palmer, has
considerable field experience. But he basically relies on visual
inspection and a stringline test. Palmer, as a certified welder,
would no doubt be adept at repairing the boom. But as a high
school graduate and lacking a degree in engineering he simply
lacks the necessary expertise in this case (Tr. 539, 563). In
addition, I believe that the boom on the 45 ton crane would be
unsafe even under the conditions found by Palmer.
Respondent's evidence: Witness Palmer found 17 deformed
lattices and a missing lattice (Tr. 577-578). The service
manuals received in evidence show the complexity of the HC-108B
carrier mounted crane. The service manual states in part in
Exhibit P-15, page 1 (3rd page in exhibit) as follows:
Cc) It is very important to maintain the supporting
lattice work on a tower, boom or jib section in good
condition. Damaged lattice allow deflection of the
main chord tubes under load so that they are no longer
in line; this destroys the true column effect of the
boom. The result is reduced boom strength and capacity.
Further, the FMC service manual states, in part, in Exhibit
Pl6, on page 2 of 6 as follows:
Lattice, Diagonals, and Picture Frame Repair
Lattice, picture frame angles, and diagonals must be
kep~ in good condition to hold th~ chords in proper
alignment. Bent lattice cause deflection of the main
chord angles so they are no longer "in line", thus
reducing and partially destroying the load capacity of
the boom.
·

768

A good percentage of damaged lattice can be
straightened by conventional methods. If the damage to
the lattice is beyond rep~ir by straightening, such as
a severe twist or kink, it must be replaced.
Further, the photographs (Exhibit Pl-Pl2) support Alameddin's
testimony.
In sum, I am persuaded by the Secretary's evidence and not
persuaded by respondent's contrary evidence.
Respondent, in its brief (pages 13, 14) initially urges that
the historical facts support its case. These facts are that the
crane proved itself in normal usage by lifting a crusher main
frame. Further, crane operator Laney could muster no evidence
indicating that the boom had a defect.
In my view the lifting of the crusher mainframe was accomplished, fortunately, without any adverse effect. In its
defective condition, the boom could have collapsed when it lifted
the 26 ton weight. I agree that Laney failed to. establish
(before he painted the boom) that there were any defects that
affected its safety. However, I would not anticipate that a.
crane operator would have the expertise to know whether or not
the boom was defective.
Respondent in its post trial brief, (page 12 et seq.)
further states that 14 or 15 of the 19 lattices may have had a
"ding" or slight "bend" but it is the condition of the boom and
all 154 lattices as a whole t.hat controls. Respondent argues
that since the chords, and picture frames in combination with the
lattices were within factory tolerances then there was no defect
"affecting safety" and hence no violation.
I disagree. Witness Alameddin's testimony addresses these
issues: each member has specific work to do, (Tr. 705), to carry
its share (Tr. 716); each member is designed to carry axial
forces (Tr. 706); if a member starts bowing an amount of eccentricity is created (Tr. 720, Exhibit P26); a bend or a bow is
always a deformation that is an irregularity in the bow itself
(Tr. 721-723); elasticity limit is where a member will not go
back to its original shape (Tr. 725); the dent and bow in Pl, P2,
P6, Pl2 will eventually break from continual stressing (Tr. 726);
a break will occur when you have continued loading on a deformed
member (Tr. 727-728), also this is true even though you reduce
the amount of the load (Tr. 728); in P6 there are additional
stresses going into the chord regardless of any measurable
deflection CTr. 729-730, 734); even though there is no deflection
in the chord in excess of 3/16 of an inch the boom could still
buckle with continuous lifting and loading (Tr. 735); in P6 and
Pl2 five lattices were all bowed to the outside, this was unsafe
and damaging the chord though it is difficult to measure (Tr.
735); the zone on P26 (illustrative drawing) between elasticity
point and yield point will change because more. lifting will
increase the stress, and ultimately the member will break (Tr.
736); the missing lattice (PlO) increases the length of the free

span; calculating this as 2L (L/R is slenderness ratio) it takes
75 per less stress to buckle the load (Tr. 731-733).
Respondent further attacks Alameddin's testimony for various
reasons. These follow:
Alameddin had not inspected the crane and he lacked
firsthand knowledge of it. I agree. But an expert witness is
not required to have first hand knowledge. Nanda v. Ford Motor
Company, 509 F. 2d 213, 221 (7th Circuit). In fact, hypothetical
questions as were used in this case, are no longer necessary.
Rule 702, Federal Rules of Evidence. In any event it is clear
that Alameddin reviewed all of the data including photographs and
the prior testimony in the case. This is sufficient for him to
form an intelligent opinion.
Respondent asserts Alameddin's calculations did not address
the boom as a whole but that he based his opinion on a hypothetical analysis as to the location of a single lattice but he
didn't know where the lattice was located.
I agree that Alameddin performed· a minimal amount
of mathematical calculations. However, at issue is his ultimate
opinion and its factual basis. That opinion is reflected in this
decision. The verbatim testimony appears in the transcript at
pages 735, 753-755, 759, 764-765.
Respondent objects to Alameddin giving sweeping conclusions
about the crane as a whole when he could not address the lifting
capacity of the crane.
In my view that the lifting capacity of the crane and
whether the crane is unsafe due to its defects are totally
different. In order to render an opinion on the lifting capacity
of the crane the witness stated he would want to inspect the
crane, measure everything on it, check for extra stresses such as
from a bowed member (as in exhibit PG, if all members bowed there
is strain on the chord). Also, he would want to know the tensil
strength, yield point, configuration and angle of the boom, width
of lattice metal, angle of the taper of the boom; further, he
would want to know about the gantry and about the cable.
Further, witness Alameddin disavowed any attempt to render an
opinion on the lifting capacity of the crane (Tr. 795). In
short, he was not testifying to the precise load the crane would
carry before it buckled (Tr. 803). Further, he had analyzed
other structures based on the same· design principle and he did
not need to know the weight of a load to give an intelligent
answer concerning whether the crane was safe to operate (Tr.
807).

771

But the witness explains that he did not need all of the
precise information, blueprints, etc. to render an opinion as to
whether a crane is safe to operate. {Tr. 800). The additional
detail is only necessary for a full structural analysis. Here,
there were too many deflections. This rendered the crane unsafe
for use {Tr. 800, 801).
Respondent declares that in previous cases opinions rendered
by Alameddin had only followed after he had made a personal
inspection. I concur the evidence confirms respondent's
statement. However, this argument addresses the weight to be
given Alameddin's testimony. As,previously noted, I find his
testimony credible.
Respondent objects to Alameddin testifying that the lattices
had an effect on the chords and that it was so small that Palmer
would have found it "very difficult to measure." He claimed,
however, he could see it from the photographs. At the same time
respondent argues no basis in fact upon which to conclude that
the chords were other than straight.
This foregoing argument confuses· different aspects of the
testimony. Not only Witness Alameddin but the judge can clearly
see the bowed and kinked lattices. See Exhibits Pl, P2, P3, P6,
P7, PB, PlO, Pll. The point is, given the circumstances here,
there apparently was not any deflection in the chord. But not
withstanding that fact the boom, in Alameddin's opinion, could
still buckle {Tr. 734). I find that opinion to be credible.
Respondent states that Alameddin never designed a boom and
never worked on booms. True, the witness has not designed a boom.
But he had done a number of evaluations on structural analysis
for different components and different structures including head
frames, drum construction, drum design, dragline boom collapse,
stability problems, evaluation of a storage bin design, et
cetera {Tr. 696). Also, in accordance with his training as an
engineer, he was familiar with the structure of a tubular boom
and with its engineering design {Tr. 700). Alameddin's testimony
on the whole demonstrates his knowledge of the field.
Respondent, in its brief, recasts its objection to
Alameddin's lack of first hand knowledge of MC2. But I find that
he demonstrated a thorough knowledge of the facts of the case.
He had been present at the December 1982 hearing and had reviewed
the transcripts of March 1982 hearing {Tr. 700).
In sum, I find that Alameddin had an extensive factual
foundation to render his opinion.
Respondent claims that the legal test of whether the
condition of the boom affected its safety is geared to the

772

judgment of the people whose experience in the industry put them
in the best position to evaluate the situation (Brief, page 26).
Therefore, ·respondent's evidence should prevail. In support of
its position respondent cites the Commission decision of Alabama
By Products Corporation, 4 FMSHRC 2128 (1982). The cited case
involves, by analogy, a regulation similar to § 55.9-2.
Respondent misconstrues the Commission decision.
In
Alabama By-Products the operator was arguing that a similar
regulation, (30 C.F.R. 75.1725(a)), was unconstitutionally vague
on its face.
In disposing of this argument the Commission ruled
that "the alleged violative condition is appropriately measured
against the standard of whether a reasonably prudent person
familiar with factual circumstances surrounding the allegedly
hazardous condition including any facts peculiar to the mining
industry, would recognize a hazard warranting corrective action
within the purview of the applicable.regulation" Alabama By
Products at 2129. Respondent's evidence is not entitled to any
type of preferential consideration over the Secretary's evidence.
It is the complete record that is to be evaluated. On that basis
I conclude that a violation occurred.
Further, various portions of respondent's evidence are at
times contradictory. Respondent claims that since there was
nothing unsafe about the crane at full capacity, and it
necessarily followed there was nothing unsafe at two-thirds
capacity (Brief, page 27). Respondent's position is contradicted
by the fact that it voluntarily reduced the crane's capacity
before the MSHA inspection.
Respondent's contentions that the crane was safe at full
capacity and necessarily at two-thirds capacity are rejected.
The citation should be affirmed.
Auxiliary Transmission
The evidence on this issue is contained in the summary of
the evidence. To briefly encapsulate it:
When in low gear the auxiliary transmission on MC2 would
periodically jump out of gear. The operator and driver
complained to the MSHA inspectors in January 1981 and also
advised the company by noting the defect on the vehicle safety
inspection forms (pink slips). This hazardous condition existed
for a year or two.
Respondent's pink forms show Laney's first report was dated
December 28, 1980. This was after the booms had been painted.
The company began transmission repairs. The repair shop
found no transmission defect and two road tests failed to
reproduce the complained of condition. The vehicle was returned
to service and no repairs were thereafter made to the
transmission.

773

Discussion
It is my view that if the auxiliary transmission unintentionally slipped out of gear while the crane was being
operated there would be a violation of the regulation. But on
the issues cocerning the auxiliary transmission I credit
respondent's evidence. I reach this conclusion based on several
factors: Laney and Cisneros both indicated the transmission
problem had existed for sometime, certainly as long as a year.
Also I agree that such a condition, if it existed, would be
exceedingly hazardous to the crane operator, the crane driver and
persons in the immediate vicinity. Such an unsafe condition
would be one that would be quickly reported. Laney was never
hesistant about reporting defective conditions on MC2. But the
vehicle report forms do not contain a reference to the auxiliary
transmission until December 28, 1980 when the following notation
appears: "Aux. transmission jumping out of low range" Also
appearing on the form is the notation of "W.O.CG." (Exhibit
P20 ~/, 12/28/1980).
.
If a transmission defect existed, one would think it would
appear on the report forms before December 28, 1980.
I am further persuaded by witness Horner's testimony. As a
former qualified master mechanic he was familiar with transmissions. The repairs in the shop (increasing tension on the
poppet ball) did not affect the transmission. In addition, no
defect was found in the transmission.

5/ At this point an explanation of Exhibit P20 is in order: The
exhibit is designated by a single number and it consists of 29
separate report forms each bearing different dates. Each form
contains a line for the operator to sign and a place to enter the
date and type of equipment involved. The format also lists 13
specific items to be checked under the "OK" or the "B.O." column.
The exhibit received in evidence, contains reports for MC2
beginning October 11, 1980. In 1980 are October 11, 22, 23, 24,
25, 26, 27, 28, 29, 30. November 11, 14, 17, 18, 25, 30.
December 1, 15, 16, 19, 22, 26, 27, 28, 29, 20, 31. Exhibits 20
also contains vehicle inspection reports for January 2 and 8,
1981. Exhibits R2 and R3 are two vehicle inspection forms
submitted on the day of the inspection. Only one appears in
Exhibit P20. Exhibit P20 is a record kept in the ordinary course
of business. I further find it to be authentic and credible.

774

The Secretary's post trial brief (page 2) urges that a
transmissi6n slipping out gear is a defect within the meaning of
Section 57.9-2. In support of his position he cites the writer's
decision in Allied Chemical Corporation, 4 FMSHRC 503 (1982).
The cited case, pending on review, is not as broad as the
Secretary claims. The view I expressed is necessarily limited by
the facts •. In Allied Chemical a violation was found to to exist
because large soft steel bolts in two different chocks were
missing. Obviously, the manufacturer included steel bolts for a
purpose. Hence, the statement appears in the decision that
Allied violated the standard because the steel bolts were
missing.
In this case the evidence fails to show there were missing,
worn, or damaged transmission parts. I am further persuaded by
respondent's contrary evidence. In short, I do find that there
was a defect. Accordingly, that portion of the citation relating
to the auxiliary transmission should be vacated.
Issues raised in the Hearing
Respondent renewed its objections to the presentation of
witness Alameddin as a rebuttal witness (Brief, page 22). It is
asserted that Alameddin should properly have been presented in
the Secretary's case in brief. Since he was not so presented the
non-rebuttal testimony should be excluded (Tr. 701).
The judge ruled that the complete testimony of witness
Alameddin was generally admissible (Tr. 701-704). Further, the
judge indicated he would grant respondent an opportunity to meet
any issues raised in the rebuttal (Tr. 703, 704). No request was
made.
The Administrative Procedure Act CA.P.A.), 5 u.s.c. § 551 et
seg. adopted by Commission Rule 1, 29 C.F.R. § 2700.1, sets forth
the procedural rights of the parties under the Mine Safety Act.
The A.P.A. provides, in part, at 5 u.s.c. 556 as follows: "A
party is entitled to present his case or defense by oral or
documentary evidence, to submit rebuttal evidence, and to conduct
such cross examin·ation as may be required for a full and true
disclosure of the facts." Hearings before administrative
agencies do not require strictness in the observation of the
rules of evidence if fundamental fairness is observed. Rosedale
Coal Co., v. Director of U.S. Bureau of Mines, 247 F. 2d 299
CC.A. 4, 1957). In the instant case respondent had the opportunity to present evidence to meet all issues raised by
Alameddin's testimony. Respondent's objections are again overruled.
At the hearing the judge received, subject to respondent's
objections, the ~estimony of witness Alameddin as to findings
developed from literature in the field pertaining to damaged
crane booms (Tr. 742-748).

775

Under.Rule 703 of the Federal Rules of Evidence the
pertinent inquiry is whether the facts are of a type reasonably
relied on by experts in the particular field. Since the answer
is affirmative the evidence was properly received and
respondent's objections are overruled Bauman v. Centex Corp., 611
F. 2d 1115, 1120 (5th Circuit>.
Respondent's post trial brief renews its objection made at
the trial that the testimony of witness Moody should be excluded.
The basis of the objection was that the Secretary failed to
disclose Moody as a witness in the case (Tr. 113-117).
There may well have been discovery sought in other cases
about the same time involving the parties (CENT 80-349-M and WEST
81-296-M). But the judge permitted Moody to testify because
there had been "No discovery sought or ordered by the Commission
in this case" (Tr. 114). While there was a combined notice of
hearing there was no order consolidating the cases. I adhere to
my original ruling and permit the testimony of witness Moody.
At the trial the judge refused certain of the Secretary's
exhibits (Refused Exhibits P29, P30, P31). The ruling involved
the scope of Rule 803.18, Federal Rules of Evidence. (Tr.
815-818). Since the Secretary did not renew his objection in his
post trial brief it is not unnecessary to review the ruling in
this decision.
Civil Penalty
The six criteria for assessing a penalty are set forth in 30
The parties stipulated that the operator had 52
assessed violations in the two year period prior to 1980. A
penalty would be appropriate and would not affect the operator's
ability to continue in business. I consider the operator was
negligent because it knew there was a boom problem about December
10 when the boom was lowered and the fluorescent paint was
applied. But no remedial action was taken for the boom repair
until the MSHA inspection on January 8, 1981. The gravity is
severe since a boom collapse would be an extreme hazard to
employees operating the equipment and others in the vicinity.
Respondent demonstrated extreme good faith in the situation.

u.s.c. § 820(i).

On balance I deem that a civil penalty of $1,000 is
appropriate.
Briefs
The Solicitor and respondent's counsel have filed detailed
briefs which have been most helpful in analyzing the record and
defining the issues in the case. I have reviewed and considered
these excellent briefs. However, to the extent they are
inconsistent with this decision, they are rejected.

776

Conclusions of Law
Consistent with the facts found true in the narrative
portions of this decision, the following conclusions of law are
made:
1. The Commission has jurisdiction to hear and determine
the issues raised in this case.
2. Respondent violated the safety standard published at 30
C.F.R. § 55.9-2 as it relates to the crane boom as alleged in
Citation 379902. That portion of the citation should be affirmed
and a civil penalty of $1,000 should be assessed.
3. Respondent did not violate the safety standard published
at 30 C.F.R. § 55.9-2 as it relates to the auxiliary transmission
as alleged in Citation 379902. That portion of the citation
should be vacated and all penalties proposed therefor should be
vacated.
Accordingly, I enter the following:
ORDER
1. Citation 379902 as it relates to the crane boom is
affirmed. A penalty of $1,000 is assessed.
2. Citation 379902 as it relates to the auxiliary
transmission is vacated. All penalties therefor are vacated.

Distribution:
Linda Bytof, Esq., and Marshall P. Salzman, Esq. con the Brief)
Office of the Solicitor, U.S. Department of Labor
11071 Federal Building, Box 36017, 450 Golden Gate Avenue
San Francisco, California 94102 (Certified Mail)
James Speer, Esq., and Stephen Pogson, Esq.
Evans, Kitchel & Jencks, 363 N. 1st Avenue
Phoenix, Arizona 85003
(Certified Mail)
Angel Rodriguez, President, Morenci Miners Union
Local 616 United Steelworkers
Clifton, Arizona 85533
(Certified Mail)
/blc

771

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

March 28, 1984

DISCRIMINATION PROCEEDING

DAVID ~. WILLIAMS,
Complainant
v.
SOUTHERN UTAH FUEL COMPANY,
Respondent

Docket No. WEST 83-122-D

.
.

MSHA Case No. DENV CD
83-15

ORDER OF DISMISSAL
Before:

Judge Merlin

On September 27, 1983, Complainant filed with this Commission a complaint of discrimination under section 105(c)
of the Federal Mine Safety and Health Act of 1977. An order
was issued on November 22, 1983, to Complainant so that he
might show cause why his complaint should not be dismissed
for failure to provide certain information. This order was
returned to the Commission as "unclaimed" on December 19,
1983.
On January 5, 1984, my law clerk attempted to telephone
Complainant in this regard but found the phone was disconnected. A second order to show cause was issued on January
6, 1984. This order was returned to the Commission on
January 13, 1984, marked "moved, left no addr~ss."
It must be assumed that Complainant has abandoned
intent to pursue this discrimination claim. The period
allowed for response has expired and no reply has been
received from Complainant nor has he been able to be reached.
Accordingly, the case is DISMISSED.

=----T~\---~

c._....,,_:

Paul Merlin
Chief Administrative Law Judge

778

Distributi.on:
Mr. David L. Williams, 169 East Orchard Street, #26, Odessa,
MO 64076
(Certified and Regular Mail)
Southern Utah Fuel Company, P.O. Box P, Salina, UT
(Certified Mail)

/nw

77ft

84654

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

MAR 29 1984
DISCRIMINATION PROCEEDING

RALPH W. FITZWATER,
Complainant

v.

Docket No. YORK 83-3-D
MSHA Case No. MORG CD 83-11

METTIKI COAL CORPORATION,
Respondent

DECISION
Before:

Judge Kennedy

This matter is before me on the parties' stipulation for
settlement and motion to withdraw the captioned discrimination
complaint. A review of the stipulation shows it is in accord
with the purposes and policy of the Act and agreeable to the
Complainant.
Accordingly, it is ORDERED that the settlement be, and
hereby is, APPROVED and made a part of the record of this
proceeding.
It is FURTHER ORDERE that the operator forthwith
pay the sum of $22,000 to Ralph
itzwater and that subject
to payment the captioned matter
ISMISSED.

Joseph B. Kennedy
Administrative Law Judge
Distribution:
Gorman E. Getty III, Esq., Attorney for Complainant, Carscaden,
Gilchrist & Getty, 110 Washington Street, Cumberland, MD 21502
(Certified Mail)
Timothy M. Biddle, Esq., and Thomas c. Means, Esq., Attorneys
for Mettiki Coal Corporation, Crowell & Moring, 1100 Connecticut
Avenue, N.W., Washington, DC 20036 (Certified Mail)
/fb

'786

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

MAR 30 1984
PONTIKI COAL CORPORATION,
Contestant-Respondent

CONTEST OF CITATION
AND COMPANION
CIVIL PENALTY PROCEEDING

v.

Docket No. KENT 83-181-R
Citation No. 2052746: 3/1/83

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

Docket No. KENT 83-262
A.C. No. 15-09571-03527
CONTEST OF ORDERS
AND COMPANION
CIVIL PENALTY PROCEEDINGS
Docket No. KENT 83-182-R
Order No. 2052747: 3/1/83
Docket No. KENT 83-183-R
Order No. 2052748: 3/1/83
:

Docket No. KENT 83-184-R
Order No. 2052750: 3/1/83
Docket No. KENT 83-256
A.C. No. 15-09571-03526

:

No. 2 Mine
DECISION·
Before:

Judge Kennedy

For twenty-four (24) production shifts worked during the
period February 3 through February 28, 1983, the operator,
Pontiki Coal Corporation, failed to make or record preshift

781

and onshift examinations of its main belt entries in flagrant
violation of section 303(d) (1), 30 C.F.R. ~ 75.303 of the Mine
Safety Law. 1/ On February 28, 1983, five MSHA inspectors
were sent to-inspect the mine for the existence of imminent
dangers and other violations of the law. They noted the
failure to report the results of preshift and onshift examinations on the beltlines. This should have alerted them to
conduct a physical examination of these areas. Instead, they
inspected only the area from the bottom of the slope entry to
the main beltline outby for 100 feet and then proceeded to the
track entry where they rode a personnel carrier to the end of
the beltline and then inspected another 300 to 500 feet of the
area inby the beltline.
As a result of this dereliction, the inspectors failed to
observe or cite the operator for what they later described as
an "enormous" accumulation of float coal dust, much of it in
suspension, amidst a chaotic scene of worn, stuck and damaged
rollers, worn and broken suspension brackets and bottom belts
lying on the floor in excessive accumulations of loose coal
and coal dust. These conditions, which existed for some
4,800 feet of the main beltline presented a condition of imminent danger of a disasterous fire or explosion in a mine
described by the operator's counsel as "one of the gassiest in
Eastern Kentucky."

1/ On March 9, 1984, the United States Court of Appeals for

the District of Columbia Circuit reversed the Commission's
decision of July 15, 1983, upholding a clearly erroneous decision by Judge Laurenson that issued July 1, 1981. Jones &
Laughlin Steel Corporation, 3 FMSHRC 1721 (ALJ, 1981), affirmed,
5 FMSHRCql209 (Comm 1 n, 1983); (Commissioner Lawson dissenting),
reversed at instance of United Mine Workers of America on
March 9, 1984,
F.2d
(D.C. Cir). The action by the
court of appeals, dispelled~ cloud of confusion cast over
the enforcement of 75.303 by the ALJ's obviously inept understanding of the plain language of the standard. In finding "no
basis for the Commission's senselessly narrow construction of
the" standard, the court held that the statute and its congruent
regulation require both preshift and onshift examinations of
belt entries. The court was especially concerned over the
hazards of fire and explosion to which miners are exposed when
operators fail to make preshift and onshift examinations of belt
entries "for several days."

782

The record strongly suggests that the reason the inspectors
were "persuaded" to tour around the.main beltline and ignore·
the "message" of the omitted preshift and onshift reports was
to permit the operator to run coal for one more shift and
management to "voluntarily" idle the mine and begin cleanup
operations. Indeed, the record shows that in return for the
"advance notice" of the "spot" inspection that did not begin in
earnest until March 1, 1983, the operator idled its production
at 3:30 p.m., on Monday, February 28 and began cleanup. The
record also shows that in return for the operator's "cooperation"
the inspectors expected to issue only 104(a) citations but were
so appalled by the conditions actually encountered they felt
compelled to issue unwarrantable failure citations and closure
orders. 2/
It is undisputed that the conditions found.significantly
and substantially contributed to the hazard of a mine fire or
explosion that could have killed all 21 miners and the five
inspectors in the mine on February 28 when the beltline was
energized. Nevertheless, the operator's vice president for
operations, Dennis Jackson, felt he had been double crossed or
"doubled barrelled" as he put it. For this reason, he abruptly
terminated the closeout conference and thereafter filed his
notice of contest of the citation, orders, and proposed
penalties. 3/
2/ Because of the stigma that attaches to the unwarrantable
failure citation, management begged the inspectors to issue
107(a) inuninent danger closure orders. In the response, the
lead inspector said "I explained that the conditions I found
were unwarrantable and significant and substantial, but did not
constitute an inuninent danger because there is no inunediate
source of ignition for the float dust. They offered to start
the belt to create an inuninent danger to keep off the unwarrantable failure sequence. Mr. Adams stated 'We'll start the belts
if that's what it takes to get a 107(a) imminent danger order
issued.' I replied that the belts were already under closure
orders" and therefore could not be started until the conditions
were abated. It seems clear that by this time the MSHA inspectors were no longer willing to turn a blind eye to the conditions
encountered. Apparently, there are limits beyond which inspectors
will not go to honor the administration's pledge of "cooperative
enforcement."
3/ The record of the closeout conference of March 1, 1983 states:
"During this closeout conference, Dennis Jackson, stated that
he felt we were being unfair to the company and that he felt we
had 'doubled barrelled' them in reference to the citations on
records of belt examinations and citations and orders written on
the conditions found in the belt line. Dennis left the conference
abruptly and we felt it was best to leave at this time."

783

Counsel for the operator readily admitted the conditions
cited existed 4/ but raised in mitigation of gravity and culpability the fact that (1) MSHA had condoned the conditions when
it inspected the mine on February 28 and (2) that the operator
had "voluntarily" idled the mine and set the production crews
to work cleaning up the mess. MSHA was sympathetic to these
pleas. The Assessment Office declined to specially assess any
of the violations choosing instead to treat them separately and
in isolation rather than as an intertwined and interconnected
whole. This meant that the matter did not have to be referred
to the off ice of special investigation for a determination of
whether responsible members of management should be prosecuted
for "knowingly" authorizing.these imminently dangerous and
hazardous conditions or criminally for "willfully" violating the
law.
In addition, the Assessment Office granted the operator a
gratuituous 30 percent discount for prompt abatement of the most
serious 75.400 violation.
This mystified everyone since the
conditions were so bad it took the operator-five working days to
cleanup, repair and rock dust the belt entries.
The record shows the MSHA inspectors expected the cleanup
to be completed by March 3 but when they returned on Thursday,
they found that while over 10 tons of highly combustible materials had been removed, the work was still only half done. The
cleanup was not completed and the orders terminated until the
following Monday, March 7, 1983.
The Assessment Office proposed initial penalties of $2,294
for the four violations charged or an average of $574 per violation. As a reward for the operator's challenge, the Solicitor
offered to settle the four violations at a discount of some
18 percent or a total of $1,900. ~
By the time this matter came on for a prehearing/settlement
conference on February 7, 1984, MSHA knew or should have known
that the operator had knowingly, if not willfully, created and
maintained an imminently hazardous condition in this mine for
over 2 weeks. Yet here is nothing in the record to suggest that
anyone in authority in MSHA ever took note of the seriousness of

4/ Indeed, while counsel said his client would not like it, he
felt enforcement action was badly needed at this mine and that
"it was the best thing that ever happened to this mine • • •
because they were operating pretty lax."
5/ Under MSHA's "cheaper by the dozen" policy, the thirty
occurrences observed were lumped into just four violations.
Thus, from the operator's standpoint, the one that counts, the
Solicitor was offering to settle the over two dozen violations
observed for $63.30 each, a bargain by any standard.

784

this case or sought to hold accountable those in positions of
authority in the Pikeville or Paintville, Kentucky offices of
MSHA for ignoring the conditions of wanton, if not criminal,
endangerment that existed on February 28, 1983. It was this
type of callous indifference and dereliction on the part of
the Pikeville district that led to the Scotia disaster in
which 26 miners and inspectors lost their lives on March 9
and 11, 1976.
Section 103(a) of the Mine Act prohibits giving advance
notice of any enforcement inspection and section llO(e) provides that "any person who gives advance notice of any inspection to be conducted under this Act shall, upon conviction, be
punished by a fine of not more than $1,000 or by imprisonment
of not more than six months, or both."
The true circumstances surrounding the truncated inspection
of the beltline on February 28 cry out for investigation and
explanation. The public is entitled to know what occurred on
that date that later led the operator's vice president for
operations to feel he had been "spun" or "double barrelled" by
MSHA. Was there a hidden quid pro quo for the abbreviated
inspection of the beltline""Oil"February 28, and, if so, what was
it? Was the abbreviated inspection of the beltline designed to
alert the operator to the real inspection that commenced the
next day? Or was MSHA innocent to the point of naivete? And,
if so, what is the public to conclude about MSHA's capacity to
serve as a sophisticated enforcement agency? I believe these
and other questions deserve an answer. I recommend, therefore,
that this matter be referred to the inspector general of the
Department of Labor for a full and true disclosure of the facts
relating to MSHA's failure to inspect the beltlines in question
on February 28, 1983.
I also recommend that this case be referred to the MSHA's
off ice of special investigations for a determination of liability on the part of the operator or any its employees under
sections llO(c) and/or (d) of the Act. I do this because I have
probable cause to believe the operator's vice president in
charge of operations knew or was aware of facts relating to the
existence and gravity of these violations on February 28, 1983,
and for some indefinite time prior thereto. This, ironically,
is the same individual whom counsel represented would take
disciplinary action against the mine foreman allegedly responsible for these violations. While I assume counsel was not
aware of the extent of Mr. Jackson's involvement at the time
this proposal was made, I cannot help but observe that if
Mr. Jackson took the disciplinary action claimed, it must have
been done with tongue-in-cheek.

785

Suffice it to say that after reviewing this matter at some
length, I refused the proffered basis for settlement, namely,
$1,900, and suggested $10,500. At the request of counsel, I
remitted $3,000 in return for a letter from the operator's
vice president in charge of operations, setting forth the disciplinary action taken against those allegedly responsible for
these violations. The letter was to be furnished in 10 days.
When it was not forthcoming, I contacted counsel who said he
would send it in immediately. After a further delay, all I
received was the attached letter, not from Mr. Jackson, but
from counsel.
It is time I terminated my consideration of this matter
and let it pass into the hands of those with the necessary
investigatory manpower and resources to complete the enforcement action.
I shall, however, follow the sequel with interest.
Accordingly, it is ORDERED that the settlement approved at
the prehearing/settlement conference of February 7, 1984, be,
and hereby is CONFIRMED, and that the settlement amount agreed
upon and paid, $7,500, be allocated equally among the four violations found.
It is FURTHER ORDERED that upon expiration of
the time for own motion or other review by the Commission, the
Commission take such action as it deems appropriate to refer
this matter to the Assistant Secretary for Mine Health and
Safety, Department of Labor for
h action as he deems
appropriate to initiate the two
estigations called for.

Distribution:
Nick Carter, Esq., Attorney at Law, Pontiki Coal Corporation,
181 N. Mill Street, No. 9, Lexington, KY 40507 (Certified Mail)
Darryl A. Stewart, Esq., Office of the Solicitor, U.S.
Department of Labor, 280 U.S. courthouse, 801 Broadway,
Nashville, TN 37203 (Certified Mail)
/fb

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MAPC01NC.

,·

Nick carter
SENIOR ATTORNEY

••

I

.•

I

:

;:j

I "

l l.

.:~ 11 : I 4

Hon. Joseph B. Kennedy
Administrative Law Judge
Federal Mine Safety and Health Review
2 Skyline, 10th Floor
5203 Leesburg Pike
Falls Church, Virginia 22041
Dear Judge Kennedy:
I am writing this letter at the request of Dennis Jackson, Vice President
of Operations of Pontiki Coal Corporation.

Mr. Jackson and I personally conferenced with Ronnie Goble, Mine Foreman
of Pontiki Coal Corporation, No. 2 Mine regarding the violations ori March
1, 1983 concerning the beltline conditions and preshift-onshift inspections.
At that conference Dennis Jackson expressed to Mr. Goble his extreme
displeasure with those conditions. Additionally, Mr. Goble was made aware
of the fact that if this situation reoccurs it may result in discipline
under Pontiki's progressive disciplinary procedurewhich includes discharge.
Additionally, as a result of your ruling in this matter our entire procedure
for handling violations has been changed. Briefly, all S & S violations are
conferenced between the safety department and legal staff and if the legal
staff, which is independent of mine management, determines that an individual
is responsible for the violationthey may conference with the individual and
indicate that conference in that individuals personnel file. I think this will
aid our safety efforts. It is because of the adoption of this policy and our
desire to connnunicate it to.you that this letter is arriving late.
I am having the draft in the amount of $7500.00 sent under seperate cover
from Tulsa, Oklahoma.
Sincerely,

r~w~·~

Nick Carter
NC/jp
cc: Ronnie Goble-Personnel File
Dennis Jackson

2385 HARROOSBURG ROAD. SUITE 8410. LEXINGTON. KENTUCKY 40~4. (6061 223·5882

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

MAR 3O1984

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 80-293-M
A.C. No. 02-00973-05003

v.
Summit Mine
SCORIA PRODUCTS BPANCH,
ULTRO I INC. I
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco, California,
for Petitioner;
{Respondent failed to appear).

Before:

Judge Vail
STATEMENT OF THE.CASE

This civil penalty proceeding was initiated by the Secretary
of Labor ("Secretary") against Scoria Products Branch, Ultro, Inc.,
("Scoria"), 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 8 alleged violations of certain mandatory safety
standards. After issuance on May 20, 1980, by the Secretary, of
his proposal for assessment of civil penalties, Urban Harenberg
answered by letter dated May 29, 1980 denying the Summit Mine
facility is a mine subject to the Federal Mine Health and Safety
Act in that its products do not enter into or affect commerce.
The first Notice of Hearing issued in this case se~ the
hearing date for February 22, 1982. It was continued at the
request of the Secretary due to the United States Congress temporarily suspending expenditures of funds in enforcement of these
particular cases. No objection was received from Scoria to this
continuance. Congress revoked this suspension.
Pursuant to a ·second Notice of Hearing dated August 15, 1983,
a hearing was convened on November 1, 1983, in Flagstaff, Arizona.
The Secretary's Counsel appeared with his witnesses prepared to
proceed. No one appeared on behalf of Scoria. Urban Harenberg
had answered all prior correspondence and represented himself
as owner and operator of Scoria.
I attempted to locate a telephone number for Harenberg or Scoria in the Flagstaff telephone

788

directory and surrounding areas, but was unsuccessful. After a
delay of thirty minutes, Counsel for the Secretary moved that he
be allowed to present the evidence in his case, which was granted.
On November 7, 1983, an Order to Respondent was sent to
Urban Harenberg (Scoria) to show cause why he should not be held
in default. A reply was received from Harenberg on November 25,
1983, advising that he forgot the date of the hearing and stating
that he was "74 years of age, the duration was too long, and I
simply forgot."
I find that Scoria is in default of the Notice of Hearing
in this case for failing to appear. Harenberg's admission that
he simply forgot does not warrant setting a new hearing date in
this case. He admitted receiving the notice and being in the
area on the date set.
I did not rely on some other person to
search for his telephone number that morning, but rather did it
myself. That I was unsuccessful in locating a listing is unfortunate; however, the fact remains that an effort was made.
Also, the Secretary's Counsel and witness appeared at the time
and on the date set, at considerable expense and time, as did the
Administrative Law Judge for the Federal Mine Safety and Health
Review Commission.
These considerations persuade me that the
reason for respondent's failure to attend is unjustified.
On July 11, 1979, MSHA inspector Virgil Wainscott inspected
a mine called Harenberg Pit No. 1. It was a small cinder mining
operation employing two men. One operated a front-end loader
with the second employee working around a conveyor belt, screener,
and hopper. This mine was located fourteen miles north of Flagstaff,
Arizona.
Inspector Wainscott issued the following citations in
which he alleged eight violations of mandatory safety standards:
Citation No. 383422 was issued for a violation of 30 C.F.R.
55.15-3 for failure by the miners to wear proper footwear. The
proposed penalty in this case was $16.00.
§

Citation No. 383423 was issued for a violation of 30 C.F.R.
55.15-2 for failure by the miners to wear suitable hard hats.
The proposed penalty in this case was $18.00.
§

Citation No. 383424 was issued for a violation of 30 C.F.R.
55.14-1 due to the return roller on the main stacker conveyor
not being guarded. The proposed penalty in this case was $28.00.
§

Citation No. 383425 was issued for a violation of 30 C.F.R.
55.14-1 due to the V belt drive on the roll crusher not being
guarded. The proposed penalty in this case was $28.00.
§

789

Citation No. 383426 was issued for a violation of 30 C.F.R.
§ 55.12-28 for failure to have tested and recorded resistance
reading of the.plant ground system. The proposed penalty in this
case was $32.00.
Citation No. 383427 was issued for a violation of 30 C.F.R.
55.14-1 due to the tail pulley on the main stacker conveyor
being unguarded. The proposed penalty in this case was $28.00.
§

Citation No. 383428 was issued for a violation of 30 C.F.R.
55.14-1 due to the V belt on the generator being unguarded.
The proposed penalty in this case was $28.00.
§

Citation No. 383429 was issued for a violation of 30 C.F.R.
55.12-32 due to a lack of a cover plate .on the electric motor
junction box for the return conveyor belt. The proposed penalty
for this violation was $24.00.
§

ISSUES
The issues in this proceeding are:
(1) whether respondent
has violated the provisions of the Act and implementing regulations
as alleged in the proposal for assessment of civil penalties filed
in this proceeding; and, if so, (2) the appropriate civil penalties
that should be assessed against the respondent for the alleged
violations based upon the criteria set forth in section llO(i) of
the Act.
·
In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the following
criteria:
(1) the operator's history of previous violations,
(2) the appropriateness of such penalty to the size of the business
of the operator, (3) whether the operator was negligent, (4) the
effect on the operator's ability to continue in business, (5) the
gravity of the violation, and (6) the demonstrated good faith of
the operator in attempting to achieve rapid compliance after
notification of the violation.
DISCUSSION
The evidence in this case shows that the plant cited here
had been in operation for over a year prior to the regular inspection on July 11, 1979. Inspector Wainscott testified that
Inspector Rayes Bender had been there in 1978 to explain the new
Mine Safety and Health Act of 1977 to the operator. Also,
Wainscott and his supervisor stopped three weeks prior to this
regular inspection and talked to Ray Harenberg, son of Urban
Harenberg, who was in charge of the mine. Again, an explanation
of the Act and guarding of equipment was given to Harenberg
(Transcript at 27, 28).

790

Wainscott testified that the miners required the protection of
hard hats and safety shoes when working around the plant as they
would be exposed to hazards from maintenance work and clean-up in
that area (Transcript at 22, 23). A hazard existed from the tail
pulley being unguarded, even though it was only two feet above
ground, to anyone cleaning up around that area (Transcript at 23).
~o test had been made of the ground system at the plant as the
operator had not obtained the equipment to do this. The obvious
hazard here was from not knowing whether it worked and possible
electrocution of a miner.. Similar electrical hazard existed with
the missing cover plate to the junction box (Transcript at 18).
I find from the testimony of Inspector Wainscott that the
violations alleged in the 8 citations he issued did exist as
described therein.
I further find that any defense raised by Urban Harenberg to
jurisdiction is misplaced. The evidence shows that the product
from this mine was sold for a commercial use. Whether the product
crossed the State of Arizona line is not controlling as this issue
has been considered and resolved in numerous cases concluding
that sale in intrastate still "affects commerce." Marshall v.
Meridith Mining Co. Inc., 483 F. Supp. 737 (1980), W.D. Penn.,
Marshall v. Kilgore, 478 F. Supp. 4 (E.D. Tenn. 1979).
Penalty
In regard to the mine operator cited in these 8 citations,
the Secretary has indicated that his evidence shows that this is
a small mining operation employing two miners. There is no prior
history of violations. However, on two earlier visits, the mine
inspectors had explained to the operator what the Act required for
the health and safety of the miners employed.
It was also explained that the cited operator had sold the
mine shortly after the inspection on July 11, 1979 and did not
do the work to abate these citations. The new owner performed
this work.
·
I find that the operator was negligent in allowing the violations contained in the above 8 citations to exist. Prior
notice was given on two occasions relative to what the Act
required. Apparently, these visits and explanations were ignored.
As to the gravity, I do not find this to be serious in these
8 citations. The evidence shows that the hazards described were
not always present as described in the case of the front-end
loader operator, not needing a hard hat or safety shoes until he
was in the area of the plant and doing maintenance and clean-up.
Also, the continuous ground system was found to be effective and not

791

a hazard. However, the requirement is that it must be tested and
a record kept of this.
On the basis of the foregoing findings and conclusions, I
conclude that the following penalties are reasonable and appropriate for the citations which have been affirmed in this case.
Penalty

Citation No.
383422
383423
383424
383425
383426
383427
383428
383429

$

Total

16.00
18.00
28.00
28.00
32.00
28.00
28.00
24.00

$ 202.00

ORDER
The respondent is ORDERED to pay civil penalties in the
amounts shown above, totaling $ 202.00 within forty (40) days of
the date of this decision and order, and upon receipt by MSHA,
this case is DISMISSED.

. ~,;_t, /

z-4,t__,

Virg+,f ~. Vail
Administrative Law Judge ·

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department
of Labor, 11071 Federal Building, P. O. Box 37017, San Francisco,
California 94102 (Certified Mail)
Mr. Urban Harenberg, Scoria Products, 2212 North East Street,
Flagstaff, Arizona 86001 (Certified Mail)

-trU.8. GOVERNMENT PRINTING OFFICE: l 9 8 i.

i. 2 l

56 9

3533

792