APRIL 1993

COMMISSION DECISIONS AND ORDERS
04-06-93
04-22-93
04-22-93
04-26-93
04-27-93
04-30-93

Energy West Mining company
Martin Sales & Processing
Steele Branch Mining
M.A.G. Incorporated
Clifford Meek v. ESSROC Corporation
Peabody Coal Company

WEST 91-83-R
WEVA 92-1008
WEVA 91-2077
WEVA 92-1021
LAKE 90-132-DM
KENT 91-179-R

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

587
595
597
604
606
628

KENT 92-380

Pg. 629

SE
92-181-D
SE
92-393
WEVA 92-986
WEVA 92-971-D
PENN 92-523-M
SE
92-335
WEST 90-363-RM
WEVA 92-746
CENT 92-219-M

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

VA

Pg. 694

ADMINISTRATIVE LAW JUDGE DECISIONS
04-02-93
04-02-93
04-05-93
04-05-93
04-06-93
04-07-93
04-07-93
04-09-93
04-09-93
04-09-93
04-12-93
04-13-93
04-13-93
04-16-93
04-16-93
04-20-93
04-22-93
04-26-93
04-29-93
04-29-93
04-30-93

Spurlock Mining/Sarah Ash~ey Mining Co.
Sec. Labor for Jerry Lee Dotson v. Lad
Mining Inc., et al. (Partial Dec.)
S & H Mining, Inc.
Oneida coal Company
Ernie Spaulding v. Madison Branch Mgmt.
Delaware Valley Landscape Inc.
Double "B" Mining, Inc.
Cyprus Tonopah Mining Corp.
Top Kat Mining, Inc.jW-P Coal Company
Arrow Crushed Stone, Inc.
Roy Farmer and others v. Island Creek
Coal Company
Sec. Labor for Samuel Coble v. Christian
Coal Corporation
Consolidation Coal Company
Little Rock
Company
Fred L. Peters Vo Twentymile Coal Co.
curtis Crick, et.al employed by
Island Creek Coal Company
Fred Knobel employed by FKC Incorporated
Peabody Coal Company
Varra Companies, Inc.
Sec. Labor on behalf of Gerald Sapunarich
v. Lehigh Portland Cement Co.
Consolidation Coal Company

91-56-C

634
662
669
672
674
678
680
682
691

KENT 93-1-D
PENN 92-771
CENT 92-202-M
WEST 92-311-D

Pg.
Pg.
Pg.
Pg.

697
699
701
704

KENT 92-548
WEST 92-375-M
KENT 92-1107-R
WEST 92-305-M

Pg.
Pg.
Pg.
Pg.

735
742
746
757

YORK 93-65-DM
WEVA 92-922

Pg. 766
Pg. 768

APRIL 1993

Review was granted in the following case during the month of April:
Labor, MSHA v. U.S. Steel Mining Company, Docket No.
(Judge Fauver, March 11, 1993)

Review was denied in the following cases during the month of April:
Jim Walter Resources, Inc. v. Secretary of Labor, MSHA, Docket No.
SE 92-249-R, etc.
(Judge Fauver, March 10, 1993)
of Labor, MSHA v. Peabody Coal Company, Docket No. KENT 92-748.
ick, March 9, 1993)

COMMISSION DECISIONS AND ORDERS

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

20006

April 6, 1993

ENERGY WEST MINING COMPANY

v.

Docket No. WEST 91-83-R

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

BEFORE:

Holen, Chairman, Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:

This contest proceeding ar~s~ng under the Federal Mine Safety and Health
Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or "Act"), presents the
question of whether Energy West Mining Company ("Energy West") was required to
report to the Department of Labor's Mine Safety and Health Administration
("MSHA"), pursuant to 30 C.F.R. § 50.20, an injury that occurred to a miner as
he was driving his personal car on mine property on his way to work. 1
Commission Administrative Law Judge Michael A. Lasher, Jr., upheld the

1

The cited regulation provides, in pertinent part:
§ 50.20 Preparation and submission of MSHA Report Form
7000-l -- Mine Accident, Injury, and Illness Report.

(a) Each operator shall maintain at the mine office a
supply of MSHA Mine Accident, Injury, and Illness Report
Form 7000-1....
Each operator shall report each
accident, occupational injury, or occupational illness
at the mine. The principal officer in charge of health
and safety at the mine or the supervisor of the mine
area in which an accident or occupational injury occurs,
or an occupational illness may have originated, shall
complete or review the form in accordance with the
instructions and criteria in §§ 50.20-1 through 50.207 .... The operator shall mail completed forms to MSHA
within
ten working
days
after
an
accident
or
occupational injury occurs or an occupational illness is
diagnosed ....

587

citation. 13 FMSHRC 1164 (July 199l)(ALJ).
we affirm the judge's decision.

For the reasons set forth below,

I.

Factual and Procedural Background
The parties in this proceeding stipulated to all the essential facts.
The stipulations pertinent on review are as follows:
4. Citation No. 3413924 (Joint Exh. 1.) was issued on
November 1, 1990 by Inspector Robert L. Huggins,
alleging that Energy West violated 30 C.F.R. § 50.20
by failing to report an injury sustained by employee
Donald Hammond in an automobile accident on mine
property on Wednesday, October 3, 1990.
6. At the time of the accident, Mr. Hammond was
driving his own persona:l car on his way to work. He
was injured when, after passing through the gate onto
company property and driving uphill towards the
parking lot, the engine of his car stalled and his
brakes failed. The car rolled backwards down the road
approximately 150 feet
Joint Exhs. 3, 4) and
turned on its side into a drainage ditch on the side
of the road (see Joint Exhs. 5, 6).
7. The accident occurred at 7:30a.m. as Mr. Hammond
was on his way to report for his 8:00 a.m. shift at
the mine. Mr. Hammond sustained a strained neck.
8. After the accident, Mr. Hammond did not report to
the 8:00 a.m. shift on Wednesday, October 3, 1990. He
returned to work on Monday, October 8, 1990.
9. At the time of the accident and at all times
relevant to the subject Citation, the road was paved,
in good repair v7ith guard rails on one side and a
hillside on the other, and in substantially the same
condition as the publicly maintained road leading to
the entrance of the company property.
10. The accident occurred in daylight during good
weather conditions and clear visibility.
11. The condition of the road was not the cause of
the accident.
12. Inspector Huggins was present at the Deer Creek
Mine on the day of the accident and visited the
accident site. He asked Deer Creek Safety Engineer
Kevin Tuttle whether Energy West planned to report the

588

~nJury to the Mine Safety and Health Administration.
In response, Mr. Tuttle stated his belief that the
injury was not reportable, because it occurred while
Mr. Hammond was on his way to work, not while he was
on the job, and involved Mr. Hammond's personally
owned vehicle. Inspector Huggins informed Mr. Tuttle
that he would check to see whether MSHA thought the
injury was reportable.

13. Shortly thereafter, Inspector Huggins informed
Mr. Tuttle that the injury was reportable. On
November 1, 1990, Inspector Huggins issued the subject
Citation when no accident report was forthcoming. To
abate the alleged violation, Mr. Tuttle then completed
MSHA Form 7000-1 (Joint Exh. 2) on November 1, 1990
and mailed it to the MSHA Health and Safety Analysis
Center, and Inspector Huggins terminated the Citation.
The citation charged Energy West with a non-significant and substantial
violation of section 50.20 and, as modified,
high negligence. 2 The
Secretary has not alleged that Energy West was responsible for, or contributed
to, the conditions that lead to Hammond's injury.
Energy West filed a notice of contest of the citation and the matter was
submitted to Judge Lasher on stipulated facts. After noting that Hammond's
injury was not the result of an "accident," as that term is defined by section
50.2(h), the judge evaluated whether Hammond's injury fit within the
definition of "occupational injury" as defined by section 50.2(e). 3 The
judge determined that the stipulations established that Hammond was a miner
who, while at the mine, suffered an injury resulting in his inability to
perform all his job duties. 13 FMSHRC at 1171. The judge concluded, based on
these undisputed facts, that Hammond suffered an "occupational injury" as
2

The citation

the following violation:

A[n] accident occurred to Donald Hammond on 10-3-90 and
a 7000-1
form was not submitted to the MSHA
Health and
Analysis Center in Denver, Colorado.
Mr. Hammond was involved in an automobile accident that
occurred on mine property and Mr. Hammond failed to
report to his next shift of work. Mr. Hammond returned
to work on 10 8-90.
3

Section 50.2(e) provides:
Occupational injury means any ~n]ury to a miner which
occurs at a mine for which medical treatment is
administered, or which results in death or loss of
consciousness, inability to perform all job duties on
any day after an injury, temporary assignment to other
duties, or transfer to another job.

589

defined in section 50.2(e) and that Energy West was required to report this
occupational injury to MSHA pursuant to section 50.20. He rejected Energy
West's contention that the injury was not reportable because of the lack of a
"causal nexus" to Hammond's work at the mine. The judge based this conclusion
on the Commission's decision in Freeman United Coal Mining Co., 6 FMSHRC 1577
(July 1984). 13 FMSHRC at 1172. The Commission granted Energy West's
Petition for Discretionary Review and permitted the American Mining Congress
("AMC") to file an amicus curiae brief.
II.

Disposition of the Issues
The Secretary interprets section 50.20 to require each mine operator to
report to MSHA all injuries that occur at the operator's mine site, including
injuries that are not directly work-related. Energy West 4 objects to that
approach and argues that, since it is undisputed that Hammond's injury was not
work-related, reporting the injury to MSHA was not required.
Energy West argues that the Secretary's interpretation of the injury
reporting provisions exceeds the scope of the Mine Act because his
interpretation requires mine operators to report non-work-related injuries to
MSHA under section 50.20. Energy West also argues that the Secretary's
interpretation of the regulation is unreasonable because it conflicts with the
overall purposes of Part 50 and leads MSHA to calculate inherently flawed
rates of injury occurrence ("incident rates"). It argues that, the
information gathering provisions of Part 50 were developed so that incident
rates could be calculated by the Secretary pursuant to section 50.1. It
maintains that, by requiring mine operators to report non-work-related
injuries that occur before or after the miners' shifts, while prohibiting
operators from including such off-shift time as part of the total number of
employee hours worked under section 50.30-l(g)(3), MSHA calculates an incident
rate under section 50.1 that is "flawed and untrustworthy for its intended
purpose." AMC Br. lO.
Energy West relies heavily on the regulatory history of Part 50 to
support its position. It argues that when the Department of the Interior
("Interior") consolidated injury reporting in Part 50 it did not "sever the
existing linkage between work-related injuries and the filing of reports."
AMC Br. 16. It argues that the preambles to the proposed and final rule are
devoid of any statement or indication" that "a dramatic substantive change"
was being made "that would require, for the first time, the reporting of nonwork-related, as well as work-related, injuries." AMC Br. 17. Energy West
points to language in the preamble to the final rule stating that MSHA "seeks
data only respecting injuries whose occurrence rate it can affect and
diminish." E.W. Br. 21; AMC Br. 18. Energy West contends that the Commission
should reconsider its decision in Freeman.

4

Unless otherwise noted, the arguments of the AMG are included in our
discussion of Energy West's position.

590

In Freeman, the Commission concluded that section 50.20 requires
operators to report to MSHA certain injuries that occur to miners at mines.
6 FMSHRC at 1579. The Commission held that "sections 50.2(e) and 50.20(a),
when read together, require the reporting of an injury if the injury -- a hurt
or damage to a miner -- occurs at a mine and if it results in any of the
specified serious consequences to the miner." 5 Id. The Commission
determined that the Secretary's regulations "do not require a showing of a
causal nexus" between the injury and the miner's work.
Id. The Commission
also indicated that the definition of occupational injury in section 50.2(e)
and the regulatory history of that section "control in construing the related
reporting requirement of section 50.20(a)." Id.
Finally, the Commission
concluded that the Secretary's interpretation of section 50.20(a) "is
consistent with and reasonably related to the statutory provisions under which
it was promulgated." 6 FMSHRC at 1580.
In Consolidation Coal Co., 14 FMSHRC 956 (June 1992)("Consol"), the
Commission examined MSHA's calculation of incident rates under Part 50. 6 The
operator in that case had reported to MSHA the total amount of time that it
estimated miners were present at its mine, not simply the hours worked.
It
argued that MSHA's Part 50 reporting requirements, as interpreted by the
Secretary, leads MSHA to calculate inaccurate incident rates.
The Commission
determined that mine operators are required to report to MSHA, as "total
employee-hours worked" under section 50.30-l(g)(3), the number of employeehours reflected in the operators' payroll records and that operators are not
permitted to add to those hours the time miners spend on mine property before
and after their shifts.
14 FMSHRC at 966 68.
The Commission noted that the
"incident rates calculated by MSHA are flawed because the injury and accident
information that mine operators are required to submit does not correlate with
the data that mine operators must report for employee hours worked." 14
FMSHRC at 968. The Commission held, however, that any flaws in MSHA's
calculation of incident rates did not excuse Consol's violation of the
regulation:
Incident rates provide a general picture of the safety
record of a mine operator. The assertion that MSHA's
method of calculating incident rates is less than
perfect or that there may be better methods does not

5

As set forth in section 50.2(e), an injury with serious consequences is
one "for which medical treatment is administered, or which results in death or
loss of consciousness, inability to perform all job duties on any day after an
injury, temporary assignment to other duties, or transfer to another job."
Hammond's injuries resulted in at least one of these serious consequences because
he was unable to work on the day after the accident.
Stip. 8.
6

MSHA calculates the incident rate for a mine by dividing the total number
of occupational injuries, occupational illnesses and accidents reported in a
calendar quarter (multiplied by a constant: 200,000) by the total number of
employee-hours worked during the quarter.
30 C.F.R. § 50.1; Consol, 14 FMSHRC
at 959.

591

excuse mine operators from complying with the data
submission requirements of Part 50.
14 FMSHRC at 969.
We have reviewed again the relevant prov1s1ons of Part 50 and the
regulatory history and we decline to overrule or modify our holding in Freeman
as urged by Energy West. 7 We hold that, despite the fact that the regulation
requires the reporting of injuries that are not directly work-related, MSHA's
injury reporting requirements in section 50.20(a) do not exceed the
Secretary's broad authority to obtain from mine operators information relating
to safety conditions and the causes of accidents. See section 103 of the Mine
Act, 30 U.S.C. § 813.
As stated in Consol, the Commission's task is not to devise the best
method of monitoring injuries sustained by miners but to determine whether the
Secretary's method, as implemented by the regulations, is reasonable. 14
FMSHRC at 969. The Secretary uses a mine site test for reportable injuries.
As a consequence, a work-related inj-ury that occurs off mine property is not
reportable, while a non-work-related injury that occurs on mine property is
reportable. While such reporting requirements do not focus precisely on
injuries that MSHA may seek to diminish, the requirements are not so arbitrary
as to be unreasonable. 6 The Secretary's geographic approach is consistent
with the jurisdiction conferred upon him under section 3(h)(l) of the Mine
Act, 30 U.S.C. § 802(h)(l), which defines "coal or other mine" in geographic
terms. 9 Moreover, it is not unreasonable for the Secretary to require the
7

The statement in the preamble to the final rule, that MSHA sought only
data concerning "injuries whose occurrence rate it can affect and diminish,"
relates to Interior's rejection of a suggestion that work-related injuries that
occur off mine property should be reported. 42 Fed. Reg. 65, 534 (December 30,
1977).
In response to that comment, the Secretary stated that he did not have
jurisdiction over injuries that occur off mine property "regardless of whether
the injured miner was engaged in his employer's business at the time of the
injury." Id. Thus, the statement in the preamble relied on by Energy West does
not suggest that the Secretary intended to exempt mine operators from reporting
non-work-related injuries that occur on mine property.
8

The Secretary argues that reportable, non-work-related 1nJuries "are rare
events" that occur infrequently. S. Br. 34. We note that Energy West did not
present any evidence to show that it has experienced a significant number of such
injuries at its mine.
9

Section 3(h)(l) of the Mine Act states in pertinent part:
"coal or other mine" means (A) an area of land from
which minerals are extracted ... , (B) private ways and
roads appurtenant to such area, and (C) lands,
excavations, underground passageways, shafts, slopes,
tunnels and workings, structures, facilities, equipment,
(continued ... )

592

reporting of all designated injuries at mines so that MSHA can decide whether
an investigation of the injury is necessary or whether regulatory action is
indicated. 10 The cause of an injury may not be obvious and MSHA may need to
evaluate whether it should seek to reduce the risk of similar injuries. In
section 103 of the Act, 30 U.S.C. § 813, Congress granted to the Secretary
broad investigation and information gathering authority. MSHA would abdicate
its responsibilities under the Act were it to rely solely on the mine
operator's determinations, as urged by Energy West, that an injury was not
work-related.
We have determined that the Secretary's requirement that injuries
occurring at mines be reported to MSHA is reasonable, in part, because such
injury reports enable MSHA to obtain a comprehensive overview of the safety
and health conditions at each mine. As in Consol, however, we are concerned
that the goal of improving mine safety can be unnecessarily compromised when
MSHA's injury statistics are inaccurate. In our view, the purposes of the
Mine Act would be better served if the Secretary, in calculating incident
rates, were to exclude injuries that are not work-related.

9 (, . . continued)

machines,
tools,
or
other
property
including
impoundments, retention dams, and tailings ponds, on the
surface or underground, used in, or to be used in, or
resulting from, the work of extracting such minerals
from their natural deposits ....
10

If an operator believes that an injury is not work-related, it may state
its belief in the report submitted to MSHA.
Section 9 of the reporting form
(MSHA Form 7000-1) requires an operator to "Describe Fully the Conditions
Contributing to the Accident/Injury/Illness."
The Secretary's criteria at
section 50.20-6(a)(3) direct operators to "[d]escribe what happened and the
reasons therefore" and to "clearly specify the actual cause or causes of the ...
injury."

593

III.

Conclusion
For the foregoing reasons, the judge's decision is affirmed.

Arlene Holen, Chairman

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

Distribution
Thomas C" Heans,
J. Michael Klise, Esq.
Crowell & Moring
1001 Pennsylvania Ave., N.W.
Washington, D.C. 20004
Jerald S. Feingold, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
James A. Lastowka, Esq.
McDermott, Will & Emery
1850 K Street, N.W., Suite 500
Washington, D.C. 20006
for Amicus, American Mining Congress
Administrative Law Judge Michael A. Lasher, Jr.
Federal Hine Safety & Health Review Commission
280 Federal Building
1244 Speer Blvd.
Denver, Colorado 80204

594

~

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

20006

April 22, 1993

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

Docket Nos. WEVA 92-1008
WEVA 92-1096
WEVA 92-1097
WEVA 92-1108

v.

MARTIN SALES & PROCESSING
BEFORE:

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

BY THE COMMISSION:

In these civil penalty proceedings ar~s~ng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"),
Commission Administrative Law Judge George Koutras issued Summary Default
Decisions ("default decision") on March 29, 1993, finding respondent Martin
Sales & Processing ("Martin") in default for failing to respond to discovery
requests served by the Secretary of Labor and to the judge's February 25,
1993, order to show cause. The judge assessed civil penalties of $32,166 as
proposed by the Secretary. For the reasons that follow, we vacate the default
order and remand this case for further proceedings.
The judge's jurisdiction over this case terminated when his decision was
issued on March 29, 1993. 29 C.F.R. § 2700.65(c). On April 8, 1993, the
judge received from Martin's attorney a Motion to Alter, Vacate, or Amend the
default decision. Martin asserts that it had timely filed a response, dated
March 8, 1993, to the judge's show cause order. Martin does not assert that
it mailed the response by certified or registered mail, return receipt
requested, and the Commission's records do not indicate receipt of Martin's
response to the show cause order.
Under the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought by filing a petition for discretionary review
with the Commission within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29
C.F.R. § 2700.70(a). We will treat Martin's motion as a timely filed petition
for discretionary review of the decision. See, ~. Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988).
It appears that Martin may have attempted to respond to the judge's show
cause order. The Commission has noted "under appropriate circumstances a

595

genuine problem in communication or with the mail may justify relief from
default."
10 FMSHRC at 1131, quoting~.~.=-·='-', 9 FMSHRC 989, 990 (June 1987). We are unable, however, to evaluate the
merits of Martin's explanation on the basis of the present record. We will
afford Martin the opportunity to present its position to the judge, who shall
determine whether default is warranted.
Accordingly, we grant Martin's petition for discretionary review, vacate
the judge's default decision, and remand this matter for proceedings
consistent with this order.

1

Arlene Holen , Chairman

L. Clair Nelson, Commissioner

Distribution

J. Thomas Hardin, Esq.
Hardin Law Offices
PoO. Box 1416
Inez, Kentucky 41224
Winford Davis, President
Hartin Sales & Processing
P .0. Box 728
Kermit, WV 25674
Carol B. Feinberg,
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge George A. Koutras
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, Virginia 22041

596

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

20006

April 22, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. WEVA 91-2077
WEVA 91-2123

STEELE BRANCH MINING

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety and
Health Act of 1977, 30 U.S.G. § 801 et seq. (l988)("Mine Act" or "Act"). It
involves a dispute between the Secretary of Labor and Steele Branch Mining
("Steele Branch") regarding two citations alleging violations of 30 C.F.R.
§§ 77.404(a) 1 and 50.ll(b). 2 Following an evidentiary hearing, Commission
30 C.F.R. § 77.404 provides, in relevant part:
(a) J>iobile and stationary machinery and equipment
shall be maintained in safe operating condition and
machinery or equipment in unsafe condition shall be
removed from service immediately.
2

30 C.F.R. § 50.11 provides, in relevant part:

*

*

(b) Each operator of a mine shall investigate each
accident and each occupational injury at the mine. Each
operator of a mine shall develop a report of each
investigation.
No operator may use Form 7000-1 as a
report, except that an operator of a mine at which fewer
than twenty miners are employed may, with respect to
that mine, use Form 7000-1 as an investigation report
respecting an occupational injury not related to an
accident. No operator may use an investigation or an
investigation report conducted or prepared by MSHA to

597

Administrative Law Judge Avram Weisberger found that Steele Branch violated
both provisions and that its violation of section 77.404(a) was significant
and substantial ("S&S"). 3 14 FMSHRC 871 (May 1992)(ALJ). The Commission
granted Steele Branch's petition for discretionary review, which raises the
following issues: (l) whether the operator violated section 77.404(a) because
270 to 300 degrees of slack existed in the steering wheel of a road grader,
measured while the grader was not in operation; and (2) whether the operator
violated section 50.ll(b) when it did not promptly submit an accident
investigation report upon the request of the Department of Labor's Mine Safety
and Health Administration ("MSHA"). For the reasons set forth herein, we
affirm the judge's conclusion on the first issue and reverse his conclusion on
the second.
I.

Factual and Procedural Background
Steele Branch, which is owned by the Geupel Construction Company,
operates a surface coal mine in Logan County, West Virginia. On April 23,
1991, MSHA inspected Steele Branch following a fatal accident. Rayburn
Browning operated the No. 9 road grader used to maintain a haulage road at the
mine. The grader's engine had stalled on a hill and the grader began rolling
backwards. Unable to control the vehicle, Browning jumped off, and the grader
ran over him.
MSHA Inspector Donald Mills inspected the grader and observed that there
was between 270 and 300 degrees of slack in the steering wheel. The inspector
did not test the slack while the grader was operating. Inspector Mills issued
a citation, alleging a violation of section 77.404(a). The citation stated
that the road grader "was not maintained in a safe operating condition[] in
that excessive slack was present at the steering wheel .... " 4 The inspector
determined that the violation was S&S.

comply with this paragraph. An operator shall submit a
copy of any investigation report to MSHA at its
request ....
3

The S&S terminology is taken from section 104(d)(l) of the Act, 30
U.S.C. § 8l!+(d)(l), which distinguishes as more serious in nature any violation
that "could significantly and substantially contribute to the cause and effect
of a
mine safety or health hazard .... "
''
This citation also alleged that the grader's primary fuel filter was
not properly installed. The judge determined that the Secretary had failed to
establish that the inoperative primary filter violated the safety standard
because the secondary filters on the vehicle would have adequately "screened and
trapped" any contaminants and that, as a consequence, the grader was in safe
operating condition as to its fuel-filtering system. 14 FMSHRC at 872-73. The
Secretary did not seek review of this finding.

59 8

That same day, another MSHA Inspector, James E. Davis, requested that
Steele Branch prepare an investigation report of the accident, as required by
section 50.ll(b). On April 24 and 26, Inspector Davis reiterated his request.
On April 29, he spoke with Mark Potnick, the Steele Branch official in charge
of safety. Potnick described to Davis the preventive measures that Steele
Branch planned to take to avoid such an accident in the future. MSHA made
follow-up requests for the written report on May 8 and 9.
On May 13, MSHA cited Steele Branch, alleging an S&S violation of
section 50.ll(b), for its failure to submit an accident investigation report.
The citation stated:
During and after the investigation of a fatal accident
at this mine several requests were made to the
operator for a copy of the required Company
investigation report and a description of steps taken
to prevent a similar occurrence in the future. The
requests were made to the mine management on April 23,
24, 26, May 8 and 9, 1991. The requests have not been
complied with as required by 30 C.F.R. § 50.ll(b).
MSHA proposed a special assessment of $500 for the operator's failure to
provide the report. Steele Branch submitted the accident report on May 16.
The report reiterated the measures described by Potnick to Davis to prevent a
recurrence of the accident.
Steele Branch's contests of the citations were consolidated for hearing.
In concluding that Steele Branch violated section 77.404(a) and that the
violation was S&S, the judge found that the grader in question was not in safe
operating condition due to excessive play in the steering wheel. 14 FMSHRC at
874. In concluding that Steele Branch violated section SO.ll(b), the judge
found that it failed to submit an investigation report in spite of numerous
requests by MSHA. 14 FMSHRC at 875-76. The judge concluded, however, that
the latter violation was not S&S. As a consequence, he assessed a penalty of
$10, rather than $500 proposed by the Secretary. 14 FMSHRC at 877.

II.

A.
Steele Branch asserts that, because the grader was equipped with
"hydraulic steering," slack is always present when its engine is off and that
such slack is eliminated when the grader is running. Thus, MSHA's inspection
of the steering wheel was deficient because the grader was not operated during
the inspection. Steele Branch relies primarily on the testimony of Edward
Casto, an independent mechanic who operated the grader within a few hours
after the accident. Casto testified that he noticed "some play, but not any
great amount" when he operated the grader up a hill. Tr. 261, 262. Steele
Branch also points out that Wiley Queen, its head mechanic, drove the grader
sometime prior to the accident and did not perceive excess slack. After the

599

accident, Queen replaced all loose parts in the steering and testified as
follows: "To me it wasn't that loose ... to cause it to be unsafe to
operate." Tr. 215. 5
The judge concluded that the steering wheel exhibited approximately 270
to 300 degrees of slack when the engine was off and that such slack was
"clearly evidence of play in the steering wheel to a more than non-significant
degree when the engine is on." 14 FMSHRC at 874. The judge determined that
Steel Branch violated 30 C.F.R. § 77.404(a) based on excessive slack in the
steering, and on the fact that the grader was being operated on a road
containing curves and an eight to nine percent grade. Id.
The Commission is bound by the Mine Act to apply the substantial
evidence test when reviewing an administrative law judge's decision. 30
U.S.C. § 823(d)(2)(A)(ii)(I). The term "substantial evidence" means "such
relevant evidence as a reasonable mind might accept as adequate to support [a]
conclusion." See,~. Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159, 2163
(November 1989) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). We are guided by the settle,q principle that, in reviewing the whole
record, an appellate tribunal must also consider anything that "fairly
detracts" from the weight of the evidence that may be considered as supporting
a challenged finding. Uniyersal Camera Corp. v. NLRB, 340 U.S. 474, 488
(1951). Considering the record before us, we conclude that substantial
evidence supports the judge's determination that the steering wheel exhibited
excessive play, thereby making the grader unsafe to operate.
Inspector Mills' testimony that, on the day of the accident, slack of
between 270 and 300 degrees existed in the steering wheel of the road grader
was uncontradicted. Tr. 87. William Roberts, Steele Branch's equipment
manager, testified that steering play when the engine is off should amount to
no more than 120 degrees. Tr. 378, 394. He further testified that 270
degrees of slack in the steering mechanism when the grader was off would be
considered "excess
" Tr 395. Inspector Hills also testified that the
haulage road was hilly with narrow curves and that excessive slack could delay
movement of the wheels toward the direction turned and, consequently, result
in an accident. Tr. 88-91.
5
Steele Branch also argues that the deceased miner had an excellent
safety record and, if excess slack in fact existed, he would have noticed it
during his pre-shift equipment inspection. Steele Branch further argues that,
to the extent that Browning failed to adequately inspect the grader, his
negligence should not be imputed to Steele Branch.
The latter argument is
vlithout merit. The Commission has held repeatedly that an operator is liable for
violations of mandatory standards committed by its employees. Asarco, Inc., 8
FMSHRC 1632, 1634 (November 1986); Southern Ohio Coal Co., 4 FMSHRC 1459, 1462
(August 1982). In any event, the judge determined that Steele Branch's evidence
that Browning was a careful employee who would not have operated the grader if
it was unsafe was "insufficient to contradict or impeach the specific testimony
of Mill [ s] that, on April 23, 1990, when he tested the steering there was between
270 to 300 degrees of play." 14 FMSHRG at 874.

600

In addition to challenging the evidentiary support to the judge's
finding of a violation of the regulation, Steele Branch contends that the
regulation addresses only "the condition of the ... vehicle while it is
operating." SB Br. 8, 10. Steele Branch notes that the grader was not in
operation when Mills inspected it. There is no dispute, however, that the
grader was operating at the time of the accident and Steele Branch has not
asserted that the slack detected by MSHA was caused by the accident. The
judge concluded, and we have affirmed as supported by substantial evidence,
that "play in the steering wheel of approximately 270 degrees when the engine
is off, is clearly evidence of play in the steering wheel to a more than nonsignificant degree when the engine is on." 14 FMSHRC at 874.
B.

Violation of Section SO.ll(b)

Steele Branch argues that the regulation does not set a specific time
for the submission of an accident investigation report. It maintains that, as
a consequence, reports must be submitted within a reasonable time, and that
its submission met this requirement. We agree, and reverse the judge's
finding of a violation.
The judge found that Steele Branch violated that part of section
SO.ll(b) requiring operators to "submit a copy of any investigation report to
MSHA at its request." The evidence established that MSHA had made numerous
requests for a report. Although the judge credited Steele Branch's evidence
that the "delay" was reasonable under the circumstances, he determined that
Steele Branch's evidence was "insufficient to rebut the Petitioner's case that
by [the date of the citation], Respondent had failed to submit a copy of its
investigation report in spite of numerous requests by MSHA." 14 FMSHRC at
876. Nevertheless, because the judge found that Steele Branch's delay in
submitting the report was reasonable, he held that Steele Branch was not
negligent and reduced the penalty from $500 to $10. 14 FMSHRC at 876-77.
Section 50.11(b) requires operators to investigate all accidents and to
"develop a report" of each investigation. A copy of the report must be
submitted "to MSHA at its request," but no period of time is specified in the
regulation, or indicated in the regulatory history or in MSI!A's policy guide.
The Commission has not previously addressed the issue of the time allowed for
submission of a report pursuant to this standard. Under the judge's approach,
an operator violates the regulation if it fails to submit an investigation
report upon MSI!A's demand, even if there are legitimate reasons why the report
has not been completed and, therefore, is not ready for submission. Under
this interpretation, operators could be forced to prepare reports hastily in
order to comply with the regulation, to the detriment of accuracy and
thoroughness.
Where a standard is silent as to the period of time required for
compliance, the Commission has imputed a reasonable time. In Penn Allegh Coal
3 FMSHRC 2767, 2771 (December 1981), the Commission noted that it is
implicit in a roof control plan that the operator has a reasonable time to
file a plan. In
5 FMSHRC 1010, 1019 (June 1983), the
Commission imputed a reasonable time for the operator to submit a revised
engineering plan. Further, in Old Ben Coal Co., 3 FMSHRC 608, 610 11 (March

601

1981), the Commission interpreted a standard requLrLng a foreman to
countersign a weekly hazardous conditions report as allowing a reasonable
period for such signing.
Consistent with this approach, we conclude that section 50.ll(b)
requires operators to submit an accident investigation report within a
reasonable period of time after MSHA's request, taking into consideration the
specific circumstances. Factors pertinent to whether the operator complied
with the section within a reasonable time may include the volume and
complexity of information to be reviewed, and the circumstances surrounding
the preparation and submission of the report. Such an approach accords with
the purpose of the regulation, which is to "ensure that operators are in fact
investigating accidents and injuries and are engaged in constant upgrading of
health and safety practices." 42 Fed. Reg. 65534 (December 30, 1977).
We believe the evidence shows that Steele Branch responded in a
reasonably timely manner in submitting its report. Inspector Davis issued the
citation just 14 working days after the accident and 10 working days after
MSHA completed its accident inspection. The judge found that Steele Branch
had orally informed MSHA, six days after the accident, of the critical portion
of the investigation report, i.e., 'the preventive steps Steele Branch would
take to avoid a similar accident. 14 FMSHRC at 876-77.
Additionally, he
found that the operator acted in good faith in submitting the report in midMay. He further found that Steele Branch's delay was caused by its thorough
compilation of the facts relating to the accident, by its company policy
requiring supervisory review of such reports and by a death in the family of
the employee preparing the report. 14 FMSHRC at 876. The judge determined
that Steele Branch's failure to submit the report by May 13 was justified
under the circumstances. He held that Steele Branch was not negligent and he
reduced the penalty from $500 to $10. 14 FMSHRC at 876-77. 6 We rely upon
the judge's findings of fact in reaching the conclusion that Steele Branch
submitted its report within a reasonable time following MSHA's request and,
therefore did not violate the regulation.

6

We note that MSHA's accident investigation report of the Browning
accident was not completed until September 1991, four months after Steele Branch
submitted its report. Tr. 62.

602

III.

Conclusion
For the foregoing reasons, we affirm the judge's decision with regard to
30 C.F.R. § 77.404(a), but reverse his conclusion that Steele Branch violated
30 C.F.R. § SO.ll(b).

Arlene Holen, Chairman

~-L-u-~/tcL, ,
Richard V. Backley, Commissioner[/

J

L. Clair Nelson, Commissioner

Distribution
Roger L. Saba, Esq.
Schottenstein, Zox & Dunn
41 South High Street
Suite 2600
Columbus, OH 43215
Susan E. Long, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Administrative Law Judge Avram Weisberger
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, Suite 1000
Falls Church, VA 22041

603

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

20006

April 26, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket Nos. WEVA 92-1021
WEVA 92-1046
WEVA 92-1047
WEVA 92-1048
WEVA 92-1072
WEVA 92-1073

M.A.G., INC.

BEFORE:

Holen, Chairman; Backley, Doyle and Nelson, Commissioners

ORDER
BY THE COMMISSION:
In these civil penalty proceedings arLsLng under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)(the "Mine Act"),
Commission Chief Administrative Law Judge Paul Merlin issued six Orders of
Default on March 17, 1993, finding respondent M.A.G., Inc. ("M.A.G.") in
default for failing to answer the civil penalty proposal of the Secretary of
Labor ("Secretary") and the judge's December 10, 1992, Order to Show Cause.
The judge assessed civil penalties of $14,370 as proposed by the Secretary.
For the reasons that follow, we vacate the default orders and remand the cases
for further proceedings.
The judge's jurisdiction over these cases terminated when his decision
was issued on March 17, 1993. 29 C.F.R. § 2700.65(c). On April 15, 1993,
Nichael Stanley, President of M.A.G., filed a letter with the Commission
appealing the judge's default orders. Mr. Stanley requests that the default
orders be withdrawn and that M.A.G. be given an opportunity to address the
penalty assessments.
Under the Mine Act and the Commission's procedural rules, relief from a
judge's decision may be sought by filing a petition for discretionary review
with the Commission within 30 days of the decision. 30 U.S.C. § 823(d)(2); 29
C.F.R. § 2700.70(a). We will treat M.A.G.'s letter as a timely filed petition
for discretionary review of the decision. See~. Middle States Resources,
Inc., 10 FMSHRC 1130 (September 1988). On the basis of the present record, we
are unable to evaluate the merits of M.A.G.'s position. In the interest of
justice, we will permit M.A.G. to present its position to the judge, who shall
determine whether final relief from the default orders is warranted.

604

Accordingly, we vacate the judge's default orders and remand these
matters for further proceedings.

Arlene Holen, Chairman

~

"Richard V. Backley, Co~~

J~7tile~~::~
. . dJl~~~
L. Clair Nelson, Commissioner

Distribution

Michael Stanley, President
M.A.G. Incorporated
P.O. Box 445
Boomer, \{11 25031
Glenn M. Loos, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, VA 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety & Health Review Commission
1730 K Street, N.W., Suite 600
Washington, D.C. 20006

605

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

20006

April 27, 1993

CLIFFORD MEEK

v.

Docket No. LAKE 90-132-DM

ESSROC CORPORATION

BEFORE:

Holen, Chairman; Backley,

Doy~e

and Nelson, Commissioners

DECISION
BY:

Holen, Chairman; Doyle and Nelson, Commissioners

This is a discrimination proceeding brought under the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (1988)("Mine Act" or
"Act") by Clifford Meek against Essroc Corporation ("Essroc"). Commission
Administrative Law Judge William Fauver concluded that Essroc was the
successor corporation of Meek's former employer and that Essroc discriminated
against Meek by its failure to hire him at the time of the changeover in
ownership. 13 FMSHRC 1970 (December 199l)(ALJ). The Commission granted
Essroc's petition for discretionary review, which challenges: (1) whether
Essroc is a successor corporation to Meek's former employer; (2) whether the
judge's finding of discrimination is supported by substantial evidence;
(3) whether the judge erred as to several procedural rulings; (4) whether the
judge erred in his calculation of the backpay award, which was not reduced to
reflect Meek's unemployment compensation; and (5) whether the judge's
attorneys' fee award was erroneous. We affirm the judge's rulings with the
exception of the backpay award, which we remand for further findings
consistent with this opinion.
I.

Factual and Procedural Background
A.

Factual Background

Essroc's cement division, Essroc Materials, Inc. , 1 owns and operates a
grinding plant in Stark County, Ohio (the "Middlebranch Plant") with approximately 40 employees. The Middlebranch Plant grinds materials, such as
1

Essroc and its subsidiary,
referred to as "Essroc."

Essroc Materials,

606

Inc., are collectively

limestone and clay, and stores and ships dry cement. This plant, along with
several others, was purchased by Essroc from United States Cement Company
("USC") on or about February 27, 1990. All but two USC hourly employees from
the Middlebranch Plant were hired by Essroc: an injured employee who remained
with USC, and Clifford Meek whose employment application was denied.
13 FMSHRC at 1970-71.
On January 31, 1990, USC's management requested approximately ten USC
hourly employees, including Meek, to attend a safety meeting with Richard L.
Jones, an inspector from the Department of Labor's Mine Safety and Health
Administration ("MSHA"). During the meeting, Inspector Jones encouraged the
employees to discuss their safety and health concerns and assured the
confidentiality of their remarks. Meek asked the inspector why the company
appeared to know in advance when an inspection would occur. The inspector
became angry, apparently interpreting Meek's question as an accusation that he
was violating the law. Meek left the meeting shortly after the interchange.
Later that morning, Inspector Jones told Plant Manager Marvin Bragg and
Plant Supervisor Dale Lewis that the meeting "went pretty good," with the
exception of one employee who had a "bad attitude." Tr. 332. Jones told
Lewis and Bragg of Meek's insinuation that management knew beforehand when
MSHA was going to inspect the plant. 2 Bragg then informed his superior, Mike
Roman, USC's Industrial Relations Director, that the inspector was "upset."
Tr. 381. Roman became concerned and sent a USC safety director to the
Middlebranch Plant to see if he could placate the inspector. Jones'
subsequent inspection resulted in the issuance of 15 citations, one of which
was a "significant and substantial" citation that shut down a crane for a day
and a half.
In mid-February, three Essroc supervisors met with Bragg and Roman to
select the hourly employees to be hired by Essroc. 13 FMSHRC at 1973. By
that time, Bragg and Roman knew that they were going to assume supervisory
positions at Essroc. 13 FMSHRC at 1973-74. Bragg reported that Meek had a
poor attitude and had repeatedly stated that he would not work for Bragg.
13 H1SHRC at 197L~; Tr. 287.
showed the Essroc supervisors a -v1ritten
evaluation form dated January 26, 1990, which he had filled out for Essroc, as
well as four other documents from Meek's personnel file. 13 FMSHRC at 1974;

2

Inspector Jones was subpoenaed to appear at the hearing but did not
comply.
At the
, Meek introduced into evidence the inspector's noncontemporaneous notes recounting the
and his conversation with plant
management. 13 FMSHRC at 1972. The judge discredited these notes because they
were at variance with some of the witness accounts and were not subject to crossexamination. Id.

607

Tr. 284 88. 3 On Bragg's recommendation, with Roman's support, it was decided
that Meek would not be hired. 13 FMSHRC at 1974.
A meeting was held by Bragg on February 27, 1990, announcing to the
employees that Essroc was purchasing the Middlebranch Plant and that all
employees were terminated as of that date. He advised all those interested in
Essroc positions to apply for the jobs they had held at USC and to attend a
meeting the next day. Bragg telephoned Meek early the next morning and told
him not to bother coming to the meeting because Essroc was not going to
approve his job application. Meek attended anyway. Bragg and Roman took him
aside and told him that USC had terminated him and that Essroc refused to hire
him. Tr. 55-56.
B.

Procedural History

Meek filed a discrimination complaint with MSHA on March 30, 1990. MSHA
subsequently informed Meek that it had found no discrimination in violation of
section 105(c) of the Mine Act, 30 U.S.C. § 815(c). On September 27, 1990,
Meek filed a discrimination claim on his own behalf with the Commission
pursuant to section 105(c)(3) of theAct, 30 U.S.C. § 815(c)(3). A hearing
was scheduled and Essroc filed a motion for summary judgment, which was
denied.
At the May 28, 1991, hearing, Essroc moved to dismiss the complaint at
the close of Meek's case. The judge took the motion under advisement. On
June 6, Meek's counsel moved to reopen the hearing on the basis of newly
discovered evidence, i.e., that two separation notices, entered into evidence,
might have been altered. Meek's counsel sought to put Andy Coccoli, who had
prepared them, on the stand to so testify. Essroc opposed the request to
reopen and the judge heard oral argument on the motion during a teleconference
on June 25. The judge granted the motion and the hearing was reopened on
July 18, 1991.

3

In the January 26, 1990, evaluation, Bragg gave Meek a "Poor" mark in the
category "Attitude Toward Work & Company."
He received "Fair" ratings for
"Quality of Work" and "Productivity & Quantity of Work." Bragg had also written:
"This employee has ability to do a lot but is unwilling, his attitude is very
close to being insubordinate, also can't get along with other employees." Ex.
R-1. Also presented to Essroc were separation (layoff) notices dated
February 13, and April 24, 1987, signed by Andy Coccoli, a former plant manager.
The third document was an Employee Evaluation Report dated January 18, 1989,
prepared by Bragg and initialed by Lewis, that rated Meek's "Cooperation,
Attitude and Initiative" as "Poor." The comments on the report stated: "Must
improve. This employee has made statements to other employees that he is not
afraid to go to jail for assault" against his supervisors. Ex. R-2. The fourth
document was a separation notice dated September 25, 1989, signed by Bragg, that
rated Meek's "Conduct and Application" as "Poor." Ex. R-1.

608

On December 24, 1991, the judge issued a decision solely with respect to
liability. 4 He found that Essroc, through its subsidiary, Essroc Materials,
Inc., was a successor in interest to USC at the Middlebranch Plant. 13 FMSHRC
at 1975. The judge determined that "[t]he evidence shows continuity of the
business operations of the Middlebranch Plant from USC to Essroc with Essroc's
use of the same plant, equipment, and essentially the same work force and
supervisory personnel." Id.
The judge also found that Essroc had discriminated against Meek because
of activity protected under section 105(c) of the Mine Act. The judge found
that Meek's complaint to the MSHA inspector that the operator appeared to have
had prior knowledge of inspections qualified as protected activity and that
the adverse action was motivated in part by that protected activity. The
judge discounted the reasons given by Essroc for not hiring Meek because they
were based in large part upon Bragg's and Roman's recommendations.
Additionally, the judge determined that the separation documents had been
tampered with in an effort to disparage Meek. 13 FMSHRC at 1975.
The judge also concluded that Essroc had failed to raise a successful
affirmative defense to Meek's prima facie case because evidence did not show
that, "independent of Meek's complaint to Inspector Jones, his application for
employment by Essroc would not have been accepted as were the applications
from all other USC Middlebranch Plant hourly employees." 13 FMSHRC at 197980.
After extensive correspondence and filings by the parties on the issue
of backpay, interest and attorneys' fees, the judge's final order awarded Meek
backpay and interest amounting to $24,000.00, and attorneys' fees of
$17,065.80. 14 FMSHRC 518 (March 1992).
II.

Disposition of Issues
A.

Whether Essroc is a successor of USC

Essroc argues that it is not a successor of USC because its upper level
management and ownership are different and distinct from those of USC.
Essroc, as a large enterprise, produces many more products than USC.
Additionally, USC still exists as a business entity because Essroc purchased
only 70% of its assets. These factors are insufficient to avoid a finding of
successorship under the circumstances presented.
The judge found that Essroc was a successor to USC under the
Commission's successorship test first enunciated under the Federal Goal Mine
Health and Safety Act of 1969 in Munsey v. Smitty Baker Goal Company. Inc., 2
FMSHRG 3463 (December 1980), aff'd in relevant part sub nom. Munsey v. FMSHRG,
4

On January 31, 1992, the judge issued a supplemental decision denying
Essroc's motion to dismiss, for the reasons set forth in his December 24, 1991,
decision.

609

701 F.2d 976 (D.C. Cir.), cert. den. sub nom. Smitty Baker Coal Co. v. FMSHRC,
464 U.S. 851 (1983), and readopted under the Mine Act in Secretary on behalf
of James Corbin et al. v. Sugartree Corp., Terco. Inc. and Randal Lawson,
9 FMSHRC 394, 397-99 (March 1987), aff'd sub nom. Terco, Inc. v. FMStlRC, 839
F.2d 236, 239 (6th Cir. 1987). See also Secretary on behalf of Keene v.
Mullins, 888 F.2d 1448, 1453 (D.C. Cir. 1989). Under this test, the successor
operator may be found liable for, and responsible for remedying, its
predecessor's discriminatory conduct. The factors for determining successorship are: (l) whether the successor company had notice of the underlying
charge of possible discrimination; (2) the ability of the predecessor to
provide relief; (3) whether there has been a substantial continuity of
business operations; (4) whether the new employer uses the same plant;
(5) whether he uses the same or substantially the same work force; (6) whether
he uses the same supervisory personnel; (7) whether the same jobs exist under
substantially the same working conditions; (8) whether the new employer uses
the same machinery, equipment and methods of production; and (9) whether he
produces the same product. See Terco, 839 F.2d at 239; Mullins, 888 F.2d at
1454.
Substantial evidence support~.the judge's decision that, under the
Munsey-Terco test, Essroc qualifies as a successor to USC at the Middlebranch
Plant. Essroc acquired the entire Middlebranch Plant; it used virtually the
entire workforce (except for Meek and an injured employee); it assumed the
same supervisory personnel; it produced the same product; there was a
substantial continuation of business operations at the Middlebranch Plant
between USC and Essroc; Essroc knew of the "charge" involving Meek through
Roman, Bragg and Lewis, who became Essroc supervisors. Roman and Bragg were
instrumental in the decision not to hire Meek. The judge did not expressly
address in his decision the ability of the predecessor to provide relief, but
concluded generally that all the relevant criteria were satisfied. Thus,
Essroc may be held derivatively liable for the discriminatory acts of USC.
B.

Merits of Meek's discrimination case against Essroc.

miner
discrimination under the Mine Act establishes a prima
facte case
proving that he engaged in protected activity and that the
adverse action complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Go., 2 FMSHRC 2786, 27972800 (October 1980), rev'd on other grounds sub nom. Consolidation Goal Co. v.
663 F.2d 1211 (3d Cir. 1981); Secretary on behalf of Robinette v.
3 ~ISHRC 803, 817-18 (April 1981). The operator may
rebut the prima facie case by showing either that no protected activity
occurred or that the adverse action was in no part motivated by protected
actlVl
Pasula, 2 FMSHRC at 2799-2800. If the operator cannot rebut the
prima facie case, it nevertheless may defend affirmatively by proving that it
also was motivated by the miner's unprotected activity and would have taken
the adverse action in any event for the unprotected activity alone. Pasula, 2
FMSHRC at 2800; Robinette, 3 FMSHRC at 817 18; see also Eastern Assoc. Coal
Corp. v. FMSHRC; 813 F.2d 639, 642 (4th Cir. 1987); Donovan v. Stafford
Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d
194, 195-96 (6th Cir. 1983)(specifically approving the Commission's Pasulatest).

610

1.

Prima facie case

On review, Essroc does not dispute the judge's finding that Meek engaged
in protected activity by raising a safety-related question at the January 31,
1990, meeting of employees. It is also undisputed that Meek suffered an
adverse employment action in not being hired by Essroc upon its takeover of
the Middlebranch Plant. The issue on review is whether that adverse action
was linked to Meek's protected activity. The judge determined that Meek
established a causal nexus between the adverse action and his protected
activity. We agree.
As the judge noted, "Direct evidence of motivation is rarely
encountered; more typically, the only available evidence is indirect ....
'Intent is subjective and in many cases the discrimination can be proven only
by the use of circumstantial evidence.'" 13 FMSHRC at 1977, quoting Secretary
on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (November
1981); see also Bradley v. Belva Coal Company, 4 FMSHRC 982, 992 (June 1982)
("[C]ircumstantial evidence ... and reasonable inferences drawn therefrom may
be used to sustain a prima facie case of discrimination.").
It is evident from the record that USC supervisors had knowledge of
Meek's protected activity. Plant Manager Bragg, Plant Supervisor Lewis, and
Industrial Relations Director Roman all quickly learned of Meek's comment to
the MSHA inspector. Inspector Jones reported to Lewis and Bragg that his
meeting with USC employees went well, with the exception of Meek, who had a
"bad attitude." Roman became concerned enough about the comment that he sent
USC's
director to the Middlebranch plant to placate the inspector.
Thus, there is substantial evidence to support the finding that management had
knowledge of Meek's activity. As the Commission has noted, "[t]he operator's
knowledge of the miner's protected activity is probably the single most
important aspect of a circumstantial case." Chacon, 3 FMSHRC at 2510.
Further, the record shows that USC reacted in a hostile manner to Heek's
protected
"Hostility towards protected
sometimes
referred to as 'animus'
is another circumstantial factor pointing to
discriminatory motivation." Chacon, 3 FMSHRC at 2511,
NLRB v. Superior
366 F.2d 229, 233 (8th Cir. 1966). Here, USC employee James
Gallentine testified that Plant Supervisor Lewis told him that USC's vice
president was upset over Meek's remark to the inspector and wanted Meek fired.
Tr. 35. although Lewis denied making the remark, the judge credited
Gallentine's testimony. 13 FMSHRC at 1973, 1979. Therefore, the judge's
that USC management wanted to fire Meek because of his protected
is supported by substantial evidence.
The judge made reasoned conclusions in discrediting the reason given by
Bragg and Roman for not
Meek. Bragg did not testify at the hearing.
Essroc submitted affidavits from Bragg and Roman in which they stated that
Meek had told Bragg that he would not work for Bragg. However, Meek, after
be
warned by Gallentine to "watch [his] back," had begun wearing a
recorder during his conversations with management. Among the conversations
recorded and put into evidence were those on February 27 and 28, with Bragg
and Roman. In Meek's
, he did not say he would not work for Bragg nor

611

was there an indication that he had made such a statement. 13 FMSHRC at 1978.
The other supervisor present at the February 27 conversation did not recall
Meek making such a statement. Tr. 365. Thus, there is substantial evidence
for the judge's conclusion that Bragg made his allegation so that Essroc would
not hire Meek.
Meek's evaluations and Essroc's alleged justification for not hiring
him, because he was a poor worker, are also suspect. The February 13, and
April 24, 1987, separation notices contain a rating scale by which a
supervisor could check off an employee's performance as "Good," "Fair," or
"Poor" in various categories. They show that Meek's "Conduct" was rated as
"Poor." Exs. C 2-B, C-3-B. However, Coccoli, who had signed the notices,
testified that he had not checked those items and, to the contrary, had found
Meek to be an excellent employee in all work areas, including skills,
performance and attitude. Tr. II 33-35, 38-39. 5 Coccoli testified that he
had found Heek to be "courteous, honest," and "excellent all the way through,"
and that, "If I had to open a company today, I would say he would be one [of]
the first guys I would hire." Tr. II 33, 34. He stated that if he were to
rate Meek's conduct and productivity, given the choices of good, fair or poor,
he would check the "good" box. Tr.,.II 35. Coccoli stated: "I would say he's
got a lot of ability. He's a good mechanic. It didn't take long for him to
... learn the jobs in the lab or as a ... crane operator, which is a pretty
delicate job. And as a miller, I would rate him excellent .... " Tr. II 34.
The judge concluded that "tampering" had occurred and "raised a serious cloud
over the integrity and credibility of USC's evaluation of Meek." 13 FMSHRC at
1975. The other evaluations of Meek were signed by Plant Manager Bragg.
Apart from the discredited evaluations and affidavits, other record
evidence supports the judge's finding. Meek was never presented with any of
the alleged poor evaluations during his eight years of employment with USC,
nor was he ever disciplined or cautioned. Tr. 26-29. He was always rehired
after layoffs and had received promotions and plant-wide pay raises. His
attendance record was exemplary, never having missed a day of work in eight
years. Tr. 28.
Finally, Essroc's dec~s~on noc to hire Neek was made in close proximity
to the MSHA meeting. That meeting was held on January 30, 1990, and the
hiring meeting with Essroc occurred in mid-February. Coincidental timing can
be indicative of discriminatory motivation. As the Commission noted in
Chacon, "[ dverse action under circumstances of suspicious timing taken
against the employee who is [
figure in protected activity casts doubt on
the legality of the employer's motive .... " 3 FMSHRC at 2511.
Vie conclude that the judge's
of a prima facie case of
discrimination is suppor-ted by substantial evidence and is consistent with
relevant Commission case law. Accordingly, we affirm that finding.

5

Tr. II refers to the second hearing in this proceeding held on
July 18, 1991.

612

2.

Affirmative defense

Essroc contends that, even if Meek established a prima facie case, it
affirmatively defended against that case by proving it would not have hired
him in any event. In support, Essroc relies on three earlier unfavorable
evaluations of Meek that were prepared by Bragg prior to the MSHA meeting.
Essroc also points out that the three Essroc officials who made the hiring
decision were not aware of Meek's protected activity.
An operator bears the burden of proving an affirmative defense to a
discrimination complaint. Pasula, 2 FMSHRC at 2799-2800; Bradley, 4 FMSHRC at
993. As noted, the evaluations on which Essroc relies are suspect and are
insufficient to establish an affirmative defense. While an operator may
establish an affirmative defense by proving that the employee received past
warnings, prior disciplinary action or unsatisfactory work evaluations (see
Bradley, 4 FMSHRC at 993), Essroc's evaluation system does not reflect normal
business practices regarding an employee evaluation system. 6 Additionally,
the testimony of Meek's former supervisor, Coccoli, directly contradicts
Bragg's unfavorable evaluations of Meek.
Further, it is immaterial that"the three Essroc officials attending the
hiring meeting may not have been aware of Meek's protected activity. Essroc
qualifies as a successor to USC, and hence is derivatively liable for the
actions of USC management who knew of Meek's protected activity.
Thus, Essroc did not establish that its failure to hire Meek was also
motivated by unprotected activity and that it would have taken the adverse
action in any event for the unprotected activity alone. Pasula, 2 FMSHRC at
2800; Robinette, 3 FMSHRC at 817-20. Therefore, we conclude that substantial
evidence supports the judge's determination that Essroc failed in its burden
of proof with respect to its affirmative defense.
C.
Essroc argues that the judge made a number of procedural errors at the
hearing. \tie find Essroc's claims to be "1-lithout merit.
1.

Reopening of the hearing

Essroc argues that the judge erred in reopening the hearing to take
additional testimony on the basis of newly discovered evidence. Essroc
contends that "the evidence presented was not "newly discovered" but simply
evidence that with the use of pretrial discovery, could have been presented
at the initial hearing. It asserts that the Coccoli testimony should have been

6

All employees who testified stated that they were unaware that any
evaluation system existed at USC. Tr. 26-27, 128, 137, 174. USC did not show
Meek any of his evaluations, nor had any disciplinary action been taken against
him as a result of the allegedly poor evaluations. Tr. 26, 28.

613

uncovered before the hearing, and thus was not "newly discovered" under the
Federal Rules of Civil Procedure ("Fed. R. Civ. P."). 7
Meek's motion to reopen was made prior to entry of judgment. Commission
Procedural Rule 54(a), 29 C.F.R. § 2700.54(a), empowers Commission judges to
regulate the course of hearings and to dispose of procedural motions. Under
this authority, Commission judges may reopen hearings in appropriate cases.
See Kerr-McGee Coal Corp., 15 FMSHRC 352, 357 (March 1993). Commission may
also properly look for guidance to the Federal Rules of Civil Procedure ("Fed.
R. Civ. P. 11 )(29 C.F.R. § 2700.l(b)), and precedent thereunder. A motion to
reopen the record to submit new evidence is not expressly addressed in the
federal rules but, rather, is committed to the sound discretion of the trial
judge. See generally, Zenith Radio Corp. v. Hazeltine Research, Inc., 401
U.S. 321, 331 (1971). In general, an abuse of discretion occurs when the
trial court bases its decision on an erroneous conclusion of law or where
there is no rational basis in the evidence for its ruling. See, ~. In re
Coordinated Pretrial Proceedings, etc., 669 F.2d 620, 623 (lOth Cir. 1982).
A motion for a new trial under Fed. R. Civ. P. 59 has certain
similarities and affords some guidance. See J. Moore, J. Lucas & G. Grother,
6A Moore's Federal Practice, 59.04[13](2d ed. 1992)("Moore's"). Generally,
in determining whether to grant a motion to reopen, it is appropriate to
consider the time when the motion is made, the character of the additional
evidence, and the effect of granting the motion. 6A Moore's
<JI 59.04[13].
Meek's motion was made on a timely basis, approximately nine days after
the hearing and before a decision was issued by the judge. No unnecessary
delay occurred.
Carracci v. Brother Int'l Sewing Machine Corp. of L.A.,
222 F. Supp. 769, 771 (E.D. La. 1963), aff'd, 341 F.2d 377 (5th Cir. 1968).
As to the character of the additional evidence, it was not cumulative of
testimony presented at the hearing. Rather, Meek sought to rebut evidence of
his poor performance
presenting evidence that the two separation notices
had been altered to indicate that he was a "poor" Harker. Coccoli, the author
of the notices, was to
that he had not provided such a poor rating.
The third factor, the effect of granting the motion, also supports reopening.
The testimony involved serious allegations of fraud upon the Commission. See
generally
64 F. Supp. 651, 652 (W.D. Pa.
1946). For these reasons, we conclude that the judge acted within his sound
discretion in granting ~'leek's motion to reopen the hearing and in receiving
the additional testimony.

7
Essroc also contends that Meek should not have been permitted to reopen
the hearing to introduce the testimony of former USC Plant Manager Kalman Potter.
The judge did not rely on the Potter testimony in any respect in reaching his
decision.
Therefore, ive conclude that no error arose from hearing that
testimony.

614

2.

Denial of Essroc's motions for summary decision
and for directed verdict

Essroc contends that the judge should have granted Essroc's motion for
summary decision prior to the hearing. Applying Commission Procedural Rule
64, 29 C.F.R. § 2700.64, 8 the judge determined that there were four factual
areas in contention: (1) was Essroc a successor in interest to USC?; (2) did
MSHA Inspector Jones inform management of his conversation with Meek?; (3) did
supervisor Lewis inform miner Gallentine that USC management wanted to fire
Meek?; and (4) did Meek inform supervisors Bragg or Roman that he couldn't
work with Bragg? Unpublished Order dated May 8, 1991. Summary decision may
be entered only when there is no genuine issue as to any material fact.
Missouri Gravel Co., 3 FMSHRC 2470, 2471 (November 1981). Here, the record
revealed that there were four disputed factual areas that precluded summary
decision.
Essroc's reliance on Meek's deposition for failing to establish a
discriminatory motive is also misplaced. Meek was under no duty to prove his
case during his deposition. On the contrary, at a deposition the opposing
party poses particular questions t<f the deponent and he is required only to
answer fully and truthfully the questions posed. Accordingly, Judge Fauver
acted within his discretion in denying Essroc's motion.
Similarly, Essroc argues that the judge should have granted its motion
for directed verdict made at the close of Meek's case.
It was within the
judge's discretion to take under advisement Essroc's motion.
Fed. R. Civ. P.
52(c), "Judgment on Partial Findings," provides: "If during a trial without a
jury a party has been fully heard with respect to an issue ... , the court may
enter judgment as a matter of law against that party on any claim ... , or the
court may decline to render any judgment until the close of all the evidence."
(Emphasis added). The Notes of the Advisory Committee on Rules to Fed. R.
Civ. P. 52(c) specify that a court possesses "the discretion to enter no
judgment prior to the close of evidence." Here the judge exercised that
discretion. Accordingly, we find no error by the judge and affirm his
procedural determinations.
E.

Backpay award

Essroc contends that the judge erred in his backpay award on two
grounds: the judge should have deducted from the award unemployment
compensation received by Meek; and, the judge should have used comparable wage

8

Commission Procedural Rule 64 provides:
(b) Grounds. A motion for summary decision shall
be granted only if the entire record, including the
pleadings, depositions, answers to interrogatories,
admissions, and affidavits shows: (1) [t]hat there is no
genuine issue as to any material fact; and (2) that the
moving party is entitled to summary decision as a matter
of law.

615

data from a certain Essroc employee, rather than relying on an estimate of
lost wages.
1.

Deduction of unemployment compensation

In the proceedings below, Essroc requested that Meek's unemployment
compensation be deducted from Meek's backpay. The judge summarily denied
Essroc's request without setting forth reasons. Unpublished Order dated
February 18, 1992. Although the total unemployment compensation that Meek
received has not been established, it appears from the record to be
approximately $2,700. For the following reasons, we conclude that Meek's
unemployment compensation should be deducted from the backpay award.
The question of whether to deduct unemployment compensation from a
backpay award is one of first impression for this Commission. The Mine Act is
silent on the question. For guidance, we look to case law interpreting
relevant remedial provisions of the National Labor Relations Act, 29 U.S.C.
§ 160 ("NLRA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-5(g) ("Title VII") and the Age Discrimination in Employment Act (29
U.S.C. § 634 ("ADEA"). The Mine AGt'.s remedial provisions, as well as those
of Title VII and the ADEA, are modeled on section lO(c) of the NLRA, as
amended, 29 U.S.C. § l60(c). See,~. Secretary on behalf of Dunmire and
Estle v. Northern Coal Company, 4 FMSHRC 126, 142 (February 1982).
In NLRB v. Gullett Gin Co., 340 U.S. 361 (1951), the Supreme Court was
presented with the issue of whether the National Labor Relations Board
("NLRB") exceeded its discretion in refusing to deduct unemployment
compensation from a backpay award. The NLRB's order allowed deduction of
other earnings during the backpay period but did not provide for a deduction
of unemployment compensation. In concluding that the NLRB had not abused its
discretion, the Court stated: "Because the relation of remedy to policy is
peculiarly a matter for administrative competence, courts must not enter the
allowable area of the Board's discretion .... " 340 U.S. at 363.
Consistent with the Supreme Court's decision in
courts have
held uniformly that similar discretion exists under other labor statutes with
remedial provisions patterned on the NLRA. Thus, reviewing courts have
determined that, under Title VII and the ADEA, the deduction of unemployment
compensation from backpay awards is a matter within the discretion of the
trial judge. See, ~. EEOC v. Enterprise Ass'n Steamfitters, 542 F.2d 579,
591-92 (2d Cir. 1976)(Title VII); EEOC v. Sandia Corp., 639 F.2d 600, 624-26
(lOth Cir. 1980)(ADEA); Naton v. Bank of California, 649 F.2d 691, 699-700
(9th Cir. 198l)(ADEA); Hunter v. Allis-Chalmers, 797 F.2d 1417, 1428-29 (7th
Cir. 1986)(Title VII), Cooper v. Asplundh Tree Expert Go., 836 F.2d 1544, 1555
(lOth Cir. 1988)(ADEA). We conclude that, under the Mine Act's remedial
scheme, this Commission may exercise its discretion to adopt an appropriate
policy concerning the deduction of unemployment compensation. 9 See Gullett
9
We note that in Boich v. FMSHRC, 704 F.2d 275, 286-87 (6th Cir. 1983),
the Sixth Circuit concluded that a Commission administrative law judge did not
(continued ... )

616

Gin, 340 U.S. at 363. See also S. Rep. No. 181, 95th Gong., 1st Sess. 25
(1977), reprinted
Senate Subcommittee on Labor, Committee on Human
Resources, 95th Gong., 2d Sess., Legislative History of the Federal Mine
Safety and Health Act of 1977, at 625 (1977)("Legis. Hist.").
The Commission endeavors to make miners whole and to return them to
their status before illegal discrimination occurred.
Munsey, 2 FMSHRC at
3464; Secretary on behalf of Bailey v. Arkansas-Carbona Co., 5 FMSHRC 2042,
2056 (December 1983). "Our concern and duty is to restore the discriminatees,
as nearly as we can, to the enjoyment of the wages and benefits they lost as a
result of their illegal terminations." Dunmire, 4 FMSHRC at 143. Monetary
relief is awarded "to put an employee into the financial position he would
have been in but for the discrimination." Secretary on behalf of Gooslin v.
Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982). Further, "we endeavor to
make our awards as reasonable as possible." Dunmire, 4 FMSHRC at 143. The
Commission seeks to fashion relief that is just and does not overcompensate
the discriminatee. Id. at 142-43.
A policy of deducting unemployment compensation from a backpay award
under the Mine Act does not mean thatthe miner is less than fully compensated
for his lost wages. Rather, as the Second Circuit has stated in a Title VII
case, "We see no compelling reason for providing the injured party with double
recovery for his lost employment .... " Enterprise Ass'n Steamfitters, 542 F.2d
at 592. Additionally, failing to deduct unemployment compensation conflicts
with the Commission's well established policy of deducting earnings from the
backpay award. See, ~. Dunmire, 4 FMSHRC at 144. If earnings are deducted
from backpay, we see no reason why unemployment compensation should not be
deducted as well. 10
Deducting unemployment compensation from backpay awards is not
inconsistent with the Mine Act's goal of deterring illegal conduct. The
employer will still be required to place the victim of unlawful discrimination
in the same position he was in but for the unlawful discrimination, providing
backpay, reinstatement with full seniority rights and attorneys' fees. The
employer should not be required to additionally compensate the miner with
backpay for funds already received, if the miner has worked in the interim or
9

( ••• continued)
abuse his discretion in declining to deduct unemployment compensation from
backpay.
relied primarily on Gullett Gin to determine that the judge and
the agency had such remedial discretion. Id. Boich was not briefed and argued
to the Commission, since the Commission had not granted review. 704 F. 2d at 278.
Therefore, it does not represent Commission policy.

10

We note that when unemployment compensation and backpay are both
received, unemployment compensation must, in many instances, be repaid to the
state fund.
Gullett Gin, 340 U.S. at 365 n.l.
States may require
restitution of unemployment compensation when, as a result of an award of
backpay, the worker is rendered not unemployed for the period of the award and
the benefits received become overpayments.
42 U.S.C. § 503(g)
(1988); 26 U.S.C. § 3304(a)(4)(1988).

617

received unemployment compensation. 11 Significantly, the Mine Act, unlike
the NLRA, Title VII, and the ADEA, authorizes that a separate civil penalty be
assessed against an operator who unlawfully discriminates against a miner. 30
U.S.C. §§ 815(c), 820(a). The Commission's recently issued Procedural Rules
require the Secretary of Labor to propose a separate civil penalty for a
violation of section 105(c). 58 Fed. Reg. 12168 (1993) (to be codified at 29
C.F.R. § 2700.44)(effective May 3, 1993).
For the reasons set forth, we conclude that deducting unemployment
compensation from a backpay award is a reasonable and sound policy that fully
effectuates the Mine Act's goal of making whole miners who have been
wrongfully discharged in violation of the Act.
In Brown v. A.J. Gerrard Mfg. Co., 715 F.2d 1549, 1550-51 (11th Cir.
1983), and Craig v. Y&Y Snacks, 721 F.2d 77, 81-85 (3d Cir. 1983), the
Eleventh and Third Circuits, respectively, established a consistent approach
to the deductibility of unemployment compensation among the district courts
whose decisions those circuit courts review. Both circuits relied on Gullett
Gin. The Commission, as did those circuit courts, now adopts a policy for its
administrative law judges, in order-to ensure equality of treatment of miners
and mine operators in Commission decisions. Like the Eleventh Circuit in
Brown, we determine that "[a] consistent approach to this legal question seems
preferable to a virtually unreviewable discretion which may produce arbitrary
and inconsistent results." 715 F. 2d at 1551. 12
Thus, we reverse the judge's decision not to deduct Meek's unemployment
compensation. We remand to the judge to determine the amount of unemployment
compensation received by Meek and to deduct that amount from Meek's backpay in
accordance with our opinion.
2.

Use of comparable wage data

On March 10, 1992, the judge ordered Essroc to produce copies of the W-2
statements and quarterly gross wages for all its hourly employees at the
Middlebranch Plant for the period from February 27, 1990, to March 1, 1992.
Essroc submitted wage information pertaining to only three employees, whom it
11

"All states
incorporate experience rating as the basis for
determining employers'
contribution rates."
Employment and Training
Administration, U.S. Dept of Labor, Unemployment Insurance Program Letter No. 392, Experience Rating Index (1991). When an individual receives unemployment
compensation, his previous employer is, as a result, taxed at an increased rate,
depending upon the degree of experience
See 26 U.S.C. § 3303(a)(l988).
12

In a case currently before the Commission, Secretary on behalf of Nantz
v. Nally & Hamilton Enterprises. Inc., 15 FMSHRC 237, 241 (February 1993)(ALJ),
Administrative Law Judge George A. Koutras determined that unemployment
compensation should be subtracted from a backpay award. The Secretary of Labor
took no position on the issue "other than to stipulate that it is within the
discretion of the presiding judge."

618

believed were "comparable" to Meek. The judge's final order notes that Essroc
had failed to provide certain financial materials relevant to backpay that he
had ordered produced. 14 FMSHRC at 518. The judge awarded backpay in the
amount of $24,000 based on Meek's estimates.
Essroc contends that the judge should have awarded $22,582.91, based on
the wage reports of one of the three Essroc employees concerning whom it had
provided data. The judge was not able to determine whether the wages of that
employee were comparable because of Essroc's failure to produce relevant wage
documentation. Because Essroc did not produce the information ordered by the
judge, we are unable to evaluate whether the $1,500 reduction urged by Essroc
is appropriate. Accordingly, we conclude that, based on the information
before him, the judge acted appropriately by determining Meek's lost wages to
be $24,000.
E.

Attorneys' fee award

On review, Essroc provides the Commission with no detail supporting its
charge of excessive attorneys' fees. An attorneys' fee award in Mine Act
discrimination cases lies within the· sound discretion of the trial judge.
Secretary on behalf of Ribel v. Eastern Assoc. Coal Corp., 7 FMSHRC 2015, 2027
(December 1985), rev'd on other grounds in Eastern Assoc. Coal, 813 F.2d 639.
The judge considered extensive documentation from Meek's counsel, including
itemized statements, before reaching his determination. We perceive no abuse
of discretion. Accordingly, we affirm the judge's award of attorneys' fees.

619

III.
Conclusion
For the foregoing reasons, we affirm the judge's decision in all
respects, except for the failure to deduct Meek's unemployment compensation
from backpay. We remand the case for further findings on the amount of
unemployment compensation Meek received during the backpay period and direct
that the sum be deducted from Meek's backpay award in accordance with this
decision. 13

Arlene Holen, Chairman

JJ-(_~"-nu_~
L. Clair Nelson, Commissioner

13

We note that the judge ordered the interest on backpay computed at the
IRS adjusted prime rate under Arkansas-Carbona Company, 5 FMSHRC at 2050-52.
13 FMSHRC 1980 n.4. In Clinchfield Coal Co., 10 FMSHRG 1493 (November 1988), the
Commission modified the calculation of such interest. We remind the judge that
interest should be calculated according to Arkansas-Carbona, as modified by
Clinchfield.

620

Commissioner Backley concurring in part and dissenting in part.
The majority has correctly concluded that under the Mine Act the Commission has
the discretion to fashion a policy regarding the effect of unemployment compensation
upon the backpay award received by a miner. The Commission however, as with any
court or agency, must base its exercise of discretion upon reasoned, rational principles that
are not in conflict with binding precedent. Failure to do so amounts to an abuse of that
discretion. In this case, examination of the bases upon which the majority concludes that
unemployment compensation received shall be deducted from backpay awards constrains
me to conclude that the majority has abused its discretion.
Distilled to its core, the majority's rationale is that the failure to deduct
unemployment compensation results in a windfall to the miner that is in conflict with the
policy to require deductions of earnings from backpay, and that such failure to deduct
constitutes an additional expense to the employer.
The foregoing reasoning has long since been considered and rejected by the
Supreme Court. Indeed the very same Supreme Court case relied upon by the majority, in
support of its conclusion that it has discretion to adopt a policy on this issue, provides a
clear prescient rejection of the majority's rationale.
To decline to deduct state unemployment compensation benefits
in computing back pay is not to make employees more than
whole, as contended by respondent. Since no consideration
has been given or should be given to collateral losses in framing
an order to reimburse employees for their lost earnings,
manifestly no consideration need be given to collateral benefits
which employees may have received.
1\!L.RB v. Gullett Gin Co., 340

361,364 (1951) (emphasis in original).

Thus, in determining that the NLRB acted properly within its discretion by refusing
to deduct unemployment compensation from backpay owed, the Supreme Court clearly
differentiated unemployment compensation from earnings. The Court flatly rejected the
argument that unemployment compensation was to be treated as earnings.
In Marshall Field & Co. v. National Labor Relations Board, 318
U.S. 253, 87 Led 744, 63 S Ct 585, this Court held that the
benefits received by employees under a state unemployment
compensation act were plainly not earnings which, under the
Board's order in that case, could be deducted from the
back pay awarded.
340 U.S. at 363.

621

The Gullett Gin Court also rejected the argument that the unemployment
compensation payments were to be considered as direct payments from the employer and
therefore properly set-off against the backpay award. The Court stated:
Payments of unemployment compensation were not made to
the employees by respondent but by the state out of state
funds derived from taxation. True, these taxes were paid by
employers, and thus to some extent respondent helped to create
the fund. However, the payments to the employees were not
made to discharge any liability or obligation of respondent, but
to carry out a policy of social betterment for the benefit of
the entire state.
340 U.S. at 364 (citations omitted).
Although the Commission has the .discretion under the Mine Act to establish a
policy on this issue, even one that differs from the result reached by the Supreme Court,
the Commission does not have the authority to bottom its discretionary policy choice upon
standards or reasons which have been rejected by the Supreme Court.
A lower court, when faced with a factually distinguishable but legally
relevant Supreme Court decision, may employ the Supreme Court's
method of analysis to render a decision that differs from the Supreme
Court's. A lower court, however, may not employ a different standard in
analyzing the different facts.
Levine v. Heffernan, 864 F.2d 457, 460 (7th Cir. 1988) (emphasis in original).
In this case the majority has strayed even further than the lower court in Levine.
Here the majority has relied upon a rationale which has been rejected by the Supreme
Court. ll The Commission is required to follow not only the decisions but also the clear
implications of Supreme Court decisions. Hendricks County Rural Elec. v. N.L.R.B., 627
F.2d 766, 769, rev. Qn other grounds, 454
S. 170, on remand, 688 F.2d 841. 7) Unless
and until the Supreme Court chooses to depart from its ruling and rationale we must be so
guided. Kovacs v. United States, 355 F.2d 349, 351 (9th Cir. 1966).
"The collateral benefits rationale was one of the bases for the Supreme Court's
decision in Gullet Gin." Craig v. Y&Y Snacks, Inc., 721 F.2d 77,84 (3rd Cir. 1983); ~ee
also Kauffman v. Sidereal Corp., 695 F.2d. 343, 346, (9th Cir. 1982).
The Supreme Court did not disturb the circuit court's conclusions regarding the
binding effect of prior Supreme Court decisions and implications thereto. However, the
Supreme Court did rule that its own statement, contained in a prior decision and relied
upon by the circuit court, was in error.

622

To the extent that my colleagues attempt to excuse their failure to apply the
Supreme Court's rationale on the basis that the above-quoted Gullet Gin statements are
merely dicta, and therefore not controlling, they err. Whether dicta or not, the
Commission should always be guided by the opinion of the Supreme Court. United States
v. Willard, 211 F.Supp. 643, 652 (N. D. Oh. 1962). Moreover, assuming arguendo that
the above-quoted rationale is dicta, "it cannot be treated lightly by inferior federal courts
until disavowed by the Supreme Court." 627 F.2d at 768 n. 1 (citation omitted). For the
foregoing reasons I conclude that the majority has acted arbitrarily and therefore has
abused its discretion.
Beyond the foregoing legal basis for my disagreement with the majority, I am
eager to disassociate myself from a policy choice which fails to fairly balance the interests
of the parties. After reading the majority's opinion on this issue, it would seem necessary
to remind the reader that in this case the miner prevailed, i.e., he was the victim of an
illegal discharge. This caution is necessary because the majority's expressed concern
focuses unduly on avoiding the risk of visiting a windfall recovery upon the miner. Never
mind that in pursuing their approach; "there seems to be no concern that a reciprocal
windfall may inure to employers whose backpay liability will be partially discharged from
a public fund not intended for such use.
The deduction or offsetting of unemployment benefits may well result in a
windfall to the employer. He finds himself in a position where he is not
responsible for the payment of the illegally withheld back pay and then
offsetting it with unemployment benefits by the government, which is
unjust enrichment except to the extent that employers make contributions
to the fund.
{lOth Cir. 1980).

Ideally, our goal is to formulate a policy which will result in a windfall to neither
party. In seeking to achieve that same goal, the majority of courts have opted to not
deduct unemployment compensation from backpay awards. Indeed four Circuit Courts,
Third, Fourth, Ninth and Eleventh have adopted rules which have removed this matter
from district court discretion. The rule requires that no deduction of unemployment
compensation be made from Title VII backpay awards. ')_/ Furthermore, it is settled law
within the NL,RB that unemployment compensation not be deducted from back pay. 340
S. at 365-366; see also Brown v. A. J. Gerrard Mfg. Co., 7!5 F.2d 1549, 1551 (11th
1983).
The most effective and sensible approach to resolve this issue is rooted in a

I share the majority's view that case law relating to: Title VII of the Civil Rights
Act of 1964; the National Labor Relations Act; and the
Discrimination in
Employment Act is applicable to this issue.

623

footnote the Supreme Court used to support its opinion that "back pay does not make the
employees more than 'whole'." 340 U.S. at 365. The Court observed that "some states
permit recoupment ofbenefits paid." Id. n. 1. This approach has been widely followed. In
adopting a rule of non-deductibility of unemployment benefits and rejecting the windfall
argument, the Third Circuit reasoned:
although it appears to provide double recovery, in fact that is
not the inevitable result. Often insurers have subrogation rights,
and in some circumstances state benefits are recoupable.
For example, a recently enacted Pennsylvania statute
provides for recoupment of unemployment benefits
when back pay has been awarded.
Craig v. Y & Y Snacks, Inc., 721 F.2d 77, 83-84 (3rd Cir. 1983) (citation omitted.); see
also Cooper v. Asplundh Tree Expert.Co." 836 F.ed 1544, 1555 (lOth Cir. 1988), where
the court rejected the set-off because Colorado law requires an employee who receives a
back pay award to "repay ... all unemployment benefit payments received."
In affirming the lower court, the Ninth Circuit referred approvingly to the rationale

that:
if Congress did not intend for an employee to receive unemployment
benefits in addition to back pay the logical solution is a recoupment of the
unemployment benefits by the state employment agency.
Kauffman v. Sideral CoriL 695 F.2d 343, 347 (9th Cir. 1982).
Indeed, even in the Seventh Circuit where the court registered a clear concern and
preference that an employee not receive unemployment compensation and overlapping
backpay, the court reasoned that the solution was not to allow the employer to "get a
deduction for unemployment insurance benefits but that Hunter should have to repay
them" Hunter v..Allis-Chalmers Corp., Engine Div., 797 F.2d 1417, 1429 (7th Cir.
1986). The court went on to observe that if that were not possible "the choice seems to
be between conferring a windfall on Allis-Chalmers and a windfall on Hunter. As the
victim of Allis-Chalmers' wrongdoing, Hunter is the logical choice." Id.
The court's reasoning in Hunter serves to pinpoint the basic unfairness of the
majority's policy choice. The majority concedes that state recoupment of unemployment
compensation occurs "in many instances." (Slip op. 12 n. 10), thereby suggesting that the
risk of a windfall recovery to the miner is limited. On the other hand the majority also
concedes that the risk of any increased employer expense is variable and unknown. Slip
op. 13 n. 11. Thus the majority's twin concerns-- miner windfall recovery, and increased
employer payment -- are bottomed upon nothing more than vague speculation regarding

624

the effects of wide state-by-state legal variations. Notwithstanding the foregoing, the
majority, in their zeal to ensure only that illegally discharged miners not receive a windfall,
has adopted a national policy which wil1 at times provide an employer with a windfall setoff from his backpay obligation. I, as did the court in Hunter, find this choice to be
illogical and unfair. Moreover, the majority's policy is directly in conflict with the Gullett
Gin Court's expressed rationale which details the basis for its rejection of the employer's
argument that under the experience-rating record formula it will be prejudiced.
We doubt that the validity of a back-pay order ought to hinge on the
myriad provisions of state unemployment compensation laws. (citations
omitted.) However, even if the Louisiana law has the consequence
stated by respondent, which we assume arguendo, this consequence
does not take the order without the discretion of the Board to enter.
We deem the described injury to be merely an incidental effect of
an order which in other respects effectuates the policies of the
federal Act. It should be. emphasized that any failure of respondent to
quality for a lower tax rate would not be primarily the result of federal
but of state law, designed to effectuate a public policy with which it ts
not the Board's function to concern itself (citation omitted.)
340 U. S. at 365.

The majority has also concluded that "deducting unemployment compensation
from backpay awards is not inconsistent with the Mine Act 's goal of deterring illegal
conduct." Slip op. 12.
leap of logic is too vast to be ignored. In fact, it is correct to state the
opposite that adoption of a non-deduction policy is consistent with the Mine Act's goal
deterring illegal conduct. There certainly is no deterrent value in establishing a policy
whereby a violating operator may be relieved of his obligation to furnish illegally withheld
pay from a discharged worker by off-setting his obligation by the use of state funds. In
adopting a circuit wide mle of non-deductibility of unemployment benefits, the Third
Circuit concluded that "the legislative history and Gullett Gin are persuasive, that the
primary prophylactic policy ofTitle VII would thereby be better served." 721 F.2d at 85.
Recognizing that backpay awards, have a prophylactic or deterring effect upon future
discrimination the court also concluded:
the extent that a backpay award is reduced
by unemployment benefits, this purpose is diluted." 721 F .2d at 84.

625

Finally, I find it curious that the majority attempts to support its policy choice .4/
by noting that the Mine Act imposes a civil penalty upon offending operators. Slip op. 13.
I see no relevance of this fact to the issue of what constitutes an appropriate, fair
backpay award to a miner who has been illegally discharged. In commenting on the wide
breadth of relief that the Commission should require under the Mine Act, the Senate
Committee on Human Resources expressly stated "the relief provided under Section
IO[S](c) is in addition to that provided under sections 10[4](a) and (b) and 10[5] for
violations of standards." S. Rep. No. 181, 95th Cong., 1st Sess. 35 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History ofthe Federal Mine Safety and Health Act of 1977, at 623.
For the foregoing reasons I would follow the reasoning of the Supreme Court, and
the rule followed by the majority of courts, to not deduct unemployment compensation
from backpay awards. I would therefore affirm the administrative law judge.

In view of the fact that my colleagues have recently taken the unusual step of
issuing a Direction for Review, sua sponte in the matter of Secretary of Labor on behalf of
Clayton Nantz v. Nally & Hamilton Enterprises, Inc., Docket No. KENT 92-259-D
(March 15, 1993) solely in order to review this one narrow issue, I can only presume that
they are eager to provide the Secretary of Labor with the opportunity to present his views
on this important issue, an opportunity unavailable to him in this matter arising under
Section 105(c)(3).

626

Distribution
Jonathan D. Fishbane, Esq.
Roetzel & Andress
75 East Harket St.
Akron, OR 44308
for Clifford Meek
John C. Ross, Esq.
Robertson, Ross,
P.O. Box 35727
Canton, OH 44735
for ESSROC Corp.

& Pidcock

Administrative Law Judge William Fauver
Federal Mine Safety & Health Review Commission
5203
Pike, Suite 1000
Falls Church, VA 22041

627

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

20006

30, 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket Nos. KENT 91-179-R
KENT 91-185-R

v.

PEABODY COAL COMPANY

The Commission issued a decision in this matter on March 25, 1993,
affirming in part and reversing in part the decision of the administrative law
judge and remanding to the judge the issue of whether a disputed ventilation
plan provision was "suitable" to the conditions of the mines in question.
15 FMSHRC 381, 389 (March 1993). The Commi.ssion has subsequently received
from Peabody Coal Company ("Peabody") a Petition For Reconsideration and For
Stay Of Decision Pending Reconsideration ("Petition"). The Commission also
has received from the Secretary of Labor a Response To Petition For
Reconsideration ("Response").
All Commissioners have considered Peabody's Petition and the Secretary's
Response and have agreed unanimously that the Chairman may issue an order
setting forth their disposition of the Petition.
The Commission held that the Secretary bears the general burden of
proving that the disputed plan provision was suitable to the mines in
question. 15 FMSHRC at 388. Peabody's Petition requests the Commission to
that the
bears the burden of proving not only that the
disputed
provision was suitable but also that Peabody's previously
approved ventilation plans were no longer suitable. Petition at 4-7. The
Secretary's Response states that, in the present case, where he seeks to have
Peabody make changes in previously approved plans, he has no objection to
bearing a burden of proving both the non-suitability of those plans and the
suitability of the disputed plan
ion. Response at l & n.l, 3.
Upon consideration of the Petition and Response, the Commissioners have
determined unanimously that the issues raised in the Petition are best
resolved in the first instance by the administrative law judge on remand.
Accordingly, the Petition is denied.
For the Commission:

Arlene Holen
Chairman

628

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL IIIRE SAFE'l'Y AIID BEATIJ'H REVIEW COIIIIISSJ:Oif
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 1993
--sECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

.: CIVIL PENALTY PROCEEDINGS
0

v.

SPURLOCK MINING COMPANY, INC.,
Respondent

:
:

Docket No. KENT 92-380
A.C. No. 15-16592-03518

:
:

Docket No. KENT 92-419
A.C. No. 15-16592-03517

:

Docket No. KENT 92-420
A.C. No. 15-16592-03519

.
0

No. 2 Mine
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

--

:

.

CIVIL PENALTY PROCEEDINGS

0

:
:

Docket No. KENT 92-306
A.C. No. 15-12875-03556

v.
SARAH ASHLEY MINING CO., INC.,

0
0

Docket No. KENT 92-307
A.C. No. 15-12875-03557

Respondent
Docket No. KENT 92-323
A.C. No. 15-12875-03558
Docket No. KENT 92-324
A.C. No. 15-12875-03559
"a

Docket No. KENT 92-608
A.C. No. 15-12875-03561

Docket No. KENT 92-609
A.C. No. 15-12875-03562
Docket No. KENT 92-701
A.C. No. 15-12875-03563

Docket No. KENT 92-836
A.C. No. 15-12875-03565
0
0

Docket No. KENT 92-837
A.C. No. 15-12875-03566

.
Docket No. KENT 92-838
. A.C.
No. 15-12875-03567
...
. Docket No. KENT 92-889
0
0

0

0

A.C. No. 15-12875-03568

.. No. 2 Mine
629

DECISION
Appearances:

Anne T. Knauff, Esq., Office of the Solicitor,
u.s. Department of Labor, Nashville, Tennessee,
for Petitioner;
Hobart w. Anderson, President, Spurlock Mining
Company, Inc. and Sarah Ashley Mining Company,
Inc., Ashland, Kentucky, for Respondents

Before:

Judge Melick

These consolidated cases are before me upon the petitions
for civil penalties 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 ~, the "Act, 11 charging Spurlock
Mining Company, Inc. (Spurlock) with 13 violations and seeking
penalties of $1,197 for those violations and charging Sarah
Ashley Mining Company, Inc. (Sarah Ashley) with 76 violations
and seeking amended penalties-of $7,382 for those violations. 1
There is no dispute that the violations were committed
as alleged nor is there dispute concerning the Secretary's
findings of gravity and negligence under Section 110(i) of
the Act as noted on the face of the charging documents. 2
It is also undisputed that Respondents are small operators
and that they are no longer in business. In spite of this
undisputed evidence, Respondents nevertheless assert that the
proposed penalties would affect their ability to continue in
business. Clearly, however, since they are no longer engaged
in business, the proffered excuse is no longer relevant. The
financial condition of Respondents is now only an issue of
Docket Nos. KENT 92-323v KENT 92-324 0
KENT 92-608u KENT 92-609, KENT 92-701, KENT 92-836,
KENT 92-837, KENT 92-838 and KENT 92-889 were
consolidated for purposes of this decision following
hearings on September 4 0 1992v after the parties
stipulated that the evidence taken at those hearings
would apply as well to these cases.
2

Section 110(i) of the Act provides 8 in part, as

follows~

uuin assessing civil monetary penalties, the Commission
shall consider the operator's history of previous violations,
the appropriateness of such penalty to the size of the business
of the operator charged, whether the operator was negligent,
the effect on the operator's ability to continue in business,
the gravity of the violation, and the demonstrated good faith
of the person charged in attempting to achieve rapid compliance
after notification of a violation."

630

collection and while the Secretary may have to stand in
line with other creditors this is no longer an issue under
Section 110(i) of the Act.
In any event, the Commission has long held that absent
--proof that the imposition of authorized penalties would
adversely affect an operator's ability to continue in
business it is presumed that no such adverse affect would
occuro MSHA v. Sellersburg Stone Co., 5 FMSHRC 287 (1983),
aff'd 736 F.2d 1147 (7th Cir., 1984). Hobart Anderson, a
certified public accountant with a masters degree in business
administration and 15 years experience in public accounting,
testified at hearing on behalf of the Respondents. Anderson
incorporated Spurlock around 1987 and incorporated Sarah Ashley
in 1988 or 1989. They are closely-held corporations and
Anderson is president and chief operating officer of both.
Hobart Energies, Inc. (Hobart) owns 100 percent of the stock
of Sarah Ashley, Spurlock and 13 other corporations apparently
also intermittently engaged in the coal mining business, and
Anderson owns 25 percent of the stock of Hobart. Anderson
and former accounting partner David Griffith are the only
two officers and directors of all these subsidiaries. Anderson
sets corporate policy and is responsible for the management of
Spurlock and Sarah Ashley.
The financial evidence presented by Anderson primarily
consists of state and Federal corporate tax returns, unaudited
balance sheets, notices of tax and other liens, and copies of
court pleadings apparently involving litigation by creditors
against the Respondents and Hobart Anderson personally. While
this evidence in itselfv as noted by the Secretary in his
briefu may not be sufficiently reliable to provide a basis to
evaluate
impact of the proposed penalties, it is in any
event ·toe limited
scope
It is clear from the evidence in
these cases that.
relevant operating enterprise for evaluating the cr~~erion at issue must include not only Spurlock
and Sarah Ashley but also, under either an equity theory or an
alter ego theory, the individual shareholders of the larger
operating enterpriseo
o

Under applicable Kentucky law, under either theory
the following factors must be considered when determining
whether to pierce the corporate veil~ (1) undercapitalization;
) failure
observe corporate formalities; (3) nonpayment
or overpayment of dividends; (4) siphoning of funds by major
shareholders; and (5) guarantee of corporate liabilities by
major shareholders in their individual capacities. White
v. Winchester Land Development Corp., 584 S.W.2d 56 (Ky App.
1979): u.s. v. WRW Corporation, et al., No. 91-6253 (6th Cir.
Feb. 17, 1993) (1993 West Law 36152); United States v.
Daugherty, 599 F.Supp. 671 (E.D. Tn. 1984).

631

In these cases Anderson admitted that both Spurlock
and Sarah Ashley were thinly capitalized with only $1,000
of capital investment each. The record demonstrates that
this capitalization was insufficient to pay the normal
expenses associated with the operation of coal mines. In
addition, the evidence shows that corporate formalities have
been disregarded. Since 1988 there have been no regular
stockholder meetings and there has not been an accounting to
all shareholders. The evidence further shows that Hobart
Anderson is a personal guarantor on every bank loan to
Respondents, that he posted the required bonds to enable
Respondents to conduct mining operations, and that he has
personally directed the reallocation of assets, including
mining equipment between and among his network of
corporations as if they were his own.
Anderson himself concedes that no one tells him
how to run the businesses. In particular, he notes
that he makes all the decisions. about the allocation of
corporate assets and decides when and where among the
various subsidiaries to send the mining equipment. He
injected more than $100,000 from Hobart into Spurlock
for expenses and between $100,000 and $150,000 from Hobart
into Sarah Ashley
operating expenses while both companies
continued to lose money. Anderson also made the decision
for Hobart to pay Spurlock's $51,000 bank line of credit.
Anderson also transferred equipment owned by Hobart to
Sarah Ashley and Spurlock without charge. Hobart and some
of its other subsidiaries also pay expenses on behalf of
the Respondents.
percent of eleven other corporate
hearings as B&M Miningu Cross
Mining Companyu DMV
Mining Company,
Mining Companyu Little Elkhorn
Coal Companyu Oak
Coal Companyu White Cloud Ming Company 6
Ring Mining Company and Dusco. Anderson is president
operating office
all 13 corporations and has
to act on behalf of all of them"
, al'chough t.he evidence appears inconclusive
regarding
distribution of dividends to the individual
shareholders and
is no evidence that individual shareholders siphoned
corporate funds, these factors alone
do not mitigate against piercing the corporate veil in this
case because Respondents were never sufficiently capitalized
and appear
have continuously operated at a loss. As the
court held in the WRW case, to emphasize these two White
factors under the circumstances would be to hold in effect
that courts cannot pierce the veil of an insolvent corporation,
despite the fact that all other factors favor piercing the
corporate veilo

632

In addition to holding that the equities of this
case support piercing the corporate veil, it is clear that
the corporate veil should be pierced under the "alter ego"
theory, because Respondents and Anderson did not have separate
personalties. In light of the lack of observance of corporate
-formalities or distinction between the individual and the
corporations there was indeed a complete merger of ownership
and control of Respondents with Anderson personally. ~,
supra.
Thus, even assuming, arguendo, that the criterion at
issue is relevant to a mine operator already out of business,
I do not find that Spurlock and Sarah Ashley would in any
event have met their burden of proving that the proposed
penalties of $1,197 and $7,382, respectively, would have an
adverse affect on their ability to continue in business.
Accordingly, and in consideration of the representations
and documentation submitted in these cases regarding the
criteria under Section 110(i~.of tne Act, I find that the
penalties proposed are indeed appropriate.
ORDER
Spurlock Mining Company, Inc. is directed to pay
civil penalties of $1,197 within 30 days of the date of this
decision. Sarah Ashley Mining Company, Inc., i directed
to pay civil penalties of $7,382 within 30 days f the date
of this decision.

Jl\~,
J\
'
/ \t v\JL-, ~. vl\j
Gary Mellcl<:

\~

Administ~ative ~j Judge
Distribution~

Anne Knauffu Esq. Office
the Solicitor 0 U.S. Department
of Labor 9 2002 Richard Jones Roadv Suite B-201 9 Nashvilleu
TN 37215 (Certified Mail)
Hobart W. Andersonu Presidentu Spurlock Mining Co.u Inc. 9
Sarah Ashley Mining Co. 9 Inc. 0 P.O. Box 989 0 Ashland, KY
41105 (Certified Mail)
/lh

633

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

APH 0 2 19S3
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

.
.

DISCRIMINATION PROCEEDING

..

Mine No. 50

Docket No. SE 92-181-D

LAD MINING INCORPORATED, LARRY :
FlYNN AND RONALD CALHOUN,
Respondent

PARTIAL DECISION PENDING FINAL ORDER

Appearances:

Before:

Gretchen M. Lucken, Esq., Office of the solicitor,
u.s. Department of Labor, Arlington, Virginia,
for Petitioner;
Michael w. Boehm, Esq., and Thomas s. Kale, Esq.,
Spears, Moore, Rebman and Williams, Chattanooga,
Tennessee, for Respondent.

Judge Barbour
STATEMENT OF THE CASE

This case involves a discrimination complaint filed by the
Secretary of Labor ("Secretary") on behalf of Jerry Lee Dotson
pursuant to Section 105(c) (2) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. §815(c) (2) ("Act" or "Mine Actn).
The Respondents are Larry Flynn, Lad Mining, Inc. ("Lad") and
Ronald Calhoun. The essence of Dotson's complaint is as follows:
(1) that Dotson was working at Mine No. 50; (2) that the
operator for whom Dotson was working went out of business and
closed the mine; (3) that shortly, thereafteru the mine reopened
under a new operator 1 Lad Mining,Inc., and that Larry Flynn, the
owner
Lad, and Ronald Calhoun, the president of the company
that leased coal rights to Lad, refused to hire Dotson to
continue working at the mine because of Dotson's protected
activity and in violation of Section 105(c) (1) of the Act. 1

Section lOS(c)(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere
with the exercise of the statutory rights of any
miner, representative of miners or applicant for
employment in any coal or other mine subject to this
(continued ••• )

634

Dotson seeks "reinstatement" to his former position as a
miner, back pay with interest, all employee benefits lost because
of the refusal to hire, and compensation for economic damages
resulting from the refusal to hire. Dotson also seeks a cease
and desist order barring the Respondents from further
discriminatory conduct against Dotson and other employees, and
expungement from Dotson's records of all references to the
circumstances giving rise to the failure to hire. In addition,
the Secretary seeks assessment of a civil penalty against the
Respondents for their alleged violation of Section 105(c) (1) of
the Act. Tr. I 5, 11. 2 A hearing on the merits of the claim of
discrimination was held in Chattanooga, Tennessee. Helpful
post-hearing briefs have been filed by counsels.
COMPlAINANT'S CONTENTIONS

At the commencement of the hearing, counsel for the
Secretary outlined the case she intended to prove on Dotson's
behalf. According to counsel~ the evidence would show that prior
to working at Mine No. so, Dotson worked at Mine No, 15, where he
made protected safety complaints to the operator, Lonnie
Stockwell, about conditions at the mine. 3 The evidence would
l( ••• continued)
(Act] because such miner, representative of miners or
applicant for employment, has filed or made a
complaint under or related to the [Act), including a
complaint notifying the operator or the operator's
agent,or the representative of miners at the ••• mine of
an alleged danger or safety or health violation in a
coal or other mine or because such miner,
representative of miners or applicant for employment
is the subject of medical evaluations and potential
transfer under a standard published pursuant to
section [101] of this (Act] or because such miner,
representative of miners or applicant for employment
has instituted or caused to be instituted any
proceeding under or related to this (Act] or has
testified or is about to testify in any such
proceeding, or because of the exercise of such miner,
representative of miners or applicant for employment
on behalf of himself or others of any statutory right
afforded by this [Act).
30

u.s.c. §815(c) (1)
2

During the course of the hearing I determined that evidence
relating to restitution issues should be deferred pending my decision with
respect to whether the Respondents violated Section lOS(c)(l). Tr. I 94-95;
Tr. II 211. Accordingly, this partial decision treats only the issue of the
alleged violation.
3

Counsel maintained that Stockwell was a contractor-operator of
Tennessee Consolidated coal Corporation ("TCC"), that TCC controlled the coal
(continued ••• )

635

further show that Dotson also complained to the Mining
Enforcement and Safety Administration ("MSHA") about conditions
at the mine, and subsequent to his complaint, MSHA inspected the
mine and issued citations and orders.
According to counsel, when Dotson complained to Stockwell
about conditions at the mine he was told either to mine in the
face of the conditions or to quite, and he quite. Tr. I 8-9. As
a result, Dotson filed a discrimination complaint against
Stockwell alleging that he had been subjected to a discriminatory
discharge. However, a few days after filing the complaint he
changed his mind and withdrew it. Id.
Counsel stated that shortly thereafter Dotson was hired by
Alfred Meeks to work as a miner at Mine No. 50. Meeks, like
Stockwell, was a contractor-operator of TCC.
Counsel maintained
that about one week after Dotson was hired, Calhoun went to Mine
No. 50 and told Meeks that Dotson was a troublemaker and to get
rid of Dotson. A few days later Calhoun returned and told Meeks
that he, Calhoun, would arrangea meeting between stockwell and
Meeks so that stockwell could tell Meeks about the trouble that
Dotson had caused at Mine No. 15. Tr. I 9. Meeks declined the
offer, and Dotson continued to work at Mine No. 50.
Counsel further stated that approximately six months later,
Meeks went out of business and closed Mine No. so. Approximately,
one week later, Larry Flynn reopened the mine under the name of
Lad Mining Incorporated and as a contractor-operator of TCC.
Flynn hired all of the miners who previously had worked at Mine
No. 50 with the exception of Dotson and another miner who had an
attendance problem. Tr. I 9. Counsel asserted that Dotson was
not hired because of
protected activity while at Mine No. 15
and that Lad~ Flynn and Calhoun were jointly and severally
respons
for violating Dotson 1 s Section 105(c) (1) rights.
RESPONDENTS' CONTENTIONS
Counsel for t.he Respondents answered that the Respondents
not discriminated against Dotson and that, in any event, the
Secretarygs case was based on several fallacious assumptions.
According to counselu contrary to the Secretary 9 s contention,
when a mine in the area closed and changed owners it was not a
common practice for every miner who worked at the mine prior to
it closing to be hired by the new operator. Rather, operators
went through an application process and hired only those whom

3 ( ••• continued)
rights, which Stockwell leased from TCC, and that although Stockwell was the
titular operator of the mine, TCC'e president, Ronald Calhoun, also, had
control and influence over the operation of the mine in that he made frequent
visits to the mine and oversaw its production and coste. Tr I 8-9, 11.

636

they needed. Further, Calhoun did not control hiring and firing,
as shown by the fact that after Calhoun supposedly told
operators not to hire Dotson, Dotson was hired by Meeks.
Moreover, to accept the Secretary's position would be to accept
that Dotson had a vested right to be hired by Flynn at Mine
No. so, when, in fact, he did not. Flynn, as was his right,
employed a standard method of hiring and filled positions as he
needed thBm. The fact that Flynn had no need to hire Dotson did
not suggest unlawful discrimination on Flynn's part.
THE SECRETARY'S CASE

Jerry Lee Dotson
The Complainant was the first to testify. Dotson stated
that he had worked as a miner since 1975o During that time, he
had engaged in a number of different jobsf including operating
continuous mining machines, shuttle cars 1 roof bolting machines,
and tractors. He estimated that he had worked for a dozen
operators in the area of Tennesseewhere he lives-- the Whitley
Mountain area.
From 1985 through January or February 1991, he worked at
Faith Coal Company's ("Faith") No. 15 Mine. At that mine, he did
a number of different jobs, including running a scoop, a roof
bolting machine, a cutting machine and general maintenance work.
Tr. I 20-21.
Dotson stated that Lonnie Stockwell was the president of
Faith. Tr. I 101. Dotson described Stockwell as a contractoroperator of TCC. Tr. I 20. Dotson understood that Stockwell
leased the No. 15 Mine from TCC. Tro I 101.
Ronald Calhoun
the president
TCC, and Dotson described
·the relationship of Stockwell and Calhoun as he had observed ito
He stated that Calhoun °1 guite often 11 (Leo u more than two times a
week) was at the mine. Tr. I 21. According to Dotson, Stockwell
reported the mine 1 s daily production to Calhoun and informed
Calhoun of any conditions that would cause a decrease
production
Dotson reported Stockwell as saying 7 g~When IJJ:r
Calhoun comes . . . if you don°t run coal he gets on you."
Tr. I 23.
o

0

Dotson also described the events that he believed had led to
differences with Stockwell and Calhoun. He stated that in
December 1990 or January 1991, there were safety and managerial
problems at the No. 15 Mine. Miners were working in what had
been a sealed off area. In addition, some taxes were not being
withheld from the miners' pay checks and FICA taxes were not
being paid. Tr. I 24, 101, 159. According to Dotson, these
problems lead to a strike. Tr. I 24. In the negotiations to end
the strike, Calhoun represented management.

637

Dotson stated that during the strike, and in front of other
miners, he told Calhoun, "[I]f you don't want to run these mines
halfway right • • . get out of them and let somebody in here that
will run them right because they will run." (He claimed that when
he spoke to Calhoun about "running the mines right," he_was
referring to working in the previously sealed off area and to
withholding taxes. Tr. I 25-26.) Dotson described Calhoun's
reaction~ "He didn't like it.
He gets red faced.
[H]e looks
like he's got tobacco in both jaws. He could have bit a twenty
penny nail in two that day." Tr. I 26.
However, Dotson agreed that Calhoun had played a positive
role ending the strike: that Calhoun talked to miners on the
picket line, listened to their complaints about the way they were
being paid, agreed that the miners were justified in striking,
suggested they all talk to Stockwell to resolve the matter, and
told Stockwell that he needed to pay the men right and give them
the pay records they needed. Tr. I 104.
After the strike, in February 1991, Stockwell again sent the
miners to work in the area that had been sealed off. According
to Dotson, the foreman did not want to work in the area because
it was so dangerous. Dotson described being sent into the area
as equivalent to "taking a gun and putting it up to somebody's
head and pulling the trigger." Tr. I 28. Because of the danger,
Dotson called MSHA Inspector Larry Anderson and told him that
stockwell was "going to get somebody killed." Tr. I 29. This
lead to an MSHA inspection of the mine on or about February 6.
Tr. I 28, 105. In turn, the inspection led to citations and
orders being issued against Faith and to a criminal investigation
of Stockwell, an investigation in which Dotson was called to
testifyo Tro I 30-40. Dotson believed that somehow &&the word
got outu~ and both stockwell and Calhoun learned that he had made
the safety complaint to MSHA that triggered the inspection.
Tr. I 110-112.
On or about February 18, 1991, Dotson was working under what
he believed were bad roof conditions" Stockwell was in the mine
and Dotson asked him for some jacks or timbers to support the
roof" Stockwell did not respond and left the mine. Because he
got no response from Stockwellf Dotson asked the foreman, Dennis
Nunley, for the roof supports. Dotson testified that Nunley
answered that if Dotson didnet like the job he should either
leave or do another job. Tr I 40-41. When he came out of the
mine at the end of the shift, Stockwell asked Dotson to stay and
Stockwell, in front of Nunley and some others, asked Dotson what
the problem was? Dotson described his safety concerns and the
group argued with Dotson over whether or not the mining practice
that lead to the need for the additional roof supports was
permissible under the mine's approved roof control plan.
Tr. I 46-47. Stockwell told Dotson that he did not have the plan
at the mine, and Dotson went home. Tr. I 47.

638

The discussion resumed when Dotson returned to work the
following morning. Finally, according to Dotson, Stockwell told
him, "either do it the way we've always done it or • • • go to
the house," meaning that Dotson should quit. Tr. I 48. Dotson
described his response: "I just bowed my head and I said that the
best. thing I can do is go to the house." Id.
The_next day Dotson filed a discrimination complaint with
MSHA and against Stockwell. Tr. I 51; c. Exh 2. Dotson also
began looking for another job. A few days after he had left Mine
No. 15, Dotson met James Earl Nunley, another contractor-operator
with TCC. Dotson stated that Nunley told him if he proceeded
with his discrimination action against stockwell he would not
work again on the mountain (i.e., in any of the mines on Whitley
Mountain). Tr. I. 55, 105. On February 28, 1991, Dotson
withdrew the complaint. Tr. I 56, 58; c. Exh. 3. Dotson
explained, "I thought • • • if I dropped this thing than
everything would be hushed, I could go back to work and just let
things go • • • I just needed..t:o work. I got a family."
Tr. I 55.
Eight to ten days later, Dotson was hired to work as a
general laborer at Mine No. so. The mine was operated by Mosley
Creek Coal Company and Alfred Meeks was the owner. Meeks leased
the coal rights from TCC and was a contractor-operator with TCC.
Tr I 61-62. Mine No. so is "on the mountain."
As a general laborer Dotson performed a variety of jobs,
including operating a shuttle car, a scoop and a roof bolting
machine, as well as maintenance work. Tr. I 63. In getting the
job at Mine No. 50, Dotson did not apply for any specific job,
but rather for any job that was available. As Dotson stated, "I
needed to work. uu Tr. I 64.
Dotson was asked about the relationship of Meeks and
Calhoun. He stated that, frequently, he had seen Calhoun at the
mine. Dotson believed that Calhoun "stayed on" Meeks about
production at the mine and that Meeks had to report the mine's
production on a daily basis to Calhoun. Tr. I 65-66.
Dotson worked for Meeks from late February 1991 until
approximately August 12, 1991, when Meeks and Mosley Creek Coal
Company went out of business. Although, he did not know for
sure, Dotson believed that Meeks ceased mining because "he was
tired and [Calhoun] was on him" to produce coal and to cut supply
costs. Tr. I 66, 123. (Under the contractor-operator
relationship, TCC purchased the necessary supplies.)
Once Meeks ceased to operate Mine No. 50, Meeks told Dotson
that approximately two weeks after hiring Dotson, Calhoun had
come to the mine and told Meeks to get rid of Dotson.
Tr. I 79, 117. According to Dotson, Meeks told Calhoun that

639

Dotson was hired subject to a ninety day probationary period and
that if Dotson did not work out, Meeks would then get rid of him.
Tr. I 79. Dotson recalled that Meeks also told him that Calhoun,
subsequently, offered to arrange a meeting between Meeks and
Stockwell; so that Stockwell could tell Meeks why Dotson should
be fired. At that time, Calhoun told Meeks that Dotson-was "a
troublemaker." Id.
The same day that Meeks ceased operating Mine No. 50, Dotson
stated that he learned a new operator was going to take over the
mine. Meeks• son, Donnie Meeks, who was employed by his father
as the mine foreman, told Dotson that he should go and see the
new operator, Larry Flynn, because Flynn needed a crew for Mine
No. 50. Tr. I 67. At the time, Flynn was operating another mine
on the mountain, Mine No. 35.
on the day after Mine No. 50 closed, Dotson telephoned Flynn
and told him that he was looking for a job and that he would "do
anything." Tr. I 68. According to Dotson, Flynn did not have a
crew picked yet and he told Dotson that he would get back to him.
Tr. I 68. Dotson believed that he called Flynn on or about
Wednesday, August 14, 1991. During cross-examination, Dotson
recalled the substance of their conversation:
"He told me . • .
he was fixing to be putting some men to work. He wanted to know
what I could do • . . I told him I could do anything. And he
said • . . I'm sure going to be putting some men back to work . .
. I'll be getting back in touch with you . . • just as soon as I
can use you . . . I will get back a hold of you." Tr. I 128. 4
on Friday, August 16 when he had not heard from Flynn, he
went to Flynn's mine with three other men to talk to Flynn in
person about a job. Dotson and two of the men previously had
worked for Meeks
Mine No. 50. The person who had not worked
at Mine No. 50 was a young man with no previous mining
experience. Tr. I 69-70. Flynn gave two of the men, Dewey Layne
and Barry Mosley, applications. He told them to complete the
applications and to be at Mine No. 50 at 6:00 a.m. 0 the following
Monday to start work. Dotson maintained that it was another
story as
as he was concerned. He stated that Flynn looked at
him and said that he would have to get back to him. Tr. I 69-70.
(Dotson further stated that the young man with no mining
experience was never considered by Flynn for a job.)
Dotson was
not given any explanation as to why he was told this, nor did he
ask. Tr. I 158.

4
This version of the conversation was more expansive than the one
reported to the MSHA investigator on October 8, 1991. At that time, Dotson
reported that he had called Flynn and asked him about a job and that Flynn had
stated that he would be getting right back to Dotson. c. Exh 4 at 4.

640

Dotson stated, he was certain that during the discussion
with Flynn he did not say anything to Flynn about wanting to only
work at one job, as a roof bolter. Tr. I 70. Rather, he told
Flynn that he would do anything. Tr I 72. However, he recalled,
Flynn asked him what positions he had held when he worked for
Meeks· and that he had told Flynn he had run a roof bolting
machine. Tr. I 131.
Flynn began operating Mine No. 50 on Monday, August 19.
Tr. I 128. For the first two weeks that Mine No. 50 was in
operation under Flynn's direction, Dotson worked as a security
guard near the mine. Dotson stated that he had been hired by the
county sheriff's department to guard some equipment that was the
subject of a legal dispute between TCC and a bank holding a lien
on the equipment. See Tr. 73. During this time, Dotson
maintained that when he would see Flynn, he would tell Flynn he
needed work and would do anything. Id. Flynn never offered
Dotson a job.
According to Dotson, Flynn hired all of the other miners who
had worked at Mine No. 50 for Meeks, except Dotson and Davey
Johnson, who had a bad absentee record. However, not all of the
miners who had worked for Meeks were hired right away. Dotson
stated that Hank Lawson, a roof bolter, first worked for another
operator before Flynn hired him. Tr. I 76, 132. In addition,
two others, Johnny Hamby and Ricky Burgan also were hired after
working as miners for someone else. Tr. I 76. 5
Dotson recalled that after failing to get employment with
Flynn he continued to visit other mines on the mountain in order
to find work. During one of these visits he happened to see
Henry Harvey standing by the mine entrance talking to the
operator of the mineo Dotson asked the mine operator about jobs
the mine operator said that he had none available. Later, in
November or December 1991, Dotson again saw Harvey at the post
office. As Dotson remembered it, Harvey said that when he had
seen Dotson at the mine he knew Dotson was wasting his time, that
the operator had told Harvey that he could not hire Dotson, that
everyone knew about his troubles with Stockwell. Harvey knew
that somebody had 01 put the word out" on Dotson. See Tro I 83Q
85-86.

5

Dotson maintained that it was a common practice on the mountain
for a new operator to hire the crew that had previously worked in the mine.
His opinion was based on "common sense." "(IJf you've got good miners there
and their record speak for theirself, they know the mines, they know the
operation, they know the top, you'd be a fool not to keep these same men."
Tr. I 145. However, he could not think of an occasion when a new operator
came in and hired all of the previous miners. Tr. I 148.

641

Dotson stated that after he was not hired by Flynn, he
continued to look for a job on the mountain and that he visited
the eight to ten mines located there. For several months he was
unable to get a job. In December 1991, he was offered a job at
Mine No. 30, but he turned it down because of his concer~ that
the mine was not safe. Tr. I 135. 6
Dotson's believed that because of his safety complaints to
Stockwell and because it had become known that he requested the
MSHA inspection at stockwell's mine, Calhoun had, in effect,
blacklisted him on the mountain and that Flynn and Lad in denying
him employment, were complying with Calhoun's wishes that he not
be employed because of his protected activity.
ALFRED MEEKS, JR.

The Secretary next called Alfred Meeks, Jr. to testify.
Meeks stated that prior to going out of business on August 12
or 13, 1991, he had worked for·27 years in the mining industry
and that for 18 or 19 of those years he had been associated with
TCC, either as an employee or as a contractor-operator.
Tr. I 177. Regarding Mine No. so, Meeks testified that he was
asked by Calhoun if he wanted to operate the mine and ultimately
he became the operator under a contract arrangement with TCC.
Tr. I 177-178.
(Prior to operating Mine No. so, Meeks had
operated two other mines as a contractor-operator for TCC.
Tr. I 202-206.) It took several months for Meeks to get Mine No.
50 to the point where production could begin and during this time
TCC paid all of Meeks' expenses. Once mining began, TCC paid all
of Meeks' costs and Meeks received a salary. TCC purchased all
of the coal that Mine No. 50 produced. Tr. I 213-214.
Meeks described Calhoun as being very involved in the
running of Mine No. 50. According to Meeks, Calhoun decided in
which direction to mine coal and Calhoun was constantly concerned
about increasing production. Tr. I 179-181. Calhoun,
frequently, would come to the mine and would ask how many trucks
of coal had been loaded and what were the mining conditions. In
additionv Calhoun was concerned that Meekse supply costs were too
high. Tr. I 182-183, 190-191, 216-217. Meeks understood that
TCC had a contract requiring it to provide coal to TVA. He also
understood Calhoun to believe that if TCC was to survive
economicallyp Mine No. 50 had to be a productive mine.
Tr. I 218.

6

Dotson also stated that he turned down the job because he was
advised by "his lawyer" not to go back to work on the mountain. Tr. I
140-141. Dotson's testimony regarding the advice is confusing. It seems to
have been given after he declined the offer. It also appears that the advice
was based upon events unrelated to this case. Tr I. 153-156.

642

Despite Calhoun's concern with production and cost, Meeks
testified that he, Meeks, was solely responsible for hiring and
firing at the mine. Tr. I 231. Meeks hired Dotson on
February 28, 1991. Dotson was hired to operate a roof bolting
machine and to do anything else that Meeks needed him to do.
Meeks explained that he would not hire a person to do only one
job because "they ha[ve] to pitch in and do other jobs." Tr. I
192. Thus, while working at Mine No. 50, Dotson not only
operated a roof bolting machine, he also ran a scoop, cleaned the
belt line, hung ventilation curtains, and "did anything that he
was asked to do.u Id. Meeks described Dotson's skills,
attendance and attitude as "excellent." Tr. I 193.
Turning to his conversations with Calhoun involving Dotson,
Meeks stated that when he told Calhoun that he had hired Dotson,
Calhoun 11 said • • . Dotson is nothing but a 'GDI troublemaker
(and that I] had better get rid of him." Tr. I 193. Meeks
testified he responded that Dotson was on a 90-day probationary
period and if he caused Meeks trouble during that time, Meeks
could let him go. Id.
Meeks stated that this conversation
occurred about one week after he had hired Dotson. Tr. I 194,
221. Meeks was positive the conversation did not occur during
labor trouble at another mine and that the conversation did not
involve a strike at another mine. Tr. I 194.
Meeks also stated that he had a second conversation with
Calhoun concerning Dotson. Meeks testified that a few days later
Calhoun came to the mine and told Meeks that Stockwell would come
to the mine and that Meeks could talk to Stockwell and find out
from stockwell "what kind of a man • . . Dotson was." Tr. I 194,
221. HoweverQ Meeks stated that he was not interested in talking
to Stockwell. Tr. I 194-195. At the time, the only person Meeks
about
conversations with Calhoun was his son~ Donnie
Meeksu
section foreman at Mine No. 50. Tr. 195-196. Calhoun
did not raise the subject again with Meeks and Dotson remained
employed at Mine No. 50 until Meeks ended the operation. Tr. 221.
Meeks terminated mining activity on or about August 13u
and day
just had
enough." Tr. I 196. Meeks testified when he shut down he told
Calhoun that a 91 good bunch of men" had worked for him and that
Calhoun responded that he wanted to get them all back to work.
Tr I
198
1991, because he was ~tired of constant harassment day
out for more production and to cut supply costs . . . I

o

o

o

DONNIE MEEKS

The Secretary subpoenaed Donnie Meeks. Donnie Meeks stated
that in February 1991, while he was acting as foreman at Mine
No. 50, his father told him that Calhoun had said that Dotson had
caused trouble and his father had asked him to keep an eye on
Dotson in order to see what kind of an employee he was.

643

Tr. I 236. He confirmed his father's testimony that Dotson
worked as a roof bolter and that he also did anything else that
needed to be done. Tr. I 236.
After his father went out of business, Donnie Meeks stated
that_he spoke with Flynn over the telephone and gave Flynn the
names of all of the employees at the mine, including Dotson, and
told Fly~n what they could do. As he recalled, he told Flynn
that Dotson could operate, among other things, a roof bolting
machine, a shuttle car and a scoop. Tr. I 238-239.
However, Donnie Meeks confirmed that not everyone who had
worked for his father was hired by Flynn. Davey Johnson, who had
an absentee problem, was not hired and Johnny Hamby and Ricky
Burgan were not hired immediately.
(Donnie Meeks did not state
why Hamby and Burgan were not hired when Flynn commenced
operation of the mine.)
Donnie Meeks also recalled that Flynn brought two miners
with him, Johnny Jones and Buck Harris. Harris was employed as a
roof bolter.
(In addition, Harris was authorized to act as a
mine foreman. He could fill-in as mine foreman if Donnie Meeks
were sick. Tr. I 248.) Jones was employed to do general
maintenance. Tr. I 240-241. Harris came with Flynn the day
Flynn began mining. Jones came approximately one month later.
Tr. I 242. Donnie Meeks also stated that a miner named Jerry
Boston came to work at Mine No. 50 from one of Flynn's other
mines, but that too was later. Id.
Donnie Meeks gave his opinion that when hiring a roof
bolter, it is advantageous to hire someone who knows the roof and
is familiar with the mine. Tr" I 243-244"
lBtENRY HARVEY

The Secretary also subpoenaed Henry Harvey to testify.
Harvey stated that he had worked as a miner for 27 years, 17 of
which were with TCC. During his mining career, he had occasion
to supervise Dotson. He described Dotson as a good worker, who
never missed 2 day and who always did any job asked of him.
Tr. II 8-10. Harvey stated that in October or November 1991, he
worked at a mine operated by James Earl Nunley and that he and
Nunley were s·tanding together when Dotson pulled up in the mine
parking lot. Harvey assumed that Dotson was looking for a job
because when someone comes to a mine that is usually why.
Tr. II 12-13
Nunley said to Harvey uv[I]t won't do him any
good." Tr. II 11.
In January 1992, Harvey saw Dotson at the post office. He
asked Dotson if Dotson had asked Nunley for a job that day?
Dotson responded that he had and that Nunley told him that he did
not need any miners. Harvey responded that this was strange

644

because Nunley had hired people after telling Dotson that he did
not need anybody. Tr. II 15-16. Harvey added, "I told Jerry, in
my op1n1on, it looked like somebody had put the word out on him
not to hire him." Tr. II 16-17.
RESPONDENTS' CASE
LARRY FLYNN

Larry Flynn, the forty-nine-year-old president of Lad
Mining, Incorporated, was the first person to testify for the
Respondents.
Flynn stated that Lad was formed in July 1987.
Since that time he had been a contractor-operator of TCC and had
constantly operated Mine No. 35. Also, there had come a time
when he became the operator of Mine No. 50, and Flynn described
how that happened. 7
On approximately the same day that Meeks ceased mining,
Flynn met Calhoun who told him about Meeks' decision to shut
down. Calhoun asked Flynn if.he would be interested in taking
over the operation? Flynn responded that he would have to look
at the mine first.
Tr. II 51. There was no discussion of
Dotson, whom Flynn had never met and did not know. Tr. II 52.
Flynn went to Mine No. 50. After he had examined it, he met
Donnie Meeks who asked if Flynn were going to take over the mine?
Flynn stated that he was not sure, that he would have to talk to
Calhoun. Flynn stated that Donnie Meeks responded he would like
to work for Flynn as a foreman if Flynn decided to operate the
mine. Tr. II 55. Flynn told Donnie Meeks that he had heard good
things about him and that he would give him a job if he decided
to run the mine. Donnie Meeks saidu 01 I? 11 send you some more
people
you take
mine over. 00 Id.
Flynn a
stated that he
not recall a telephone
conversation with Dotson on that date regarding Dotson's desire
for any type of job should Flynn operate Mine No. 50. Tr. II 62.
Subsequen·tly"
t:.o
Mine No. 50 and on
approximately Friday, August 16 he called Donnie Meeks and asked
him to come to ·the mine ·the next day 'co help get ·the mine ready
to reopen.
same Fridayv Dotson, Dewey Lane and Barry Mosley
came to Mine No. 3 5 to speak 'irJi th
They asked if
were
going to reopen Mine No. 50. When Flynn responded affirmatively,
they asked if he needed miners and Flynn said that he dido
According to Flynnu
asked the three what they could doo
Dotson asked Flynn for a roof bolting job. Flynn stated that he
told Dotson he already had roof bolters, that he did not need any
more, but that if he did, he would be in touch with Dotson.
7

Flynn no longer operates Mine Noo 50.

645

Tr. II 56-57. 8
(Flynn was asked about the basis for his
recollection of the meeting, and he testified that shortly after
the commencement of this discrimination action he had spoken with
Dewey Layne about what had transpired. He said to Layne, "I
don't remember for sure and I want to know everything I said to
[Dotson]." Tr. II 63. Flynn's testimony thus reflected what
Layne had told him. Tr. II 63-64.)
Flynn explained that he had decided to take a roof bolter
named Bradley Shipley to Mine No. 50, as well as one named Buck
Harris. Tr. II 57, 59.
(As it turned out, Shipley never showed
up to work at Mine No. 50 (Tr. II 59) and of the two, the sole
roof bolter who went to Mine No. 50 was Harris.)
According to
Flynn, three months before the Mine No. 50 situation arose, he
had discussed with Calhoun the possibility of opening a different
mine and at that time Harris had asked if he could work at the
other mine as a roof bolting machine operator? Flynn stated that
the mine he was interested in opening was near Mine No. 50 and
that both mines were closer tQ.Harris' home than was Mine No. 35.
Tr. II 57-58. Harris was a qualified roof bolter as well as a
mine foreman. The advantage of employing a person with foreman's
papers was that mining could continue if the regular foreman was
for some reason unable to work. Tr. II 59.
Flynn began mining on Monday, August 19. When Shipley did
not report for work, Flynn needed to hire another roof bolter.
(Flynn maintained that unbeknownst to him, Shipley had been on
layoff when he was hired and that he had been called back to
work. Tr. II 115.) Flynn stated that the choice was then
between Dotson and Hank Lawson, both of whom had worked for Meeks
when he ceased operation. Because he did not know either man,
Flynn asked Donnie Meeks about them. According to Flynn, Donnie
:Meeks sai6 tha·t both were good workers. Flynn then asked who was
·the bes'c J and. Donnie lllleeks said that Lawson was and Flynn hired
Lawson. 'I'r. II 60-6L 9
Flynn acknowledged, however, that he
had not told the MSHA investigator about this conversation with
Donnie Meeks. Alsou he did not mention the conversation when
Dotson°s counsel deposed him in April 1992. Tr. II 121-122. 10

Flynn stated that he did not give an application to Dotson because
he only gave applications to people he was going to hire.
Tr. II 138.
9
Flynn stated that he told Dotson that he would hire him as a roof
bolter for the second shift when he started one. However, Flynn never heard
from Dotson again about employment. Tr. II 113.

10

Donnie Meeks testified on the first day of the hearing and was
excused as a witness after the Secretary rested. Counsel for the Secretary
wanted to recall Donnie Meeks as a rebuttal witness concerning Flynn's
testimony that Donnie Meeks had recommended Lawson over Dotson. However,
counsel decided not to do so after a telephone conversation with Donnie Meeks.
(continued ••. )

646

Flynn was asked whether it was an usual practice to hire all
previous workers when a mine was reopened? Flynn stated that he
had never heard of such a thing, that he had no knowledge of an
entire crew being rehired. He testified that when he reopened
Mine No. 35 he had hired only one person from the previous crew.
Tr. II 68. However, he confirmed that he brought only two of his
employees to Mine No. 50 -- Buck Harris as a roof bolter and
Jerry Boston as a belt man -- and that other than these two, the
rest of the men he used at Mine No. 50 previously had worked
there. Tr II 99. Whether he hired all of the previous workers
except Dotson and Davey Johnson, Flynn could not say.
Tr. II 100.
Flynn described a very different relationship with Calhoun
than had Meeks. The Calhoun depicted by Flynn did not come to
the mine on a regular basis. He might come once or twice a week,
or he might not come for two weeks at a time. He also telephoned
infrequently. Tr. II 81-82. Flynn maintained that he did not
report mining conditions to <;:~lhoun on a regular basis and that
although, he completed production reports he did not know if
Calhoun reviewed them. Tr. II 83. However, Flynn recalled
Calhoun telling him that Calhoun wanted Mine No. 50 to be a big
producer of coal. Tr. II 82. According to Flynn, it was Calhoun
who pressed for the addition of the second shift. As Flynn
described it, Calhoun "said they needed the coal bad."
Tr. II 84.
Flynn also stated that Calhoun never attempted to influence
his decisions regarding hiring and firing, that Flynn had never
even recommended someone that he might hire. He further stated
that before this discrimination case was brought he had never
discussed Dotson with Calhouno Tro II 68-69o Flvnn claimed that
until he was deposed in connection with this case-he had never
heard of t.he discrimination complaint that Dotson filed against
Stockwell and Faith Coal Company" Tro II 72o
ROY CALHOUN

Roy Calhoun, president and chief executive officer of TCC,
was the last witness for the Respondentso Calhoun explained that
TCC has 15 to 18 million tons of coal reserves in southeastern
Tennesseeu all but approximately 5 million of which are leased
from USX Corporationo TCC does not mine coal, but rather
contracts with others to mine its reserveso Tro II 145-147o
Calhoun also explained that under the contractor-operator
arrangement between TCC and the actual operator, the operator has
full responsibility for everything relating to the operator's

lO( ••• continued)
She reported that Donnie Meeks stated that he had no recollection of the
conversation. Tr. II 208.

647

employees, including hiring and firing. Further, the
contractor-operator, also, is responsible for submitting all
required plans to MSHA, except that TCC supplies an up-to-date
map of the mine workings. Because TCC leases the coal reserves,
it makes the decisions regarding the direction of mining so that
future mining of the reserves will not be jeopardized. Tr. II 152-154.
Calhoun stated that while it was not his practice to go to
all of the mines of TCC's contractor-operators on a daily basis,
he did go to Mine No. 50 more often than to the others. Indeed,
Calhoun acknowledged that he went to Mine No. 50 "fairly
regularly"e because the mine was under development and needed to
be looked at more closely than the others. Tr. II 155-156, 170.
Still, he maintained, he did not go daily to the mine nor did he
call Meeks every night at home. Tr. II 156.
Calhoun's version of the strike at Mine No. 15 differed from
Dotson's. Calhoun stated that_the •trike was solely about
economic issues -- Stockwell was not showing that he was
withholding FICA taxes on the miners' pay slips and he was not
paying additional money that he had promised the miners for
increased production. Tr I I 158-160. Calhoun was advised of
this by miners on the picket line, including Dotson, and he went
to discuss the situation with Stockwell and was successful in
resolving the matter. Tr. I I 159. (Calhoun made no mention of
any complaints regarding safety or of any discussion with Dotson
alluding to safety.)
After leaving Mine No. 15, Calhoun stated he went that same
day to Mine No. 50 where Meeks asked him about the strike.

Calhoun testified that he told Meeks what he knewu but that when
Meeks persisted
inquiring; Calhoun told him if he wanted to
](now more about what was going onr he (Calhoun) would arrange a
meeting between Stockwell and Meeks. When Meeks then asked who
was on the picket line, Calhoun mentioned, Dotson and "a bunch
more." Tr. I I 162. Calhoun stated that he had no recollection
of Meeks telling him that he had hired Dotson. Tr. II 186.
Calhoun denied ·that he had ever told Meeks to fire or to get rid
of Dotson or that he had ever told Meeks that Dotson was a
troublemaker. Tr. II 162v 186-187.
Calhoun also claimed that he never discussed Dotson with
Further 9 he stated that his e9 recommendations 11 to Flynn
concerning who should be employed consisted of advising Flynn
that someone wanted to work and saying something to the effect
that 11 [i]f you have anything, there's a man that's available."
Tr II 166.
Flynn.

With regard to his knowledge of Dotson's contacts with MSHA,
Calhoun claimed that the first he knew of the MSHA "raid" on Mine
No. 15 (i.e., the "blitz" inspection of February 6, 1991, that

648

Dotson requested and that resulted in criminal charges being
brought against Stockwell) was when his deposition was taken for
this discrimination proceeding in April 1992. Tr. II 162. He
acknowledged, however, that it was "unusual" that he did not know
sooner. Tr. II 199. Calhoun claimed that if he had knpwn, he
probably would have closed the mine. Tr. II 192.
Further, Calhoun claimed that until the MSHA investigator
took his statement with respect to this case, he had no prior
knowledge of Dotson's previous discrimination complaint against
Stockwell. Tr. II 163.
Calhoun maintained that it was not a common practice for a
new operator to hire all miners, previously employed at a mine
and that he knew of no instance where a new contractor-operator
hired 100 percent of the previous miners. He stated that while a
new operator usually would check with the previous operator and
would hire some of the previous miners, if he operated another
mine, the new operator usually"".woulc;l bring with him some of the
miners from the other mine. Tr. II 164. As Calhoun explained, a
new contractor-operator is under no legal obligation to hire the
previous miners, and Calhoun did not believe that a previously
employed miner had a legitimate expectation to be hired, even if
he had a good work record and was recommended by his old foreman.
Tr. II 191. Calhoun stated, "I think . • • a coal mine operator
ought to have his right to hire who he wants to for his mine.
He's the one paying them. He's the one that works them and he
should be the one that makes that decision." Tr. II 192.
APPLICABlE CASE LAW

In order to establish a prima facie case of discrimination
under Section 105(c of the Act 1 a complaining miner bears the
burden of production and proof to establish 1 (1) that he engaged
protected activity and (2) that the adverse action complained
of was motivated in any part by that activity.
Secretary on
behalf of Pasula v. Consolidation Coal Co. 1 2 FMSHRC 2768 (1980),
rev 1 d on other grounds sub nom.u Consolidation Coal Company v.
Marshall, 663 F.2d 1211 {3d Cir. 1981); Secretary on behalf of
Robinette Vo United castle Coal Company, 3 FMSHRC 803 (1981);
Secretary on behalf of Jenkins v. Hecla-Day Mines Corporation, 6
FMSHRC 1842 (1984); Secretary on behalf of Chacon v. Phelps Dodge
Corp.ff 3 FMSHRC 2508 (November 1981) 1 rev'd on other grounds sub
nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983).
The operator may rebut the prima facie case by showing either
than no protected activity occurred or that the adverse action
was in no way motivated by the protected activity.
With regard to establishing that the adverse action
complained of was motivated in any part by protected activity,
the Commission has acknowledged the not-infrequent difficulty the
Complainant faces in establishing a motivational nexus between

649

protected activity and the adverse action that is the subject of
the complaint when the link between the protected activity and
the adverse action cannot be supplied by direct evidence. The
Commission has stated that such "[d]irect evidence of motivation
is rarely encountered; more typically, the only available
evidence is indirect • . • 'Intent is subjective and in many cases
the discrimination can be proven only by the use of
circumstantial evidence.fi" Chacon, 3 FMSHRC at 2510 (guoting
NLRB v. Melrose Processing Co., 351 F.2d 693, 698 (8th Cir.
1965)). In analyzing the evidence, whether it be circumstantial
or direct, the Commission and its judges are free to draw
reasonable inferences. Melrose, 351 F.2d at 698.
If the operator cannot rebut the prima facie case, it may
nevertheless affirmatively defend by proving that it was also
motivated by the miners' unprotected activity alone. The
operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Company, 4 FMSHRC 1935 (1982).
The ultimate burden of persuasion does not shift from the
Complainant. Robinette, supra; See also Boich v. FMSHRC, 719
F.2d 194 (6th Cir. 1983); Donovan v. Stafford Construction
Company, 732 F.2d 954 (D.C. cir. 1984) {specifically approving
the commission's Pasula-Robinette test). See also NLRB v.
Transportation Management Corporation, 462 u.s. 393, 397-413
(1983) (where the Court approved the NLRB's virtually identical
analysis for discrimination cases arising under the National
Labor Relations Act).
COMPLAINANT'S PRIMA FACIE CASE
The Secretary claims that the evidence establishes that
Dotson engaged
protected activity in January and February
1991 when he was employed by Stockwell. According to the
Secretary Dotson's protected activities are~ (1) his complaints
to Calhoun about unsafe mining practices during the strike at
Mine No. 15, (2) his request to MSHA for an inspection of the
minep (3) his complaints to Stockwell about unsafe conditions and
practices at the mine and (4)
filing of a discrimination
complaint against Stockwello According to the Secretary 1 Flynnijs
refusal to hire Dotson
August 1991 when Flynn took over Mine
No. 50 was directly motivated by these activities. See Sec.
Br. 18-19, 31-32.
PROTECTED ACTIVITY
Reviewing each of the alleged protected activities in
sequence, I conclude the evidence establishes Dotson engaged in
protected activity while employed by Stockwell with respect to
Nos. 2, 3 and 4.

650

Dotson's Safety complaints to Calhoun

The Secretary's first contention is that Dotson engaged in
protected activity when he complained to Calhoun about safety
conditions during the strike at Mine No. 15.
I do not b~lieve
that the evidence allows a conclusion that Dotson actually made
such a complaint. While, it is clear that the strike involved
economic issues, the record does not establish that it also
involved safety issues. Dotson maintained that his statement to
Calhoun that "[I]f you don't want to run these mines halfway
right • . . get out of them and let somebody in that will run
them right because they will run" referred to both the
withholding of taxes and to unsafe working practices at the mine.
Tr. I 25-26. Howeveru the statement is general and open to
interpretation. On its face it does not clearly relate to safety
nor does the testimony regarding the context in which it was
delivered tie it to safety. Certainly, Calhoun, the only other
person who was present and who testified, did not indicate that
he understood a safety complaint had been made to him at the
time.
Indeed, he did not mention any complaint made by Dotson
nor did he indicate that he understood the strike to involve any
safety-related issues. See Tr. II 158-160. In fact, I find the
weight of the evidence to be that it did not.
Dotson's rendition of how the strike was resolved
essentially corresponds with Calhoun's. Tr II 158-160. As
Dotson himself testified, Calhoun's involvement in the strike
lead to its successful resolution, when Calhoun intervened with
Stockwell on the miners' behalf and advised redress of their
economic complaints. Tr. I 104. Even more telling, in my view
is the factu that on October 7u 1991u when Dotson filed his
discrimination complaintv he did not mention his strike-related
statement to Calhoun as a reason for the alleged discrimination.
See C. Exh. 4 at 2.
Furtherr although four days later he told
the MSHA investigator that he guessed his statement "made the man
mad at meu 11 he did not then link it with any expression of his
safety concerns.
c. Exh 5 at 9.
Dotson°~

Inspection Request

The Secretary next asserts that Dotson engaged in protected
activity when in early February 1991u he requested an MSHA
inspection of Mine No. 15 because of what he believed to be
unsafe mining practices.
Sec. Br. 20. There is no doubt that
Dotson made the request that resulted in the inspection of
Stockwell's mine. Dotson's testimony in this regard was not
disputed by the Respondents. Tr. I 29 and 105. Such a request
is protected activity under the Act.

651

Dotson 9 s Safety Complaints to Stockwell
and
Dotson°s Discrimination Complaint against stockwell

The Secretary also asserts that Dotson's safety complaints
to Stockwell in late February 1991 were protected. Sec. Br. 20.
Dotson's testimony to the effect that he complained to Stockwell
on or about February 18, 1991, regarding mining practices
resulting in the need for additional roof support was not
refuted. Tr. I 46-47. It was, of course, these complaints that
lead to the alleged order from Stockwell to either continue the
practice or "go to the house" and Dotson's resulting short-lived
discrimination complaint against Stockwell.
I accept Dotsonis unrebutted testimony concerning his
complaints to Stockwell. His testimony at trial describing his
discussion with Stockwell essentially corresponded with his
nearly contemporaneous account of the same discussion in his
discrimination complaint. See c. Exh. 2. A miner's safety
complaints when reasonable and made in good faith are protected.
Further, the filing of a complaint of discrimination is protected
activity.
I conclude, therefore, that when Dotson complained to
Stockwell and when he filed the complaint charging Stockwell with
discrimination he engaged in activity that cannot be the basis
for subsequent retaliation.
ADVERSE ACTION

Having established protected activity, Dotson must prove
that he suffered an adverse action. The adverse action of which
Dotson compla
that he was denied employment by Flynn at
No, 50 r '~c¥her:
'tool< over as the opera tor of the mine.
Dotson and
agreed that Dotson sought and was denied
employmen·c
and Lad
I credit Dotsonvs testimony that he telephoned Flynn on or
about Wednesday 9 August 14, 1991, and asked for employment.
Dotson had
of
lephone
conversation,
had none. Tr. I 67-68, Tr. II 62. In
addition approximately two months after the conversation, Dotson
t.he MSHA
t.hat he had made the call. Co Exho 5
at 4. Dotson credibly stated that Flynn said that he would get
back
Dotson, but
did not, and Dotson was never
hired.
In addition, Dotson testified that on Friday, August 16,
1991, he went to Mine No. 35 and spoke with Flynn about working
for Flynn at Mine No. 50o Tr. I 69-70. Flynn agreed that Dotson
had come to Mine No. 35 on August 16. Tro II 56-57. Although,
Dotson and Flynn gave decidedly different versions of what
transpired at the meeting, both agreed that the reason Dotson was
at the mine was to seek employment. Dotson also stated that

652

after Flynn took over operating Mine No. 50 and during the time
that Dotson was employed as a security guard, he asked Flynn for
employment whenever he would see Flynn. Tr. I 73. Flynn did not
testify regarding these contacts with Dotson and I credit
Dotson's testimony. It is clear that Dotson was anxious for work
and I find it reasonable to believe that he asked Flynn-about
employment whenever the opportunity to do so presented itself.
The record thus establishes that Dotson repeatedly sought
employment at Mine No. 50, and I so find. An adverse action is
an act of commission or omission by an operator that subjects the
affected miner or applicant for employment to discipline or to a
detriment in an employment relationship.
Secretary on behalf
of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC at 1847-48.
Failing to be hired by Flynn and Lad meant that Dotson had no
employment relationship, which was certainly a detriment, to say
the least. It is clear, therefore, that Dotson established he was
subjected to an adverse action.
Having established protected activity and adverse action,
the next question is whether Dotson, also, established that in
denying him employment, any or all of the Respondents were
motivated by his protected activity.
MOTIVATION
Dotson presented no direct evidence that he was denied
employment because he had complained about safety conditions,
requested an inspection and had filed a discrimination complaint
while he was employed by stockwell. However, as noted, the
Commission has recognized that such evidence is rarely available
to a complainant and has made clear that a finding of
discriminatory motivation may be made on
basis of
circumstantial evidence. Chacon; 3 FMSHRC at 2510.
The Commission has listed some of the more common circumstantial
indicia of discriminatory intent~ (1) knowledge of the protected
activity; (2) hostility or animus towards the protected activity;
(3)coincidence in time between the protected activity and the
adverse action; and (4) disparate treatment
the complainant.
FMSHRC at 2510.
A logical approach for analysis of a motivation question is
to accept as a starting point that something, at this point
unknown, motivated Flynn to reject Dotson as an employee and to
deduce what
was. 11 This is the approach adopted by the 8th

11
The Respondents point out, correctly, I think, that this is not a
case of an employee seeking to be rehired. When Meeks went out of business,
his employees' jobs ceased. Thus, Dotson's employment with Meeks had ceased.
Flynn was a new operator. In general, I agree with Calhoun that a new
contractor-operator is under no legal obligation to hire miners who had
(continued •.• )

653

circuit in Melrose, 351 F.2d at 698-700 1 and it is one that
courts frequently have followed.
The approach begins with the elimination of certain
motivational factors that are usually offered in these types of
cases. There is no suggestion that Dotson was incompetent, had a
record of absenteeism, had a poor safety record or that Flynn or
Calhoun had any personal animosity (i.e., extra-mining related
animosity) toward Dotson.
Dotson had been mining coal since 1975. In that capacity he
had engaged in a wide variety of tasks. After Dotson left his
job at Faith Coal Company, he was hired shortly thereafter by
Meeks. Meeks described Dotson as a man of "excellent" skills,
attitudeq and attendance, and I credit his testimony. Tr. I 193.
Afterall, it would hardly have been in Meeks's interest to employ
someone who did not have these qualities. In addition, Donnie
Meeks, who was Dotson's foreman and thus should know, described
Dotson as a "good miner" with "good" skills. Tr. I 237.
Further, Dotson's reputation as-a good, willing and reliable
worker was confirmed by Harvey, another former supervisor of
Dotson. Tr. II 9-10.
Also, there is no suggestion in the record that Flynn's
lure to hire Dotson was the result of any personal hostility.
There was no testimony that prior to Flynn taking over Mine No.
50, he and Dotson were even acquainted. Moreover, there was no
indication in the record that Calhoun had any extra mine-related
animus toward Dotson. As described in the record, Calhoun's
knowledge of and contacts with Dotson were based solely on
Dotson 1 s mining activities, first, with stockwell, and second,
\:J i th Ic1eeks
o

.1.cc
·cne :fact. :cemains t.ha:c Flynn did not hire Dotson, and
·::he search for 'che reason -.;¥hy continues with an examination of
~he customary hiring practice and a determination of whether
Flynn's failure to hire Dotson represented a departure from that
practice. If sof motivation may be suggested in the manner and
the reasons
fered for Dotson°s rejectiono

. .
d)
-' 1' • " • com:~nue

previously worked at the mine and that a coal mine operator has the right to
hire whomever he wants. There is a caveat, however -- hiring must be done
according to law and cannot be denied because of protected activity.
The right to hire or not to hire is not an absolute right, and the
Act makes very clear that it is not only miners but also applicants for
employment who cannot be discriminated against because of protected activity.
The fact that Dotson was seeking work as an applicant for employment rather
than as a miner subject to rehire, does not alter the protections afforded him
by Section lOS(c) or the fact that he cannot be denied employment solely on
the basis of protected activity.

654

Evidence regarding hiring practices by a new contractoroperator was in conflict. Dotson, who spoke from the perspective
of a miner who had worked on the mountain and for several
different contractor-operators, believed that it was just common
sense for a new operator to hire the previous crew. As_he
pointed out, these are the people who know the mine best.
Tr. I 145. Meeks' testimony supports by inference what Dotson
believed4 He stated that when he decided to shut down his
operation at Mine No. 50 he told Calhoun that "there's a real
good bunch of men working here" and that Calhoun replied "I want
to get them all back to working." Tr. I 198. Like Dotson, Meeks
struck me as an honest and forthright individual, and I believe
his account of this conversation.
Donnie Meeks' testimony, also, supports Dotson's "common
sense" theory of hiring. He stated that it would be advantageous
to hire a roof bolting machine operator who was familiar with the
roof conditions in the mine because such a person would be aware
of the mine's particular roof ,problems. He believed this to be
especially true of Mine No. 50, which had a roof fall problem.
Tr I 243-244.
Flynn emphasized that in his experience he had never known
of a situation wherein a new operator took all previous workers.
Tr. I 65-66. I do not doubt this to be a fact and, indeed, Flynn
supported his statement with several examples of situations in
which few pervious miners were hired. Tr. I 67-68. However, his
testimony in this regard is not necessarily inconsistent with
that of Dotson and Meeks. In the situations that he cited, Flynn
did not explain why previous miners were or were not hired, and,
obviously, there could be any number of reasons. Nor was
Calhoun's testimony, necessarily, inconsistent with the essence
of Dotson°s and the Meeks 0 c Calhoun explained that the new
operator will check with the previous operator and will hire some
the old employees but that he knew of no instance where 100
percent of the old employees were hired. Tr. II 164.
I do not understand Dotson and the Meeks' to have testified
that when an operator goes out of business and another operator
reopens the mine the new operator will hire all previous
employees. Dotson himself could not think of such a situation.
Tr. I 148. Rather, I understand them to have stated that it is
common for most of the miners to be hired, as indeed happened at
Mine No. 50, and I so find. Dotson's observation that the
previous miners are the ones who know the mine best, Donnie
Meek's correlating acknowledgement of roof control problems at
Mine No. 50 and the advantages of hiring miners who know the
roof, and Meek's statement to Calhoun that he had good men at the
mine and Calhoun's response that he wanted to get all of them
back to work, convince me that such was the practice.

655

That being the case, when a previous miner is not hired
while virtually all his peers are, the motive for failing to hire
the left-out miner must be explained. In other words, here,
where Flynn's failure to hire Dotson represented a departure from
the norm, the question is why?
The Respondents offer a business justification -- that
Dotson applied for a roof bolting job, that there were two roof
bolter positions available, that the positions were filled when
Dotson applied, and that when one of the hired roof bolters
unexpectedly did not show up for work, Flynn, on the
recommendation of Donnie Meeks, hired someone other than Dotson.
I conclude that this justification is not established by the
evidence and that it is pretextual. I have accepted Dotson's
testimony that he called Flynn on August 14, and asked about a
job and was told that Flynn would get back to him. I also accept
his testimony that Flynn asked him what he could do and that
Dotson told Flynn that he could do anything. Tr. I 128.
(Flynn
could not recall this telepnone conversation. Tr. II 62.) I
also believe that when Dotson went to the mine on Friday, August
16, he was asked about the jobs that he had held and that Dotson
indicated that he had run a roof bolter. Tr. I 131. However, I
do not believe that Dotson indicated to Flynn he was applying to
work only as a roof bolter. 12 such a statement would have been
self-limiting and, as Dotson explained, he needed work. Rather,
it seems likely that Dotson indicated that he would work, also,
as a roof bolter. In any event, I accept Donnie Meeks testimony
that he spoke with Flynn the day his father went out of business
and gave Flynn a list of names of the miners and a list of all
jobs that the men could do. Tr. 236. Thus, when Dotson and
Flynn met on August 16, I believe that Flynn already knew that
Dotson was not limited to operating a roof bolting machine, but,
as Donnie Meeks explained that Dotson could do ~~anything else
<chat needed to be done. 00
Flynn maintained that when Shipley, one of the roof bolters
he had hired, failed to report for work he selected Lawson over
Dotson on the bas
of Donnie Meekijs recommendation that Lawson
was the better roof bolter. Tr. II 60-61. However,! find the
credibility of this assertion undermined by Flynn's failure to

12

It is important to note that during the course of the testimony I
was struck by Dotson's sincerity and lack of guile. While I found him to be
unsophisticated and naive, I also found him to be truthful.

656

mentioned it to the MSHA investigator when he was asked why
Dotson was not hired. It is afterall, the major reason why the
Respondents now contend Dotson was refused employment.
As the Secretary rightly points out, Flynn ultimately hired
all of the previous crew except Dotson and Johnson. See Sec.
Br. 26-27. There was a legitimate business reason for not hiring
Johnson.. The record discloses none for refusing Dotson
employment.
Therefore, accepting the premise that something must have
motivated Flynn to deny Dotson employment, and the proffered
reasons for the refusal having been eliminated by the evidence
and the reasonable inferences drawn therefrom, the search for
motive must continue by analyzing other actions of Calhoun and
Flynn relating to Dotson. When these are reviewed, I believe the
conclusion is inescapable that in refusing to hire Dotson, Flynn
was responding to Calhoun's directive and was motivated, as was
Calhoun, by Dotsonfs protected.activity.
In the first place, I conclude the evidence establishes that
Calhoun was seeking to "blacklist" Dotson because of his safety
complaints to Stockwell and his, subsequent, discrimination
complaint" As I have found, Dotson engaged in protected
activity, and I believe, despite Calhoun's denials, that Calhoun
was fully aware of that activity.
The picture of Calhoun that
emerged at trial was of a person actively interested and involved
in the daily affairs of TCC's contractors as those affairs
related to production. Calhoun explained the interest TCC had in
the development and production of its contractor's mines
(Tro II 152-154} and this was especially true of Mine No. 50.
See Tr. I 179-183; Tr. II 155-156 and 170" I think that
is
fair to conclude that
a matter affected production, Calhoun
It was Calhoun, afterall, who took the lead in resolving the
strike at Mine No" 15, a resolution that allowed production to
~esume.
was Calhoun who told Flynn that he wanted Mine No. 50
t:o be a lqig producer of coal. Tr. II 82. Certainly v MSHA 1 s
~bl
" inspection at Mine No. 15v coming as it did, on the heels
of the strike, and resulting in the issuing of notices and orders
at the mine and eventually in criminal charges against Stockwell,
impacted production and must have been known almost immediately
to Calhoun. Calhoun stated that it was "unusual" that he did not

657

know of the inspection until his deposition was taken in April
1992. Tr. II 192. I find it more than unusual; I find it
incredible. Tr. II 162. Quite simply, I believe that he knew
about it, and knew soon after it happened. 13
·I also find incredible Calhoun's assertion that he did not
know about the discrimination complaint Calhoun filed against
Stockwell until the MSHA investigator took his statement
regarding the present discrimination complaint. Tr. II 163.
Again, the closeness of Calhoun's relationship with the daily
operations of TCC's contractor-operators makes it permissible to
infer, in my view, that Calhoun was well aware of Dotson's
complaint.
Being aware of these activities, activities that potentially
impinged upon the smooth operation of TCC's contractor, I
conclude that Calhoun undertook to bar Dotson from employment on
the mountain and that Flynn followed his lead. I believe that
Calhoun's animosity toward Dotson because of his safety-related
activities is shown by Calhoun's attempt to have Meeks "get rid
of" Dotson and, by his offer, to arrange a meeting between Meeks
and stockwell so that Stockwell could tell Meeks "what kind of a
man • • . Dotson was. " Tr. I 193-194, 221.
Calhoun, of course, stated that although he mentioned Dotson
to Meeks it was in the context of a response to Meek's question
concerning who had been on the picket line at Mine No. 15. I do
not discount the fact that if in fact this conversation occurred
in close proximity to the strike, the subject of the strike may
have arisen in the course of the Meeks-Calhoun conversation. It
is logical that Meeks would have been interested in the strike.
However, Calhoun 1 s denial that he ever told Meeks to fire or to
get rid of Dotson or told Meeks that Dotson was a troublemaker
rings false when viewed in the context of what must have been
calhounus animosity toward Dotson for his activities impinging
upon production at Mine No. 15. Tr. II, 162, 166, 187-186.

13

Although, I believe that Calhoun knew of the MSHA inspection on
February 6, 1991, at Mine No. 15; I do not believe that there is sufficient
evidence of record to conclude that he knew Dotson requested the inspection.
Dotson admitted his suspicions in this regard were simply -- suspicions.
Tr. I 111-113. Moreover, the Mine Act would prevent MSHA's inspectors from
divulging the name of a person requesting an inspection, and I assume, unless
proof to the contrary is offered, that MSHA complies with the law it
administers.
(There is, of course, nothing that would have prevented
Stockwell from telling Calhoun about Dotson's safety complaints to Stockwell
and Dotson's discrimination complaint against Stockwell.) Still, Calhoun's
denial of any knowledge of the inspection until he was deposed in April 1992
is patently incredible and, in my view, casts a long shadow over the
credibility of the rest of his testimony.

658

Rather, I believe Meeks 1 version of what Calhoun said to
him. As I have stated Meeks impressed me as an honest and
forthright witness. At one time he impressed Calhoun too, for
Calhoun testified that Meeks had a good reputation when he worked
for TCC and that he had considered Meeks to be a reliable
business partner for the corporation. Tr. II 173. Although,
Meeks was, subsequently, involved in a legal dispute with TCC, at
the time- the Calhoun-Meeks conversations occurred, they appear to
have been on good business terms and were working closely
together.
Given the fact that I conclude the Meeks-Calhoun
conversations occurred, essentially as Meeks reported them, and
given the fact I also conclude that Calhoun was aware of Dotson's
safety complaints and his discrimination complaint against
Stockwell; there is no other logical explanation offered or
suggested by the record for Calhoun's desire to have Meeks "get
rid of" Dotson than Dotson's protected activity.
Further, I agree with counsel for the Secretary that
Calhoun's urging that Meeks get rid of Dotson for engaging in
protected activity supports an inference that he, likewise
instructed Flynn not to hire Dotson. Sec. Br. 32. As the
evidence establishes, Flynn was subject to Calhoun's influence
and monitoring; and as I have found, his excuses for failing to
hire Flynn are otherwise pretextual.
CONCLUSION

Accordingly, I conclude that Dotson has established that he
engaged in activity protected under the Act when he complained to
Stockwel regarding safety conditions at Mine No. 15 and when he
filed a discrimination complaint against Stockwell. Further, I
conclude that Calhoun knew of these activities and was motivated
by them to have Dotson ueblacklisted" -- i.e. , to have him removed
from his job by Meeks and, failing that, to have him denied
employment by Flynn. I also conclude that Flynn and through
Flynn, Lad in denying Dotson employmentv were acting at
Calhoun°s behest and were motivated by the same protected
activities.
Final p I conclude that the proffered reasons for
Flynn 1 s failure to hire Dotson are pretextual and that the
Respondents have not established that they were in no way
motivated by Dotsonus protected activity or that they were only
motivated by unprotected activity on Dotson 1 s part.
Therefore, I hold that in failing to hire Dotson, the
Respondent 1 s violated Section 105(c) (1) of the Act.

659

ORDER

Counsels for the parties ARE ORDERED to confer with each
other during the next fifteen (15) days with respect to the
remedies due Dotson, and they are encouraged to reach a mutually
agreeable resolution of the matter. Any stipulations or
agreements in this regard shall be filed with me within the next
thirty (JO) days.
In discussing any back pay due Dotson,
counsels are requested to keep in mind Dotson's testimony that
subsequent to being denied employment at Mine No. 50, he was
offered a job at Mine No. 30, and he declined to accept the
offer. Tr I 134-137.
In the complaint of discrimination the Secretary requests
i[a]n order assessing an appropriate civil penalty against
Respondent . . . not to exceed $5o,oooo.oon. This proposal, void
as it is of any reference to the statutory civil penalty
criteria, is equivalent to no proposal. Accordingly, Counsel for
the Secretary IS ORDERED within.ten (10) days to submit a penalty
proposal supported by the Secretary's contentions with respect to
the relevant statutory criteria set forth in Section 110(a) of
the Act, 30 u.s.c. § 820(a), and counsel for the parties are
requested to confer regarding this aspect of the case during
their discussions with respect to the remedies due Dotson.
9

In the event counsels cannot agree regarding the remedies
and proposed civil penalty, they are to notify me no later than
the end of the referenced fifteen (15) day period. Counsels ARE
FURTHER ORDERED at that time to state their specific areas of
disagreement and if they believe that a further hearing may be
required on the remedial aspects of this matter, to state that as
well. Counsels
me orally, but the notification must
be confirmed
vJrit.
same day"
•~
jur
this matter until the remedial
aspects
this case are resolved and finalized.
Until such
determinations are made and pending a finalized dispositive
order r my dec is
t.his matter is not final.
In addition 7
the Respondents
held
abeyance
a final dispositive order.

j)~1 t~d £ fJ~~t?vtL_
David F. Barbour
Administrative law Judge
(703) 756-5232

660

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor, u.s.
Department of Labor, 4015 Wilson Boulevard, Suite 516,
Arlington, VA 22203 (Certified Mail)
Michael w. Boehm, Esq., Spears, Moore, Rebman and Williams, 801
Pine Street, P.O. Box 1749, 8th Floor, Blue Cross Building,
Chattanooga, TN 37401 (Certified Mail)
Thomas s. Kale, Esq., Spears, Moore, Rebman and Williams, 801
Pine Street, P.O. Box 1749, 8th Floor, Blue Cross Building,
Chattanooga, TN 37401 (Certified Mail)
fepy

661

FEDERAL IIIRB SAP'B'rY Aim HEAT.'I'H REVIEW COBBISSIOH
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 5 1993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

v.

CIVIL PENALTY PROCEEDINGS
:

Docket No. SE 92-393
. A.C.
No. 40-02045-03574
.
0

S & H MINING, INCORPORATED,
Respondent

:
:

Docket No. SE 92-394
A.C. No. 40-02045-03575

.
Docket No. SE 92-395
.. A.C.
No. 40-02045-03578
.
.

:

.

S & H Mine No. 2

DECISION
Appearances:

Darren L. Courtney, Esquire, Office of the
Solicitor, u.s. Department of Labor,
Nashville, Tennessee, for the Petitioner;
Imogene A. King, Esquire, Frantz, McConnell
and Seymour, Knoxville, Tennessee, for
Respondent

Before;

Judge Melick

These consolidated proceedings are before me upon the
petitions for civil penalty filed by the Secretary of Labor
pursuant to Section 105(d) of the Federal Mine Safety and
Health Act of 1977, 30 u.s.c. 801, et seg., the "Act,"
charging S & H Mining, Incorporated (S & H)u with violations
of mandatory standards. The general issue before me is
whether s & H violated the cited standards and, if so, what
the appropriate civil penalty to be assessed.
Docket Noo SE 92-393
During hearings the parties moved to settle Citation
Noso 3383498, 3383499 and 3382595 proposing a reduction
in penalties from $471 to $250. I have considered the
representations and documentation submitted in this case,
including supplemental information filed post hearing, and
I conclude that the proffered settlement is appropriate
under the criteria set forth in Section 110(i) of the Act.
An order directing payment of these penalties will be
incorporated in the order accompanying this decision.

662

.Citation No. 3382581 alleges a "significant and
substantial" violation of the mandatory standard at 30 C.F.R.
§ 75.400 and charges as follows:
Wet loose coal and coal dust black in color
wa$ allowed to accumulate under the suspended
conveyor beltline starting at the No. 4 belt
tailpiece and continuing to the belt head drive
for a distance of approximately 800 feet in
depths from 1 inch to 6 inches deep.
The cited standard, 30 C.F.R. § 75.400, provides that
"[c]oal dust, including float coal dust deposited on rockdusted 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."
~

'v••

M. J. Hughett, an inspector for the Mine Safety and
Health Administration (MSHA), testified that he discovered
during the course of his inspection of the S & H No. 7 Mine
on April 14, 1992, coal and float coal dust 1 inch to 6 inches
deep over the entire 800 foot length of the cited beltline.
He testified that he had traveled the entire length of the
beltline at that time and noted that some of the coal was wet
and in areas where it was not wet it had been rock-dusted.
However, according to Hughett, even where there was rock dust
there was some dry coal dust on top of that rock dust in areas
near the face. No one was observed cleaning up the material
at the time of his inspection. Hughett also noted that a
number of permissibility violations existed on electrical
equipment then operating in the mine, including a 506 Bridge
Carrier in the immediate vicinity of the cited coal dust.
Cecil Broadus, lead man on the belt at the time the
citation was issued did not observe the inspection party
travel the entire length of the beltline. He maintains
that when the inspector observed the coal dust, he stated
uur guess the whole belt line is like this. 81
Broadus conceded,
however 9 that coal dust indeed lay along the belt line some
1/2 inch to 3/4 inch thick along with egg-size lumps of coalg
Broadus maintains that at the time of the citation he already
had a man shoveling coal about 150 feet from where the inspector
was standing.
Within this framework of evidence, including the
undisputed evidence that at least 1/2 to 3/4 inches of coal
dust and egg-sized lumps of coal lay along the beltline,
I am satisfied that a violation of the cited standard has been
proven as charged. The fact that some of the coal dust lay on
top of rock dust that admittedly had been laid down the week

663

before also indicates that the coal dust may have been lying
in the area for a significant period of time. I also note,
however, the testimony of Mr. Broadus that at the time the
inspector was issuing the citation he indeed already had
assigned a cleanup man to work on the cited accumulation.
Under the circumstances I find operator negligence to be only
moderate.
In-light of the existence, however, of impermissible
electrical equipment operating in close proximity to the coal
dust and loose coal, I find that the violation was clearly of
high gravity and "significant and substantial." See Mathies
Coal Company, 6 FMSHRC 1 (1984). It was indeed reasonably
likely under the circumstances for reasonably serious injuries
to occur to the men then working underground at the S & H Mine.
Under the circumstances I find that the proposed penalty of
$157 is appropriate.
Docket No. SE 92-394
At hearing the parties moved for settlement of Citation
Nos. 3382598 and 3382651 proposing a reduction in penalties
from $382 to $100. I have considered the representations and
documentation submitted in the case, including supplemental
material submitted post hearing, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section 110{i) of the Act. An order directing payment
of the penalty will be incorporated in the order accompanying
this decision. At hearing the Secretary also moved to vacate
Citation No. 3382600 for lack of evidence. The motion was
granted ~nd accordingly Citation No. 3382600 is vacated.
Citation No" 3382647 alleges a 91 significant and substantiaPu
violation of t.he standard at 30 C.F.R. § 75.203(b) and charges
t.hat. a sighiline [sic] or others [sic] method of directional
control shall be used to maintain the projected direction of the
mining in the No. 1 and 5 entries on the 001 working section."
The cited standard provides that Gla sightline or other
method of directional control shall be used to maintain the
projected direction of mining in entriesv rooms, cross-cuts and
pillar splits. "~
According to MSHA Inspector Hughett this citation was
issued because the entries were not completely straight and
that no spads or other method of directional control were
found in the Nos. 1 and 5 entries. Hughett acknowledged
finding spads in the Nos. 2 1 3 and 4 entries and finding no
violations of the roof control plan.
According to Paul Smith, an owner and president of S & H,
directional control in the Nos. 2, 3 and 4 entries is obtained

664

by establishing a line with a transit and then marking that
with spads in the roof. In the Nos. 1 and 5 entries 50 foot
measurements are taken from the spads in the Nos. 2 and 4 entries
and marked with either spray paint or chalk. According to Smith,
the miner operator then lines up these marks to the face where an
additional mark is made to insure that the mining is straight.
Under this method, once the cut is made the chalk or paint on
the face is obliterated~
In addition, the marks on the roof
may later be obscured by rock dusting. According to Smith, when
the next cut is being prepared a new measurement and mark on the
face is again made. Lonny Cardon, an employee of s & H,
testified that he in fact measured and marked the sightlines for
the Nos. 1 and 5 entries which were the subject of the instant
citation.
Within this framework of evidence I conclude that no
violation of the cited standard has occurredo The testimony
of Smith and Cardon regarding the directional controls used in
the Nos. 1 and 5 entries is 'IJ:lldisputed. While this method of
directional control may have resulted in some lack of precision
and some irregularities in the entries there was admittedly no
violation of the roof control plan and no apparent hazard.
In reaching this conclusion I have not disregarded the
testimony of Inspector Hughett that he was unable to find
chalk marks on the mine roof or at the face of the Nos. l and
5 entries. However this lack of observable evidence does not
in itself lead to the conclusion that no directional control
was being used. The credible evidence shows that such control
is established when the continuous miner begins cutting coal
and that the sightlines at the face will be obliterated by
the coal. Under the circumstances I do not find that
has sustained
burden
proving t.he violation
and Citation Noo 3382647 must accordingly
Citation Noo 3382649 charges a ovsignificant and substantial"
violation of the standard at 30 C.F.R. § 75.1704 and alleges that
01 the No.
4 return air escapeway was not maintained
a manner
permit miners
from the mine
water
acculmulated [sic]
a
[
] of 10 inches to 14 inches
11 crosscut of the No. 4 entry of first lefto gu
The cited standard provides f
partff that 9wat least
two separate and distinct travelable passageways which are
maintained to insure passage at all times of any personv
including disabled persons 1 and which are to be designated as
escapeways, at least one of which is ventilated with intake air,
shall be provided from each working section continuous to the
surface escape drift opening, or continuous to the escape shaft
or slope facilities to the surface, as appropriate, and shall be
maintained in safe condition and properly marked."

665

The testimony of Inspector Hughett regarding this
citation is not in dispute. According to Hughett, during
the course of his inspection on April 16, 1992, in the
No. 4 return air escapeway at the No. 11 crosscut of the
No. 4 entry off first left, he and Mine Superintendent
Charles White entered a section where the escapeway waa
obstructed by 10 to 14 inches of water.
White slipped and
fell in the water as he walked through it. Hughett opined
that if·someone was injured he would therefore have difficulty
passing through this area. It was slippery and, according to
Hughett, dangerous and would slow down the escape.
Charles White admitted that he had slipped in the water
hole. He acknowledged that the floor sloped down into the
hole and he had to bend to pass through it. He further admitted
that it was "slick" under the water. He explained that the
company tried to keep this area pumped out but on this occasion
the pump had not been primed.
Within this framework of essentially undisputed evidence
it is clear that the violation was committed as charged. I
do not, however, find that the violation was "significant and
substantial" or of significant gravity. The Secretary has
failed to sustain his burden of proof in this regard. See
Mathies Coal company, supra. In particular, the Secretary has
failed to sustain his burden of proving the third and fourth
elements of the Mathies formula, i.e., the Secretary has failed
to prove "a reasonable likelihood that the hazard contributed
to will result in an injury and "a reasonable likelihood that
the injury in question would be of a reasonably serious nature. 11
Considering the absence of evidence regarding significant
negligence and, I find that a civil penalty of $180 is
appropriateo
Citation Noo 3382650 also charges a violation of the
standard at 30 C.F.R. § 75.400 and alleges that "loose coal
was allowed to accumulate in depth of 1 to 12 inches in
the Nos. 1, 2 and 3 entries on the 001 section for a distance
of 70 feeto 00
Inspector Hughett testified that he observed these
conditions on the 14th and 15th of April but did not then
issue a citation because the area was inaccessible while work
was being performed on the continuous minero However, when
he observed on April 21 that these accumulations had still
not been cleaned up after the miner had been repaired, he
cited the condition. He observed that the dust was dry
and only partially rock-dusted. According to Hughett the
energized power cables in the vicinity could cause an ignition
so the violation was therefore "significant and substantial."
In regard to this finding the following colloquy ensued:

666

Q.

[By Government Counsel] What is the danger
that's associated with having that accumulated
coal dust?

A.

catching fire and causing --- you know,
it might cause combustible smoke and stuff
like that there.

Q.

Please be sure to articulate your sentences.
What kind of --- is it reasonably likely that
an injury would occur if there were a fire or
explosion from this combustible material?

A.

Yeah.

Q.

And what kind of injuries could there be?

A.

Could cause breathing or, you know, smoke
accumulation this fardown where you couldn't
get out or anything of that nature.

Q.

Could the injuries be fatal?

A.

They could, yes.

(Tr. 104-105).
This testimony is simply too ambiguous to enable any
finding that the Secretary has met her burden of proving that
the violation herein was "significant and substantial." In
addition 0 the fact that the inspector allowed the cited condition
to exist for seven days before issuing a citation contradicts
b.is finding that the violation was 01 significant and substantial. uu
Based on evaluation of the criteria under Section llO(i) of the
Act I find that a civil penalty of $180 is appropriate.
Docket No. SE 92-395
At hearing 1 Petitioner filed a motion to approve a
settlement agreement as to the one citation at issue in this
docket. Respondent has agreed to pay the proposed penalty of
$50 in full. I have considered the representations and documentation submitted in this case, and I conclude that the
proffered settlement is appropriate under the criteria set
forth in Section llO(i) of the Act.

667

ORDER
Docket No. SE 92-393
S & H Mining, Inc. is hereby directed to pay civil penalties
of $100, $100, $157, and $50 for Citation Nos. 3383498, 3383499,
3382581 and 3382595, respectively.
Docket No. SE 92-394
Citation Nos. 3382600 and 3382647 are hereby vacated. s & H
Mining co., Inc. is hereby directed to pay civil penalties of $50
each for Citation Nos. 3382598, 3382259, and 3382651. Citation
Noso 3382649 and 3382650 are affirmed but without "significant
and substantial 11 findings and S & H Mining, Inc. is directed to
pay civil penalties of $180 for each of those violations.
Docket No. SE 92-395

s & H Mining Company is directed to pay civil penalties
of $50 for the violation charged in Citation No. 3382641.

' '1/

t/t~,

Gary
lick ·~f
Admin'strative Law Judge
703-7 6-6261
Distribution~

Darren Lo Courtney, Esq., Office of the Solicitor,
UoSo Department of Laboru 2002 Richard Jones Road,
Suite B-201 Nashville TN 37215 (Certified Mail)
Imogene Ao King, Esqou Frantz, McConnell and Seymour 0
Box 39 9 Knoxvilleu TN 37901 (Certified Mail)

P"O"

668

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

APR 5 1993

. CIVIL PENALTY PROCEEDING
... Docket No. WEVA 92-986

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner
v.
ONEIDA COAL COMPANY, INC.,
Respondent

:

A.C. No. 46-05243-03624

~

Oneida No. 1 Mine

0
0

DECISION
Appearances:

Glenn M.

Loos~·Esquire,

Office of the Solicitor,

u.s. Department of Labor, Arlington, Virginia,
for Petitioner;

w. Henry Lawrence, Esquire, Steptoe and Johnson,
Charleston, West Virginia, for Respondent
Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penalty under Section 105(d) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearings, Petitioner
filed a motion to approve settlement agreement and to dismiss
the caseo Respondent has agreed to pay the proposed penalty
$10,020
fullo
I have considered the representations and
documentation submitted
this case, including the addendum
to the settlement agreement attached hereto as an appendixu and
I conclude that the proffered settlement is appropriate under
the criteria set forth in Section 110(i) of the Act.
WHEREFORE, the motion for approval of settlement is
GRANTEDu and
is ORDERED that Respondent pay 6.)1 penalty of
\i
$10u020 within 30 days of this 7\rd
o

~

\

I

j_ary Me ic
rative
703-756 261

~dminis

669

1

Distribution:
Glenn M. Loos, Esq., Office of the Solicitor, u.s. Department
of Labor, 4015 Wilson Boulevard, Room 516, Arlington, ~ 22203
(Certified Mail)

w. Henry Lawrence, IV., Esq., Steptoe and Johnson, Sixth Floor,
Union National center East, P.O. Box 2190, Clarksburq, wv
26302-2190 (Certified Mail)
/lh

670

APPENDIX 'IO DECISION

UHI~ED STA~ES OF AMERICA
FEDERAL HIHE SAFETY AHD HEALTH REVIEW CORPORA~IOH

LYHH HARTIN, Secretary of Labor,
United·states Departaent of Labor,
Petitioner,
Yo

,

CIVIL PEHALYY PROCEEDIHG

)

)
)
)
)

AsBessaent Control

»

io. 46-05243-03624

)

Hinee Oneida Mine So. 1

)
)
)

SOL Mo. 92-39276

Docket Ho. WEVA 92-986

»

ORE IDA COAL CO., IHC.,
.Respondent ..

ADDEHDUM 'J.'O
JOINT MOTIOH FOR
APPROVAL OF SETTLEMEHT

.. '

-·J

::-;, ~

"=""'

f"Ti~o

.....

fhis day caae the parties, by counsel, and repres~!~~ to~e

""'t"t'
~

~

N

Court that they have reached an agreeaent as to the i~ea in disp~
M

.

"""

~

<

herein whereby the Secretary agrees to aodify its fin~O::
of f"\)
c:::>:t:'~

f'T1

megligenc® f~om

0

~~~

c;,...,::;r-

Doderate~ ~o mnone~

-

Qo

0
on ~itation ~umbe~3309~ and to
:z:::I"Tl
:::.1::

U'a

Citations Huaber 3110789 and 3110790 and whereby Oneida Coal Coapanyu

Xnco

~grees

tc pay the 9enalty assessaent.

Wherefore~

the parties

w. Henry Lawrence IV

Counsel for Respondent
Oneida Coal., Co., Xnc.

671

Glen M. Loos, Esquire
Departaent of Labor
4015 Wilson Boulevara, Roo• 516
Arlington, Virginia 22203
Counsel for Petitioner
Secretary of Labor

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

APR 6 1993
ERNIE L. SPAULDING,
Complainant

DISCRIMINATION PROCEEDING
Docket No. WEVA 92-971-D

vq

HOPE CD 92-07
MADISON BRANCH MANAGEMENT,
INC. u
Respondent
DECISION
Appearances:

Before:

Thomas L. Woolwine, Personnel Management
Consultants, Princeton, West Virginia, for
Respondent;
Ernie Spaulding, Pro Se.

Judge Maurer

This case is before me based on a Complaint filed by
Ernie Spaulding, alleging that he was discriminated against by
Madison Branch Management, Inc., (Madison), in violation of
section 105(c) of the Federal Mine Safety and Health Act of 1977,
(the "Act"), 30 u.s.c. § 815(c). Pursuant to notice, the case
was heard in Bluefield, West Virginia, on December 29, 1992. At
the hearing, Mr. Ernie L. Spaulding appeared pro se and testified
in his own behalf. David
lins also testified on behalf of
complainant. A'l: 'che conclusion of the complainant 1 s case ff
respondent made a motion for summary decision, which I took under
advisement at the time in order to hear their evidence. Messrs.
Sturgill and Logan subsequently testified on behalf of respondent
and were cross-examined
Mr. Spaulding. Finally, Mr. Spaulding
made a closing statement on the record. Following that, I
granted the respondent's motion for a summary decision.
Complainant, who has never worked for Madison, alleges
basically that he was not hired to be a bulldozer operator at
Madison in this instance because even though he professes to be
"pretty good at it," he believes he was not given a tair tryout
on the equipment. Furthermore, he believes that the reason for
this "discrimination 11 was because of a previously poor work
record with other employers when he was younger. He states he
had a lot of "AWOLs" in those days, and thinks Madison might be
aware of this along with the fact that he was a "union radical"
in his previous coal mine employment. Madison's defense is
essentially that they tried him out on the equipment and he
performed poorly on the practical test.

672

As I explained to the parties at the beginning of this
hearing (Tr. 15-16}, in order to establish a case of
discrimination under section 105(c) of the Act, the complainant
has the burden of proving that (1) he engaged in protected
activity and (2) the adverse action complained of was motivated
in any part by that protected activity. Secretary on behalf of
Pasula v. consolidation Coal Co., 2 FMSHRC 2786, 2797-2800
(October 1980), rev'd on other grounds sub nom. Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on
behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 817-18
(April 1981). The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the
adverse action was in no part motivated by protected activity.
If an operator cannot rebut the prima facie case in this manner,
it nevertheless may defend affirmatively by proving that it also
was motivated by the miner's unprotected activity and would have
taken the adverse action in any event for the unprotected
activity alone. Pasula, supra; Robinette, supra.
See also
Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 639 1 642 (4th Cir.
1987); Donovan v. Stafford Construction Co., 732 F.2d 954, 958-59
(D.C. Cir. 1984); Boich v. FMSHRC, 719 F.2d 194, 195-96 (6th Cir.
1983) (specifically approving the Commission 9 s Pasula-Robinette
test). Cf. NLRB v. Transportation Managemer.t Corp., 462 u.s.
393, 397-413 (1983) (approving nearly identical test under
National Labor Relations Act).
Complainant herein failed to demonstrate that he had engaged
in any prior activity that would be considered 01 protected
acti vi tyui under the Mine Act. Since this is a necessary element
of any discrimination caser his case has fa
of proof and must
dismissed.
ORDER
It is ORDERED that this case be DISMISSED.

~4JV\~
~

JRoy ~ ~aurer
I'
Admi jslrative Law Judge

Distribution:
Mr. Ernie Spaulding, 201 Meadow Road, Madison, WV

25130

Mr. Thomas L. Woolwine, Personnel Management Consultants,
P. o. Box 1389, Princeton, WV 24740-1389
dcp
673

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

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

"! ]' n."' f:~,:{,
I

~:1'~

:

CIVIL PENALTY PROCEEDINGS

:

Docket No. PENN 92-523-M
A.C. No. 36-03161-05507

.
0

Docket No. PENN 92-524-M
A.C. No. 36-03161-05506

DELAWARE VALLEY LANDSCAPE
INCORPORATED,
Respondent

Delaware Valley Landscape
Stone Inc.
DECISIONS

Appearances:

Maureen A. Russo, Esq., Office of the Solicitor,
U.So Department of Labor, Philadelphia,
Pennsylvania, for the Petitioner;
Jay H. Harsch, Esq., Eastburn and Gray,
Doylestown, Pennsylvania, for the Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern proposals for assessment of civil
penalties filed by the petitioner against the respondent pursuant
section llO(a) of the Federal Mine Safety and Health Act of
1977" 30 u.s.c. § B20(a).
Both cases concern alleged violations
of mandatory safety standard 30 c.F.R. § 56.1413l(a), which
requires seat belts to be provided and worn in haulage trucks.
Docket No. PENN 92-524-Mu concerns a section 104 (d) (1) ~•s&S 11
tation No. 3866333u issued on December 10, 199lv by MSHA
Inspector Elwood Frederick for the alleged failure of a haulage
truck operator to wear a provided seat belt while hauling
material at the respondent 1 s mine site. Docket No.
PENN 92-523-M, concerns a section 104(d) (1) "S&S" Order No.
3866334, issued by Inspector Frederick approximately one hour
after the issuance of the citation on December 10, 1991. The
inspector cited another haulage truck operator for not wearing
the seat belt. provided in his haulage truck while hauling
material at the site.
The respondent filed timely notices of contests and answers
denying the alleged violations and challenging the reasonableness
of the proposed penalty assessments ($600 in Docket No.
PENN 92-524-M and $500 in Docket No. PENN 92-523-M). The cases
were consolidated for hearing in Allentown, Pennsylvania, on

674

March 11, 1993, and the parties appeared and participated fully
therein, and they were given an opportunity to file posthearing
briefs.
Issues
The issues presented are (1) whether the cited conditions or
practices constitute violations of the cited standards; (2)
whether the alleged violations were significant and substantial
(S&S); (3) whether the alleged violations were the result of the
respondent's unwarrantable failure to comply with the cited
standards; and (4) the appropriate civil penalties to be assessed
for the violations taking into account the civil penalty
assessment criteria found in section 110(i) of the Act.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301, et seq.__
2.

Sections 104(d) (1) and 110(1) of the Act.

3.

30 C.F.R.

4.

Commission Rules, 29 C.F.R.

§

56.14131(a).
§

2700.1, et seq.

Stipulations
The parties stipulated to the following (Exhibit ALJ-1):
lo The respondent is a duly authorized Pennsylvania
corporation and it
subject to the jurisdiction of the
Acto

The pres1a1ng Administrative Law Judge has jurisdiction
in these proceedings.

2o

The subject order and citation were properly served by a
duly authorized representative of the Secretary of Labor
upon an agent of the respondent at the datesu times, and
places stated therein, and may be admitted into evidence for
the purpose of establishing their issuance, and not for the
truthfulness or relevancy of any statements asserted
therein.
4. The assessment of civil penalties in these proceedings
will not affect the respondent's ability to continue in
business.
5. The appropriateness of the penalties, if any, to the
size of the business should be based on the fact that:

675

a. The respondent's company's annual
production tonnage is 16,465 (small company);
b. The respondent's Delaware Valley
Landscape Stone, Inc., Delaware Plant has an
annual production of 5,846 tons (small
plant).
6. The respondent was assessed a total of eight (8)
violations during the 24 months preceding the issuance of
the citation and order involved in these proceedings.
(Exhibit G-K).
7. The parties stipulate to the authenticity of their
exhibits but not to their relevance nor the truth of the
matters asserted therein.
Discussion
In support of the alleged violations, the petitioner
presented the testimony of Inspector Frederick. In its defense,
the respondent presented the testimony of its plant manager and
foreman, Clarence Pursell. According to the testimony,
Mr. Pursell accompanied the inspector during his inspection on
December 10, 1991, and the contested citation and order were
served on Mr. Pursell. At the close of all of the testimony, the
respondent's counsel presented closing arguments on the record
(Tr. 138-142). Petitioner's counsel waived closing argument and
opted to file a posthearing brief (Tr. 144). However, prior to
the submission of any briefs the petitioner filed a motion
pursuant to Commission Rule 30u 29 C.F.R. § 2700.30u seeking
approval of a proposed settlement agreed to by the parties 0 the
terms of which include an agreement by the respondent to pay
civil penalty assessments of $128u in settlement of each of the
violations.
In support of the proposed settlementu the petitioner states
that on the basis of the evidence presented during the hearing on
March llu 1993u the parties are in agreement that the
respondent's negligence does not rise to the level of aggravated
conduct required to support the inspectoris unwarrantable failure
findings. Under the circumstancesv the parties are in agreement
that the citation and order should be amended to section 104(a)
citations 9 and that the remaining negligence and gravity findings
made by the inspector will remain as issued. In addition, the
parties state that the statutory civil penalty criteria found in
section llO(i) of the Act have been considered, and they confirm
that the violations were timely abated in good faith and that the
respondent's history of eight prior citations does not include
any seat belt violations.

676

Conclusion
After careful review and consideration of the pleadings,
arguments, and submissions in support of the proposed settlement
of these cases, I conclude and find that the proposed settlement
dispositions are reasonable and in the public interest.
Accordingly, pursuant to 29 C.F.R. § 2700.30, the settlements
ARE APPROVED.
ORDER
IT IS ORDERED THAT:
1. Docket No. PENN 92-523. The initial Section
104(d) (1) "S&S" Order No. 3866334, December 10, 1991,
citing a violation of 30 C.F.Ro § 56.14131(a), IS
MODIFIED to a section 104(a) "S&S" citation, and the
violation IS AFFIRMED. The respondent shall pay a
civil penalty assessment>of $128, to MSHA within thirty
(30) days of the date of this decision and order in
satisfaction of the violation, and upon receipt of
payment, this matter is dismissed.
2o
Docket No. PENN 92-524. The initial Section
104{d) (1) "S&S" Citation No. 3866333, December 10,
1991, citing a violation of 30 C.F.R. § 56.14131(a),
IS MODIFIED to a section 104(a) "S&S" citation, and the
violation IS AFFIRMED. The respondent shall pay a
civil penalty assessment of $128, to MSHA within thirty
(30) days of the date of this decision and order in
satisfaction of the violation, and upon receipt of
paymentu this matter is dismissed"

Distribution~

Maureen A. Russov Esq. Office of the Solicitor 1 u.s. Department
of Laboru Room 14480-Gateway Buildingu 3535 Market Streetu
Philadelphia, PA 19104 (Certified Mail)
Jay H. Karsch, Esq., Eastburn and Gray, 60 East Court street,
P.O. Box 1389, Doylestown, PA 18901-1389 (Certified Mail)
jml

677

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

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

CIVIL PENALTY PROCEEDINGS

..

Docket No. SE 92-335
A. C. No. 40-02666-03580

v.
Docket No. SE 92-336
A. C. No. 40-02666-03581

DOUBLE "B" MINING, INC.,
Respondent

Mine No. 32
DECISION APPROVING SETTLEMENT
Appearances:

Thomas A. Grooms, Esq., Office of the Solicitor,

u. S. Department of Labor, Nashville, Tennessee,
for the Secretaryi
Ladue Bouldin, President, Double "B" Mining
company, Inc., Tracy city, Tennessee, for
Respondent.

Before:

Judge Maurer

These cases are before me upon a petition for assessment of
penalty under section 105(d) of the Federal Mine Safety and
Health Act of 1977 (the Act
At the hearing, the parties
jointly moved to
these cases based primarily on the
financial plight of the respondent on the following basis:
o

CITATION NO a

PROPOSED
ASSESSMENT

3396049
3396050
3396051
3396052
3369053
3396054
3396055
3396056
3396057
3396060
3396086
3396087
3396088
3396089

252
252
252
147
220
220
136
220
136
136
50
50
136
94

678

PROPOSED
SETTLEMENT

$

126
126
252
70
110
110
136
110
68
68
50
50
50
50

3396090
3396091
3396092
3396093
3396094
3396095
3396097
3396098
3396099
3396100
3530612
3530262
3530263
3530264
3530265
3530266
3530267
3530268
TOTAL

136
220
220
94
94
136
136
136
136
220
220
220
220
220
136
220
136
220

68
110
110
50
50
68
68
68
68
110
110
110
220
220
68
220
68
220

5421

3382

I have considered the representations and documentation submitted
in these cases, and I conclude that the proffered settlement is
appropriate under the criteria set forth in section 110(i) of the
Act.
WHEREFORE, the joint motion for approval of settlement
GRANTED, and it is ORDERED that respondent pay a total penalty
$3382 within 30 days of this ordero

Law Judge
Distribution~

Thomas Ao Grooms, Esq.u Office of the Solicitor, U. S. Department
of Labor 9 2002 Richard Jones Roadu Suite B-201 0 Nashville, TN
37215, (Certified Mail)
Mr. LaDue Bouldin, President, Double 11 B" Mining, Inc.u
P. o. Box 280, Tracy City, TN 37387 (Certified Mail)
dcp

6 79

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

APR
CYPRUS TONOPAH MINING
CORPORATION,
Contestant

91993
CONTEST PROCEEDINGS
Docket No. WEST 90-363-RM
Citation No. 3645243; 9/5/90

v.
Docket No. WEST 90-364-RM
Citation No. 3459560; 9/5/90
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION
(MSHA) I
Respondent
SECRETARY OF LABOR 1
MINE SAFETY AND HEALTH
REVIEW ADMINISTRATION
(MSHA) 1
Petitioner,

Cyprus Tonopah
I.D. 26-02069

Min~

CIVIL PENALTY PROCEEDING
Docket No. WEST 90-202-M
AO No. 26-02069-05507

v.
CYPRUS

TONOPAH MINING CORP. :~
DECISION AFTER REMAND

lBeforeg

and Hea
Revie~t! Commission u in its
March &4r 1993 9 determined that the violation
contained
·tation No. 3459560 did not as I had previously
heldu result from Respondentus unwarrantable failure to comply
the pertinent safety standard and remanded the matter to me
reca
penalty based on this change.
The penalty assessed in my original decision issued on September 23, 1991, was $1,000.00. The basis for the Commission's
determination that the violation was not the result of Respondent's unwarrantable failure is essentially set forth on page 11
of its decision.
We also find significant the fact that
on the day of Inspector Ellis's inspection,
Cyprus was in the process of constructing a

680

larger berm at the base of the west wall.
The Commission has previously recognized that
an operator's pre-citation efforts in mitigating a violative condition are relevant in
reviewing an unwarrantable failure determination.
, ~~Utah Power and Light co.,
11 FMSHRC 1926, 1933 (October 1989).
Because Cyprus's conduct apparently
resulted from a good faith, albeit mistaken,
belief that its actions were in compliance
with Section 56.3200, we conclude that
substantial evidence does not support the
Judge's finding that Cyprus's violation of
56.3200 was caused by its unwarrantable
failure.
generally Utah Power and Light
, 12 FMSHRC 965, 972 (May 1990).
It is found that Respondent was negligent, however, in
permitting work and travel in the area where hazardous ground
conditions existed until completion of the "corrective work"
mentioned in the safety standard, i.e., the berm mentioned by the
Commission was completed.
See my Decision, fn. 22, 13 FMSHRC
1547.
Nevertheless, the elimination of the "unwarrantable failure"
aspect of the violation stands in considerable mitigation of the
culpability to be attributed and after consideration of this
change and the other penalty assessment criteria previously ascertainedu a penalty of $500 is found appropriate and
here
assessed.

;}.:04&? 0~/Ail /!

r

Michael A. Lasheru Jr.
Administrative Law Judge

Distribution
R. Henry Moore, Esq. 0 BUCHANAN INGERSOLL! 600 Grant Street, 58th
Floor, Pittsburgh, PA 15219
(Certified Mail)

Colleen A. Geraghty, Esq., Office of the Solicitor, u.s. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)
ek

681

FEDERAL KDiE SAFETY ABD REAI.'I'H REVIEW COJUIISSIOB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

91993
CIVIL PENALTY PROCEEDING
:

Docket No. WEVA 92-746
A.C. No. 46-05801-03618
No. 21 Mine

TOP KAT MINING; INCou
W-P COAL COMPANY,
Respondents
BEAR RUN COAL 0 INC.,
Successor-In-Interest
DECISION
l~ppearances ~

Gretchen Lucken, Esq., Office of the Solicitor,

u.s. Department of Labor, Arlington, Virginia, for

Petitioner;
Kurt A. Miller, Esq., Thorp, Reed and Armstrong,
Pittsburgh, Pennsylvania, for Respondent W-P Coal
Company;
No appearance on behalf of Top Kat Mining,
Inc.~ or Bear Run Coal, Inc.
Befors;

case
before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section 105(d) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801,
at seq. y the uuActv', charging Top Kat Mining~ Inc. u (Top Kat) and
W-P
Company W-P) as mine operators and Bear Run Coal 9 Inc.
Bear Run as a successor-in-interest with two safety violations
at the No. 21 Mine and seeking civil penalties for those
violations, 'i The Secretary"s motion to withdraw Citation
No. 3136609 was granted andu as the petition has been amendedu

This civil penalty case is one of at least 138 separate
cases filed by the Secretary against W-P at the No. 21 Mine.
Since the threshold issues presented herein are common to all

of the cases this case was selected upon agreement of the parties
to litigate those common issues as a "test case" and the others
have been placed on stay pending final disposition of this case.

682

only one violation under the mandatory standard at 30 C.F.R.
§ 77.200 remains at issue. 2
At hearing the petitions for
qivil penalty against Top Kat and Bear Run were dismissed for
failure to execute service on those parties. Accordingly, only
the liability of W-P as an operator of the No. 21 Mine remains
at issue.
Background
It is not disputed that during relevant times W-P was
engaged in the business of purchasing coal from contract
mining companies, processing that coal at a W-P preparation
plant, and selling and distributing the coal to the WheelingPittsburgh Steel Corporation. W-P's offices and its preparation
plant are located in Logan County, West Virginia. These are
its only facilities. W-P leases the mineral rights to six deep
mines in Logan County and has contract mining agreements with
five different contract mining companies. Under those
agreements, the contract mining companies mine the coal in
exchange for a royalty payment.fromW-P based on the amount of
clean coal produced. This arrang~ment is common in southern
West Virginia, where approximately 80 to 90 percent of all deep
mines are operated on a contract-mining basis.
This case involves a deep mine known as the No. 21 Mine,
located near Stirrat, West Virginia. W-P leases the mineral
rights to that mine pursuant to a 1969 lease with the owner
of the mine, Cole and crane. W-P operated this mine from
1978 until January 1988, when it entered into a contract
mining agreement with Deer Run. Dear Run terminated its
contract with W-P in November 1989, and a new contract was
awarded to Top Kat on December 29v 1989. There is no dispute
that W-P and Top Kat are separate and distinct companies and
have no common ownersv officersu employers or facilities and
there has been no interchange of employees between the companies.
The contract between W-P and Top Kat was a standard
industry form. Under the contract, Top Kat agreed to
assume complete control over the operation of the Noo 21
Minev including the hiring of miners and the administration
health and safety matters. W-Pu in turn 8 agreed to pay
Top Kat $21.00 for each ton of clean coal produced. The
contract further provided, in relevant part, as follows:
2

This Citation, No. 3750647, was issued September 4, 1991,
and alleges as follows:
"The No •. 21 bathhouse facilities was [sic] not maintained in
good repair to prevent accidents and injuries to employees in
that there was an area of the bathhouse floor approximately
2-1/2 foot by 2-1/2 foot that was rotten and the wood was wet and
weak (ready to collapse at any time)."

683

III(H). Owner and Contractor understand, agree
and reaffirm and hereby covenant, each with the
other, that in every respect in the performance
of this Contract, Contractor shall stand in a
relationship with Owner as that of an independent
contractor and is in no manner a servant, agent,
employee, shareholder, joint venturer or partner
of Owner, and that this Contract shall be construed
accordingly. Except as specified herein to the
contract, Contractor shall do the work required
hereby according to its own manner and methods,
without the right of direction or supervision by
owner and Owner shall have the right to look to
Contractor only for the results required and to be
accomplished hereunder.
There is no dispute that W-P complied fully with all prov1s1ons
of the contract throughout Top Kat's operation of the No. 21
Mine.
Under the contract, W-P also agreed to provide engineering
services at the mine in exchange for a fee deducted from Top
Kat's royalty payments. These engineering services, which W-P
provides at all of its contract mines, included the preparation
and updating of the mine map. Top Kat would indicate to W-P
what section Top Kat wanted to mine and W-P engineers would then
make projections for that particular area. This provision was
included in the contract because, under the terms of its lease
with Cole and Crane, W-P is required to submit mining projections
and plans to them for their approval before mining. Similar
provisions requiring the mine or mineral rights owner to provide
engineering services are common in the contract mining industry.
Pursuant to the contract, W-Pus Chief Engineeru Joseph Dotsonu
and members of his engineering crew also visited the mine
approximately once a week to set spads or update the mine map.
The engineering crew did not direct Top Kat where to mine coal,
other than in conformity with the mine projections.
Under the contractr W-P also permitted Top Kat to use
W-P equipment located on the mine premises for a fee of
$1.50 per ton of coal produced. Effective in early 1990 1
W-P waived this fee because of the poor condition of the
equipment and Top Katus financial problems. W-P also loaned
Top Kat
5uOOO for the purchase of a wage bond required by West
Virginia law. In making that loan W-P required Top Kat to
execute a security agreement and promissory note. W-P was
reimbursed for that loan with interest, at the rate of
$6,000 per month.
W-P also permitted Top Kat to order supplies from its
supply house deducting the cost of those supplies, plus a
10 percent service charge, from subsequent royalty payments.

684

W-P had an identical supply arrangement with all five of its
contract miners. This type of supply house arrangement is
also common in the contract mining industry.
During the period when Top Kat was the contract miner
at the No. 21 Mine, W-P President Vernon Cornett recommended
two persons to Top Kat for jobs as foremen. Top Kat was
free however to accept or decline those recommendations.
W-P management also telephoned Top Kat on a daily basis to
ascertain production levels. If Top Kat was having production
problems such problems would typically be reported during
these calls. W-P President, Vernon Cornett, and W-P Safety
Directorv Mickey Senator, visited the mine infrequently,
Cornett visiting approximately once a month to check the coal
stockpile and Senator occasionally visiting to check on the
roadways and mine maps.
During 199lv Top Kat began experiencing financial troubles.
At the request of Top Kat's p~esident, W-P advanced money to
meet its payroll and other obligations. W-P recouped this
money from Top Kat by deducting those advances from subsequent
royalty payments.
During the time that Top Kat was the contract miner
at the No. 21 Mine, MSHA conducted a number of health and
safety inspections. MSHA never provided W-P with notice
that an inspection was about to begin, did not invite W-P
to participate in any inspection, did not invite W-P to
participate in any pre-inspection conferences and cited only
Top Kat as the operator of the mine. Moreover, the Secretary
has never cited W-P for failing to register with MSHA as an
operator of the No. 21 Mineo
During late 1990 and 199lu there was an increased number
MSHA. inspections and Top Kat was issued an increased number
citations and orders. This resulted in decreased coal
production. Apparently believing that the increased MSHA
activity may have been caused by a personality conflict between
MSHA and Top KatJ W-P Safety Director Mickey Senator requested
meeting between MSHA and Top Kat management in late 1990 or
199lo Senator attended the meeting in an effort to resolve
·the apparent conflict.
?xound February 199lp MSHA held meetings at the Logan Field
Office with Top Kat representatives concerning the mine map and
ventilation plan for the No. 21 Mine. W-P's engineer, Joseph
Dotson and Mickey Senator, attended some of those meetings.
Around August 1991, Top Kat's President, William Adkins,
requested that Cornett send Mickey Senator to accompany MSHA
inspectors on the next inspection. Top Kat apparently made
this request because Top Kat knew that Senator was experienced

685

with mine safety and health matters and with the local MSHA
office. Cornett thereafter sent Senator to accompany MSHA
inspectors and a Top Kat representative on an inspection on
August 26 and 27, 1991. The inspection involved a shutdown of
the belt lines. According to Senator, his role in the inspection
was to observe the interaction between the MSHA and Top Kat
representatives to determine whether a personality conflict was
indeed the cause of the increased number of citations and orders,
and to mediate any personality problem. Senator maintains that
he understood that Top Kat was the sole operator of the No. 21
Mine and had sole responsibility for health and safety matters at
the mine. He maintains that he therefore did not pay close
attention to any health or safety violation cited during that
inspection, nor did he take notes concerning those alleged
violations. Moreover, he did not direct or advise Top Kat
concerning abatement of the alleged violations.
Cornett, Senator and Dotson also visited the Logan Field
Office on occasion to discuss the No. 21 Mine and the other
mines to which W-P leased the.mineral rights. The discussions
as they pertained to the No. 21 Mine were general discussions
concerning whether Top Kat was going to be able to mine coal.
In contract mining situations, it is apparently common for
representatives of the owner or lessee to meet with MSHA
representatives.
on September 4, 1991, MSHA issued Citation No. 3750647
against Top Kat for allegedly having failed to maintain the
flooring of a bathhouse at the No. 21 Mine, in alleged
violation of 30 C.F.R. § 77.200. According to Tyrone Stepp,
the issuing inspector, the bathhouse had "basically rotten,
deteriorated floor ~ MSHA did not give W-P notice of the
inspectionu did not invite W-P to participate in the inspectionu
and did not invite W-P to attend the pre- or post- inspection
conference"
o

9

In October 1991, Vernon Cornett met with William Adkins
to discuss Top Kat's continued operation of the No. 21 Mine.
Adkins informed Cornett that MSHA had put the No. 21 Mine on
target statusu and that Top Kat was shutting down the mine to
deal with its health and safety problems. Cornett noted the
production irregularities that Top Kat experienced over the
preceding yearu and further noted that Top Kat had been unable
to resolve its problems with MSHA. Cornett then told Adkins
that he, Cornett, did not see how Top Kat could continue to
operate. Although W-P had the right to terminate the contract
for Top Kat's failure to meet minimum production levels, W-P
did not do Sbo
In late October 1991, Lawrence Fowler, the District
Manager of the MSHA District Office covering the Logan Field
Office, telephoned Noah Ooten, the MSHA superintendent

686

responsible for the No. 21 Mine. In that conversation, Fowler
instructed Ooten to modify the outstanding citations against
Top Kat to name W-P as a "co-operator .. " After Fowler instructed
Ooten to modify the citation, a representative of MSHA's
collection office visited the Logan Field Office to search for
records to support MSHA's theory of co-operator liability. The
Solicitor's Office subsequently advised Ooten on the language the
Logan Field Office should use in modifying the citation. Ooten
then instructed his inspector to modify the citations.
MSHA modified the citation in this case, Citation
No. 3750647, at 9:32a.m. on November 14, 1991, more than a month
after Top Kat had ceased operations. Approximately one hour
later, and without having served W-P with the modified citation,
MSHA issued Order No. 3742534 against W-P for allegedly having
failed to abate Citation No. 3750647. At approximately 1:00 p.m.
on November 14 9 1991 6 MSHA served W-P with the modification of
Citation No. 3750647. and Order No. 3742534.
Before the modifications~-MSHAdid not notify W-P that W-P
was considered to be a nco-operator" of the No. 21 Mine nor that
it would seek to hold W-P liable for safety and health violations
at the No. 21 Mine.
Analysis
A preliminary issue raised in this case is whether W-P was
an noperator" within the meaning of the Act. The term "operator"
is defined in Section 3(d) of the Act as any "owner, lessee, or
other person who operates, controls, or supervises a coal or
other mine
aa.
since there is no dispute that W-P was an
u'ownerY' and aolessee 90 of the subject mine 9 W-P was therefore an
"operatorgu and subject to liability for violations committed by
its contractors
this mine. Harman Mining Corporation v.
Federal Mine Safety and Health Review Commission, 671 F.2d 794
(4th Cir. 1981) 9 Secretary v. Calvin Black Enterprises, 7 FMSHRC
1151 (1985) 0 Secretary v. Phillips Uranium Corp., 4 FMSHRC 549
(1982)
See also Bituminous Coal Operators' Assoc., Inc. v.
Secretary of Interiorv ~47 F.2d 240 (4th Cir. 1977), similarly
construing provisions of Section 3(d) of the Federal Coal Mine
Health and Safety Act of 1969 identical to those of Section 3(d)
issue herein. W-P 1 s position, with which the Secretary is in
agreement 0 that a mine owner or lessee can be liable as an
9'operator'' only
the facts establish the exercise of control
or supervision over the operation of the mine is therefore
erroneous as a matter of law. In this case the Secretary also
maintains that W-P is liable as a "co-operator" based on the
alleged control and supervision it exercised at the mine. The
term "co-operator" is not defined in the Act, however, and any
liability on the part of W-P in this case must rest upon a
finding that it was an "operator" under Section 3(d) of the Act.
o ••

687

W-P next argues that the Secretary 1 s decision in this case
to proceed against W-P was not consistent with the purposes
of the Act and that the citation must be vacated under the
principles set forth in Phillips Uranium, supra, at 551-553.
In the Phillips case the Commission reaffirmed the principles
enunciated in Old Ben Coal Co., 1 FMSHRC 1480 (1979) that in
choosing the entity against whom to proceed, the Secretary
should look to such factors as the size and mining experience
of the independent contractor, which parties contributed to
the violation, and the party in the best position to eliminate
the hazard and prevent it from recurring. 4 FMSHRC at 552-53.
The Commission stated in Phillips that a Secretarial decision
grounded solely on considerations of "administrative convenience"
rather than the protective purposes of the Act could not be
approved. See also Secretary v. Calvin Black Enterprises,
suprao
Applying these principles to the present case, I find that
the Secretary has failed to establish that he has proceeded
against W-P in this case on anything other than administrative
convenience in an attempt to collect civil penalties from a
"deeper pocket. nv Indeed, the Secretary readily acknowledges that
one reason for selecting w~P for prosecution herein apparently
after discovery tha·t the contractor could not pay the civil
penalties was W-Pils 01 resources. uv Beyond that the Secretary has
essentially refused to reveal the reasoning, if anyF behind his
selection of W-P for prosecution citing a "deliberative process"
privilege. The result is that there is no evidence that the
Secretary considered the factors enunciated in the Phillips
decision.
Moreoverc
suggests <::ha·t p

evidence there is in this case
criteria u W-P was not the
against. Top Kat was clearly in
charge of ·the
mining activities and because only Top
Kat had crews of working miners at the mine during relevant times
reasonably be inferred that it was the primary contributor
condition
it was in the best position to
:• and ·chat icc 1.v-as best prepared to prevent
ly 1
l'ias Top Kat us employees who were
primarily exposed to the cited hazard. While the Secretary also
argues that W-P exercised co-equal supervision over the mining
activi·ties 'che facts
not: support this argument.
The limited evidence
is available demonstrates moreover
·that
decision ·to select W-P for prosecution was in fact based
on administrative convenience. For example MSHA did not cite W-P
until after Top Kat ceased operations and was no longer in
business. Moreover MSHA inspectors were at the No. 21 Mine
frequently during 1990 and 1991, at which time they had ample
opportunity to observe the relationship between Top Kat and W-P.

688

If citing W-P for violations at the Noo 21 Mine would in fact
have promoted the health and safety of miners, MSHA should have
cited W-P at the time of the alleged violations.
In addition, Noah Ooten from MSHA's Logan Field Office
testified that, after Top Kat ceased operations, a representative
of MSHA's Mount Hope District Office advised him that MSHA would
be modifying the outstanding citations against Top Kat to name
W-P as a "co-operator." According to Ooten, a representative of
MSHA's collection agency subsequently visited the Logan Field
Office to search for evidence to justify citing W-P as a
••co-operator. n The decision was also made by MSHA's Office of
Assessments and was made before the Secretary's investigation
into the facts which he now contends support W-P's liabilityo
It may reasonably be inferred from these facts that the
Secretary's motivation in citing W-P was therefore primarily
to obtain a 11 deep pocketn to ensure collection of penalties.
The idea that the purpose of-charging W-P was to advance the
health and safety interests of miners appears to have been
only an afterthought not consistent with the actual sequence
of events. Under the circumstances I find that the Secretary
has not complied with the criteria set forth in Phillips Uranium,
and this case must accordingly be dismissed. In light of this
determination there is no need to decide whether the citations
in this case could have been otherwise legally amended within the
framework of Wyoming Fuel Company, 14 FMSHRC 1282 (1992).
ORDER
The civil penalty proceedings
Docket No. WEVA 92-746
are hereby dismissed as against Top Kat Miningu Inc.u and Bear
Run Coal Inc.,
lure to execute service. Furthermoreg
Citation Noo 3750647 and Order Noo 3742534 are vaca~ed and these
civil penalty proceedings are dismissed against W-P Coal company
for the reasons stated in the above decision.

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Adminis tative Latpudge
703-756 r261

1

689

<%,<:;,.

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor,

u.s. Department of Labor, Labor, 4015 Wilson Boulevard,
Suite 400, Arlington, VA 22203 (Certified Mail)

Kurt A. Miller, Esq., Thorp, Reed and Armstrong,
One Riverfront Center, Pittsburgh, PA 15222 (Certified
Mail)
/lh

690

FEDERAL l!llliE SAFETY ABD BRATlJIH REVDSW COIDIISS:IOR
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION ( MSHA) 1
Petitioner
Vo

ARROW CRUSHED STONE, INC.,
Respondent

91993
CIVIL PENALTY PROCEEDING
Docket No. CENT 92-219-M
A.C. No. 41-03717-05501

.:• Blum Quarry
.
.•
DECISION

Appearances:

Nancy Carpentier, Esquire, Office of the
Solicitor, u.s. Department of Labor, Dallas,
Texas, for Petitioner;
suzanne Arnold, President, Arrow crushed stone,
Inc. and John Whitehorn, Vice-President, Arrow
crushed stone, Inc., 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 9 30 U.S.C. § 801, et ~~ the "Act" charging Arrow
Crushed Stoneu Inc. (Arrow) with 15 violations of mandatory
standards and seeking civil penalties of $1 8 107 for those
violations.
During hearings Petitioner submitted a motion for
settlement with respect to all citations, except Citation
No. 4108051 9 seeking a reduction in penalties from $924 to
$462 and seeking to remove the "significant and substantial 19
classification from Citation Nos. 3609050, 3690951, 360952,
3609056 and 360959. The motion was supplemented posthearing
and was thereafter approved. An order approving the settlement and directing appropriate payment follows at the
conclusion of this decision.
The one citation remaining at issue, citation No. 4108051,
alleges a "significant and substantial" violation of the
standard at 30 C.F.R. § 56.14101(a)(l) and charges as follows:
On inspection the primary brakes on the
Terex 72-51B front-end loader were not capable
of stopping or holding the equipment stationary

691

on the incline ramp, primary feed hopper. The
loader work area and practice typically to feed
primary, will operate in the plant area with
observed foot traffic.
The cited standard provides, in relevant part, as -follows:
Self-propelled mobile equipment shall be equipped
with a service brake system capable of stopping
and holding the equipment with its typical load
on the maximum grade i t travels.
Mike A. Davis 1 an inspector for the Mine Safety and
Health Administration (MSHA) testified that during the
course of his inspection of the Arrow operation on March 31,
1992, and upon examination of the cited front-end loader, he
observed at the right front wheel what he believed to be a
brake fluid leak. As a result of this observation Davis
performed a ' 0 standing brake test" on the loader. The loader
was backed up the 100 foot
ramp, graded from zero to
4 feet and Inspector Davis signaled the equipment operator
to stop. The loader failed to stop. The test was repeated
and again the loader failed to stop. According to Davis,
during the tests the bucket was unloaded and held off the
ground 1 to 2 feet.
The loader operator, Pueblo Villasana,
also told Davis that he had applied the brakes during the
tests but they would not hold.

long

Davis concluded on the basis of these tests that the
cited standard had been violated. Davis further concluded
that the violation constituted a serious hazard. He testified that the primary hopper into which the front end loader
tmloaded
adjacent ~co Jche haul road on which there was
pedestrian
and l
duty vehicleso Indeedu at
t:.he 'c.ime he cit:.ed t.he condition he observed three persons
on the ground. The violation was further aggravated by the
absence of any berm on the ramp, the fact that the operator
did not wear a seat belt and that there was no operable backup
alarm nor operable
on the cited loader. The loader was
~lso large in size and according to Davis could cause serious
damage
a light duty vehicle such as a pickup truck. Under
the circumstances Davis concluded that i t was highly likely
injuries to occur and that those injuries could be fatal.
There
no direct evidence
this case to contradict
Inspector Davis; observationso Arrow Vice President John
Whitehorn testified that the loader operator subsequently
advised him that he had told the inspector that he had in
fact inspected the front end loader that morning and that
i t had been working fine at that timeo Whitehorn also testified that typically the loader is used in reverse when backing

692

down the ramp to the primary hopper and therefore the test
performed by Inspector Davis was not a true indication of
how the brakes would perform in reverse.
I have evaluated the testimony of Mra Whitehorn but do
not find that it contradicts the testimony of Inspector Davis
in essential respects. I find accordingly that the violation
was nsignificant and substantial. wa See Secretary v. Mathies
coal Co., 6 FMSHRC 1 (1984). I do however credit the hearsay
reports of the loader operator that there were no problems
when he inspected the front-end loader earlier that morning
and that it had been working fine at that time. This evidence
suggests that the brake condition may very well have deteriorated
during the course of operations during the morning and had not
been noticed by the loader operator
the brake tests.
Under the circumstances I find the operator chargeable with
little negligence. Considering all the criteria under Section
110(i) of the Act I find that the proposed penalty of $183 is
appropriate.
ORDER

Citation No. 4108051 is AFFIRMED with its 11 significant
and substantial" findings. The 95 significant and substantial"
findings with respect to Citation Nos. 3609050u 36095lu
3609052 1 3609056 and 3609059 are deleted. Arrow Crushed Stone,
Inc., is hereby directed to pay c~'vilpenaltieslf $645 within
30 days of the date of this d isio .

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Adminis rative rlJw Judge

J Gary

703-756 6261

Nancy B. Carpentier, Esq.

of the

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u.s. Department of Laborv 525 South Griffin Street
Suite 501u Dallas 9 TX 75202 (Certif

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Mail

Suzanne Arnold, President, John Whitehornu Vice-Presidentu
Arrow Crushed Stone, Inc., P.O. Box 693 0 Cleburne 0 TX 76031
(Certified Mail)
/lh

693

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

.APR 1 21993
COMPENSATION PROCEEDINGS

ROY FARMER and OTHERS,
Complainants

v.

Docket No. VA 91-56-C
Docket No. VA 91-57-C

ISLAND CREEK COAL COMPANY,
Respondent

VP-3 Mine
ORDER OF DISMISSAL
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern complaints for compensation
filed by the complainants against the respondent pursuant to
section 111 of the Federal Mine Safety and Health Act of 1977.
In Docket No. VA 91-56-C, the complaining miners claimed
compensation for the time they were idled as a result of a
section 107(a) Imminent Danger Order No. 3354742 1 issued by MSHA
Inspector Arnold D. Carico on December 5~ 1990o The inspector
also issued a simultaneous section 104(a) citation No. 3354743,
citing an alleged violation of mandatory safety standard
30 CoFoRo § 75o3l6u in conjunction with the imminent danger
ordero
In Docket No. VA 91-57-C, the complaining miners claimed
compensation for the time they were idled as a result of a
section 107(a) Imminent Danger Order No. 3508496 1 issued by MSHA
Inspector Claudy Jo Scamell on December 13, 1990o Contrary to
the assertion made by the complainants in their complaint, I find
no evidence that the order issued by inspector scamell on
December 13~ 1990 1 was accompanied by a section 104(a) citation.
On April 3 1 1991 1 I issued decisions in Island Creek Coal
Company Vo Secretary of Labor (MSHA} and UMWA District 28, Local
1640, Docket Nos. VA 91-47-R, VA 91-48-R, and VA 91-49-R,
vacating the aforementioned imminent danger orders and citation
which gave rise to the instant compensation claims. 13 FMSHRC
592 (April 1991) • The Secretary and the UMWA filed appeals with
the Commission, and the compensation claims were stayed pending
the Commission's review and decision. Thereafter, on March 3,
1993, the Commission rendered its decision affirming my decisions
vacating the imminent danger orders and citation. Under the
circumstances, I issued an Order to Show Cause on
694

March 16, 1993, ordering the parties to state why the previously
issued stay should not be lifted and the compensation claims
dismissed as a result of the Commission's decision. The parties
were ordered to respond to my show-cause order within ten (10)
days of its receipt.
Discussion
My show-cause order was served on the parties by certified
mail. The return postal receipts reflects that the order was
delivered to the respondent's counsel on March 22, 1993, and to
the complainant's representative on March 23, 1993. on March 25,
1993, the respondent's counsel informed me by telephone that the
respondent does not oppose the lifting of the stay and the
dismissal of these claims, and that the respondent does not wish
to respond further.
The complainant's representative of record (Roy Farmer) has
not responded to my show-cau~~ order, nor has he communicated
with me further in this regard. Commission Rule 63(a), 29 C.F.R.
§ 2700.63(a), provides as follows:
(a) Generally. When a party fails to comply with an
order of a judge or these rules, an order to show cause
shall be directed to the party before the entry of any
order of default or dismissal.
I have on several occasions in the past furnished Mr. Farmer
(at his request) with copies of the Commission's procedural rules
in several Island Creek civil penalty proceedings in which
Mr. Farmer was granted party status as the representative of
miners. Under the circumstancesu I have no reason to believe
that Mr. Farmer is ignorant of the rules. Accordingly, I
conclude and find that the compensation claims should be
dismissed because of the complainantsu failure to respond to my
Order.
ORDER
The previous stays ARE LIFTED. The compensation claims ARE
DENIEDu and these matters ARE DISMISSED.

&~~
Administrative Law Judge

695

Distribution:
Mr. Roy Farmer, P.O. Box 63, Swords creek, VA
Mail)

24649

(Certified

MarshallS. Peace, Esq., 201 West Vine Street, Lexington,
KY 40507 (Certified Mail)
Jay Dalton, General Counsel, Island Creek Coal Company, P.O.
Box 11430, Lexington, KY 40575 (Certified Mail)

ml

696

I'BDBRAL JUJIB SAFETY DD JIBAL'!rll RBVJ:BW COJDI.l:SS:IOB

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

APR 131993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION on behalf,
of Samuel Coble,
Petitioner

v.

.
.
0

DISCRIMINATION PROCEEDING
Docket No. KENT 93-1-D
A.C. No. MADI CD 92-02
Foxfire Mine

CHRISTIAN COAL CORPORATION,
Respondent
ORDER APPROVING SETTLEMENT
Before:

Judge Feldman

This case is before me as a result of the above captioned
complaint filed under Section 105(d) of the Federal Mine Safety
and Health Act of 1977. The parties now seek my approval of
their joint motion for settlement of this matter. The substance
of their proposed resolution is that the respondent, without
admitting that any discriminatory act occurred, has agreed to pay
the complainant the sum of $5,000. In return, the complainant
has agreed to request dismissal of his complaint. In addition,
t.he respondent has agreed
pay a
penalty of $200.

I have considered the information provided
support
the
parties 0 motion and I conclude that the proffered settlement
should be approved. Accordingly, the motion for the approval of
settlement IS GRANTED and IT IS ORDERED that the respondent make
payment of the sums noted above within 30 days of the date of
this order.
XT IS FURTHER ORDERED that upon receipt of paymentu
Samuel CobleQs complaint in this matter IS DISMISSED WITH
PREJODIC~.

/1

p~
Jerold Feldman
Administrative Law Judge
(703) 756-5233

697

Distribution:
Joseph B. Luckett, Esq., Office of the Solicitor, u.s. Department
of Labor, 2002 Richard Jones Rd., suite B-201, Nashville, TN
37215
(Certified Mail)
Christain Coal Corporation, Agent for Service, David L. Roberts
Route 2, outer Laffon Trail, Madisonville, KY 42431
(Certified Mail)
Robert P. Moore, Esq., 21 Sugg Street, Madisonville, KY 42431
(Certified Mail)
vmy

698

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

20006

APR 13 1993
CIVIL PENALTY PROCEEDING

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

Docket No. PENN 92-771
A.C. No. 36-04175-03569R
Robena Prep Plant

CONSOLIDATION COAL COMPANY,
Respondent

DECISION APPROVING SETTLEMENT
ORDER.TOMODIFY
ORDER TO PAY
Before:

Judge Merlin

The above-captioned case was the subject of an extensive
conference call between the undersigned and counsel for both
parties. The Solicitor subsequently filed a motion to approve
settlement of the one violation involved in this case. The
originally assessed penalty was $227 and the proposed settlement
is for $175.
citation No. 3691596 was issued for a violation of 30 C.F.R.
?:o402(a because the bathroom on the first floor of the prep
was not maintained in sanitary condition. The Solicitor
requests tha·t t:.he citation be modified to reduce "che likelihood
of injury from reasonably likely to unlikely and to delete the
significant and substantial designation. The Solicitor advised
at the conference call that after further investigationu the
amount and location of the accumulation of dirt and mud would not
tha·t an injury was reasonably likely.
§

, have considered the representations and documentation
submitted
this case along with the discussions in the conference callc and I conclude that the proffered settlement
appropriate under the criteria set forth in section llO(i) of the
Act.
In light of the foregoing, the motion for approval of
settlement is GRANTED.
It is ORDERED that Citation No. 3691596 be MODIFIED to
reduce the likelihood of injury from reasonably likely to unlikely and to delete the significant and substantial designation.

699

It is further ORDERED that the operator pay a penalty of
$175 within 30 days of the date of this decision.

,...

Paul Merlin
Chief Administrative Law Judge
Distribution:

(Certified !-1ail)

Myrna A. Butkovitz, Esq. 1 Office of the Solicitor, U.S. Department of Labor, 14480 Gateway Bldg., 3535 Market st., Philadelphia, PA 19104
Daniel E. Rogers, Esq., Consol Inc., Consol Plaza, 1800 Washington Road, Pittsburgh, PA 15241
gl/

700

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

1 61993
CIVIL PENALTY PROCEEDING

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

Docket No. CENT 92-202-M
A.C. No. 03-01475-05526
Docket No. CENT 92-204-M
A.C. No. 03-01475-05528

v.

Docket No. CENT 92-205-M
A.C. No. 03-01475-05529

LITTLE ROCK QUARRY COMPANY,
INCORPORATED,
Respondent

De Roche Creek Quarry

DECISION ON REMAND

Before:

Judge Lasher

On January 15, 1993, I issued a Decision and Order of Dismissal as a result of the Secretary's failure to show good cause
for failure to comply with a prehearing order. A brief history
of events is in order.
As the Commission noted
its remand of February 22, 1993~
Secretary requested reconsideration on January 27 1993, incHeating
the parties had Ge informal
settled 91 the case on
January 12, 1993v three days prior to the Dismissal Order. 1 The
Commission determined that my jurisdiction terminated with the
issuance of the Dismissal Order on January 15, 1993, and treated
Secretary's Motion for Reconsideration as a timely petition
for discretionary review thereof, and 'c.o afford the Secretary the
opportunity to present
position to me, vacated the Dismissal
Order, and remanded the matter for such action as I deem appropriate.
In compliance therewith, by Order dated March 2, 1993,
I gave the Secretary until April 2u 1993, to file his position in
writing l:vith me.
~ne

By Order dated February 10, 1993, I did deny the Secretary's motion
for reconsideration noting that at the time the parties informally settled the
matter on January 12, 1993, it was unknown to Respondent that the Secretary had
not complied with and Order to Show Cause I had issued, nor with a subsequent
Order. Respondent indicates that had it been in possession of all the facts, it
would in all probability have declined the Secretary's offer of settlement, an
allegation which I noted in My Order Denying Motion for Reconsideration.

701

On April 1, 1993, the Secretary filed a "Response to the
Order of March 2, 1993, Related to the Dismissal for Want of Prosecution and Response to Respondent's Renewed Motion for Dismissal.11 In that it overlooks much of the history of non-compliance
by Petitioner, including the fact that it was put on notice to
take responsive action by written motions to dismiss for its noncompliance by Respondent on October 19, 1992, and November 13,
1992, a letter dated November 25, 1992, indicating Petitioner had
not communicated with Respondent, and Orders of various sorts
from me dated October 20, 1992, December 3, 1992, and December 11, 1992, this "Response" does not contain an accurate depiction of events which led to the dismissal of the three dockets in
questiono Further, Petitioner's explanation 2 that it was a
01
scheduling oversight," etc., does not explain away the failure
to discharge the responsibility raised by repeated prompting from
both this Judge and Respondent over the period of time involved
from the issuance of the pre-hearing order on September 14, 1992,
to December 3 1 1992, when the Order to Show Cause issued. 3 In
short, Petitioner did not establishgood cause for its lengthy
non-compliance even though repeatedly urged and prompted to do
so. 4
Petitioner also argues that"··· this case has been settled u ns and that Petitioner has not received any indication from
Respondent that Respondent was not agreeable to the settlement
proposal. This argument does not appear valid. As I previously
pointed out, 5

2

In its Response to Order to Show Cause dated December 16

1992.

As the Order to Show Cause indicated, Petitioner was required to show
good cause at that "point in time" why it should not be deemed to have abandoned
its prosecution of this matter. Petitioner's allegations in its April 1, 1993,
Response regarding its compliance, which I do not concur in, are in any event
untimely, and should have been made in response to the Order to Show Causeo
L:.

The importance to the Commission's ability to function and process
proceedings to require at least minimal feedback from counsel was described in
my Decision and Order Dismissing Proceeding and will not be repeated here.
Nevertheless, it is believed the particular counsel involved is capable and
conscientious and it is hoped that whatever circumstances were developing which
led to the happenings here have been alleviated. The rights of the Respondent
must also be considered.

5

Order Denying Motion for Reconsideration dated February 1993. Although my jurisdiction to issue such had terminated, this part of the reasoning
therefrom appears applicable.

702

"In its Answer opposing Petitioner's
Motion for Reconsideration, Respondent
alleges:
9.

Unknown to Respondent, however, at the
time of such agreement to compromise, was
the fact that Petitioner had not complied
with the Order to Show cause nor with the
subsequent Order of 11 December 1992.

10.

Superior knowledge was had by Petitioner
on 11 January 1993 at the time of its
telephone call to Respondent initiating
its offer to compromise in the sum of
$760.00, that it had failed to comply with
the Court's Order.

11.

Had Respondent been in possession of such
knowledge, it in all probability, would
have declined Petitioner's offer •••• "

Under the circumstances, it would be unreasonable to infer
that the settlement, oral to begin with, would have proceeded
had the facts and procedural posture of the case been known to
Respondent.
I conclude that Petitioner's position lacks merit, such is
DENIED, and my Decision and Order Dismissing Proceeding dated
January 15, 1993, is AFFIRMED.

Distribution~

Michael H. Olverav Esq. 9 Office of the Solicitor, U.S. Department
of Labor 1 525 Griffin street, Suite 501 Dallas, TX 75202
(Certified Mail)
Mr. Ike Carter, Jr., President 1 LITTLE ROCK QUARRY, P.O. Box 548,
Benton, AR 72015
(Certified Mail)
ek

703

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
1244 SPEER BOULEVARD 1280
DENVER, CO 80204-3582
(303) 844-5266/FAX (303) 844-5268

APR 151993
DISCRIMINATION PROCEEDING

FRED L. PETERS,
Complainant

Docket No. WEST 92-311-D
Vo

DENV DC 91-02
TWENTYMILE COAL COMPANY,
DARYL FIRESTONE and
CYPRUS MINERALS COMPANY,
Respondents
DECISION

Appearances:

Patricia Jo stone, Esq., Lakewood, Colorado,
for Complainant;
Stanley R. Geary, Esq., Pittsburgh, Pennsylvania,
for Respondents.

Before:

Judge Morris

This case involves a discrimination complaint filed by Fred
L. Peters against Respondents Twentymile Coal Company, Daryl
Firestone and Cyprus Minerals Company, pursuant to the Federal
Mine Safety and Health Act of 1977, 30 UoS.C. § 801 et ~, (the
"Act 11 "
1991.

A hearing commenced in Denver, Coloradou on December 8,
The parties filed post-trial briefs.
Section 105(c) (1) of the Act provides,

part 9 as

No person shall discharge or
any manner
discriminate against or cause to be discharged or cause discrimination against or
otherwise interfere with the exercise of the
statutory rights of any mineru representative
of miners or applicant for employment in any
coal or other mine subject to this Act because such miner, representative of miners or
applicant for employment, has filed or made a
complaint under or related to this Act,
including a complaint notifying the operator
or the operator's agent, or the representative of the miners at the coal or other mine
of an alleged danger or safety or health
violation in a coal or other mine or because

704

follows~

such miner, representative of miners or
applicant for employment is the subject of
.medical evaluations and potential transfer
under a standard published pursuant to
section 101 or because such for employment
has instituted or caused to be instituted any
proceedings under or related to this Act or
has testified or is about to testify in any
such proceeding, or because of the exercise
by such miner, representative of miners or
applicant for employment on behalf of himself
or others of any statutory right afforded by
this Act.
APPLICABLE CASE LAW
The general principles governing analysis of discrimination
cases under the Mine Act are settled.
In order to establish a
prima facie case of discriminationunder section 105(c) of the
Mine Act, a complaining miner bears the burden of proof to
establish that (1) he engaged in protected activity and (2) the
adverse action complained of was motivated in any part by that
activity. Secretary on behalf of Pasula v. Consolidation Coal
Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other
grounds sub nom. Consolidated Coal co. v. Marshall, 663 F2d 1211
(3rd Cir. 1981); Secretary on behalf of Robinette v. United
Castle Coal Co., 3 FMSHRC 803, 817-18 (April 1981). The operator
may rebut the prima facie case by showing either that no protected activity occurred or that the adverse action was in no part
motivated by protected activity.
If the operator cannot rebut
the prima facie case, it nevertheless may defend affirmatively by
proving that it. also vJas motivated by ·the miner"s unprotected
and would have ·taken the adverse action in any event for
the unprotected activity alone. Pasulaf supra; Robinette, supra;
see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F2d 639, 642
(4th Cir. 1987); Donovan v. stafford Constr. Co., 732 F2d 954,
958-59 (D.C. Ciro 1984)9 Boich v. FMSHRC, 719 F2d 194, 195-96
(6th Cir. 1983) (specifically approving the Commissionvs PasulaRobinette test)o Cf. NLRB v. Transportation Management Corp.,
462 u.s. 393v 397-403 (1983) (approving nearly identical test
under National Labor Relations Act.)
Secretary on behalf of Chacon v. Phelps Dodge Corp., 3
FMSHRC 2508 0 2510-11 (November 1981) 0 rev'd on other grounds sub
nom., Donovan v. Phelps Dodge Corp.u 709 F.2d 86 (D.C. cir.
1983); Sammons v. Mine Services Co., 6 FMSHRC 1391, 1398-99 {June
1984). As the Eighth Circuit analogously stated with regard to
discrimination cases arising under the National Labor Relations
Act in NLRB v. Melrose Processing co., 351 F.2d 693, 698 {8th
Cir. 1965):

705

It would indeed be the unusual case in which
the link between the discharge and the (protected) activity could be supplied exclusively by direct evidence. Intent is subjective
and in many cases the discrimination can be
proven only by the use of circumstantial
evidence.
Furthermore, the (NLRB) is free to
draw any reasonable inferences.
Circumstantial indicia of discriminatory intent by a mine
operator against a complaining miner include the following:
knowledge 'by the operator of the miner's protected activities;
hostility towards the miner because of his protected activity;
coincidence in time between the protected activity and the
adverse action complained of; and disparate treatment of the
complaining miner by the operator.
In Bradley v. Belva CoalCompany, 4 FMSHRC 982, 993 (June
1982), the Commission stated as follows:

As we emphasized in Pasula, and recently reemphasized in Chacon, the operator must prove
that it would have disciplined the miner anyway for the unprotected activity alone. ordinarily, an operator can attempt to demonstrate this by showing, for example, past
discipline consistent with that meted to the
alleged discriminatee, the miner's unsatisfactory past work record, prior warning to
the mineru or personnel rules or practices
forbidding the conduct
question. Our
function is not ·to pass on the wisdom or
fairness of such asserted business justifi·cations3 but rather only to determine whether
they are credible and 1 if so, whether they
would have motivated the particular operator
as
imecL
SUMMARY OF THE EVIDENCE
BACKGROUND
~RED ~o PETERS of Steamboat 9 Coloradou presently works in
the electrical department of Twentymile Coal Company. He is
working under temporary status and he has been there for over
three years.

Mr. Peters has been a production foreman, a longwall utility
foreman (hourly), and a shuttle car operator. Prior to his
employment at Twentymile he was a mine superintendent for Western
Fuels for over five years as well as a surface superintendent.
He has also served as a fire boss for Mid-Continent Resources.

706

In addition, he has worked in southwestern Pennsylvania. He has
been a miner since 1971 and is familiar with MSHA's operations.
In the spring of 1991 Mr. Peters (sometimes called Fred) was
working as a shuttle car operator for Daryl Firestone, the face
boss. Other employees included Jim Conner and employees Harrison, Turnipseed, Meckley, Stewart, and Williams.
In May 1991 they were working between sections as they were
opening up a new longwall section.
In June 1991 Mr. Peters operated two different types of
shuttle cars and in early June 1991 he was operating the No. 4
shuttle car.
The No. 4 car is a DC car and the overloads on the car kept
kicking out. The heaters would kick on and this would occur
three times a trip and usually once on a return. When it kicks
out, the electrical controls on the car fail and the service
brakes automatically engage. The service brakes would not hold
this DC car.
In addition to these problems, the No. 4 car also
had loose bolts.
Mr. Peters reported this to Mr. Firestone and the maintenance foreman was told to look into it before the shift started.
They said they were working on it, but they still used the same
car.
Mr. Peters also became concerned about the air in the entry.
It was necessary to turn off the ventilation tubes.
If a door
was not totally closedv air would recirculate in the face.
Mr.
Peters talked to Mr. Firestone and the mine manager about this.
They also tried to put buffers behind the fans in an attempt to
correct the problem. Mr. Peters reported this to ~- Firestone
because he was his supervisor. These conditions ~ere not corrected before June lOp 1991.
On a Monday or Tuesday in June Mr. Peters was given a letter
after he discussed the air recirculation and the brakes with Mr.
Firestone. Mr. Peters said maybe he should shut the car down and
Mr. Firestone replied that he should give him an unsatisfactory
job performance. Mr. Firestone and Mr. Peters discussed the
matter for approximately three hours and Mr. Peters thought they
had the problem resolved. Mr. Firestone said that when he
received a promotion he would take care of Mr. Peters' problems.
On Monday Mr. Firestone said he had talked to Steve Rosene
and they were going to give him a letter anyway. He received the
letter the next day. Management did not ask him his side of the
issue. Because of that Mr. Peters felt MSHA was his only
recourse.

707

The "second advisory" letter Mr. Peters received was dated
June 10, 1991. The letter refers to Mr. Peters' "unacceptable
job performance." The letter was signed by Daryl Firestone and
acknowledged by Fred Peters on June 11, 1991 (see Exhibit C-1).
Mr. Peters had never received any first step letter.
letter was stated to be a 11 second advisory.") Mr. Peters
believes he didn't merit the letter.

(The

On June 12 Mr. Peters went to work and he noticed the bolts
were loose in the brakes. He and the section mechanic tightened
them and he operated the car for two to three hours. About 7:30
or 8:00 o'clock while going uphill he lost the tram, the brakes,
and the shuttle car rolled backwards and came to an abrupt stop.
Mr. Firestone called the maintenance people so they could resume
production. Mr. Peters didn't think he was injured. He told Mr.
Firestone he had pulled some muscles in his lower back and they
returned to mining coal.
Mr. Peters signed up to work through his scheduled vacation.
While drilling into the floor he asked the safety representative
if Mr. Firestone had ever filled out an accident report. They
could not find such a report, and in Julyu after vacations, Mr.
Firestone said he had not filled out such a report. The following night Mr. Firestone handed him an accident report form and
told him to fill it out.
Mr. Peters went to a doctor and received therapy and an MRI;
a ruptured disc was later removed.
C-2

Mr. Petersv handwritten complaint to MSHA.

Mr. Peters
t
had been discriminated against because of
the letter given him by the company (Exhibit C-1). Mr. Peters
thought the issues had been worked out in the three hour talk
with Mr. Firestone.
When I~. Peters made his complaints to Mr. Firestoneu he had
the company poi1cies in mind and he felt he should tell his
supervisor of any problems. He did not feel that the company was
complying with the third paragraph of its safety and health
policy statement which provides~
We hold every employee accountable for
following all prescribed safe work practices
and. procedures. No job will be considered so
urgent--no schedule will be considered so
rigid that the time cannot be taken to perform the job in a safe manner.
With ,respect to the shuttle car, the company did not follow
its policy. However, an operator does not shut down a piece of

708

equipment on a production shift and Mr. Peters was told to run
the shuttle car.
MSHA investigated Mr. Peters' discrimination claim. MSHA
found no discrimination and so advised Mr. Peters (Exhibit C-5).
Mr. Peters felt threatened for his job at the mine. Different
management people said maybe they could hurt their back and sit
in the guard shack.
After disc surgery Mr. Peters returned and initially worked
for the safety department and later in the electrical department.
As his back improved, he did more and more underground work and
he has continued to work in the electrical department.
Befone the accident occurred Mr. Peters was a full-time
shuttle car operator and now there is a possibility that he could
be transferred to a job he could not do.
Company policy does not" allow overtime when a person works
on light duty status. In 1992 Mr. Peters' overtime lost wages
carne to about $2,500. In 1991 he lost approximately $21,406 in
overtime.
In Mr. Peters' view, if Mr. Firestone had heeded his
complaints an accident would not have occurred.
Mr. Peters seeks the following relief: Recovery of loss of
overtime wages, attorney's fees and costs, and assignment to a
permanent position to a crew he's not on at this time.
Mr. Peters is more experienced in mining matters than Mr.
Firestone"
In J·uly 1990 he received a letter of congratulations from
·the company"
In October 1990 the company referred him to an alcohol abuse
counselor.
The pivotal portion of this case generally deals with the
events of April 23 9 1991 9 May 3 9 1991 6 June 6 9 1991 9 June 7 0
1991u June Su 1991 and June 12 6 1991.
On the credibility issues surrounding these dates I credit
the testimony of Daryl Firestone. His testimony is supported by
almost contemporaneous notes of the events.
In considering this evidence I have outlined Respondents'
evidence and footnoted Complainant's evidence.
According to Mr. Firestone when Fred Peters started on Mr.
Firestone's crew his performance was good and they got along
well.
(Tr. 225).

709

When Mr. Peters began using alcohol his performance started
to drop. Mr. Firestone discussed Mr. Peters' performance with
management, mostly the shift supervisor. He also discussed Mr.
Peters' performance with Mr. Rosene.
on April 23, 1991 Gary Harrison said Mr. Peters' shuttle car
had broken down. Gary said that on the last trip Mr. Peters was
crowding he and Allen on the high side, i.e. he was pushing them
tight to the rib.
(Tr. 238, 239). It sounded like horseplay to
Mr. Firestone. Gary and Mr. Peters hollered at each other. Gary
then told Mr. Firestone that Mr. Peters had backed up and slammed
into the miner as hard as he could with the shuttle car, putting
the lights out.
(Tr. 239).
At that point Mr. Firestone went back to the shuttle car to
locate Mr. Peters. Mr. Firestone told Mr. Peters what Gary had
said. Further, he said Allen (Meckley) had backed him up. Mr.
Peters got real defensive and.~tarted hollering at Mr. Firestone.
He told hi~ he was calling him a liar because he was insisting
his tram had stuck.
(Tr. 239). Mr. Firestone was pushing the
issue that Mr. Peters was crowding Allen and Gary.
In addition 1
they had words. Mr.Firestone and Mr. Peters again had words;
nothing was resolved and the car was down for 45 minutes.
(Tr
239$

240).

Mr. Firestone described how in a small space miners can be
crowded against the ribs. Mr. Firestone considered Mr. Peters'
conduct an unsafe act and basic horseplay. He also believed Mr.
Peters' hollering at him was insubordination. 1

on May ,. 1991 Gary {Harrison) complained that the shuttle
car operators ttleren" t helping them move from place <to place,.
Mx.
irestone called a meeting between the miner operators and the
shuttle car operators. Mr. Firestone flagged Ross and he got
out. Fred kept going. Upon being flagged again he stopped. Mr.
Peters got real defensive. He approached the four men: Connerf
Gary Harrisonu Ross Stewart and Mr. Firestone. Mr. Peters became
and he was hollering at Mr. Firestone and at Garyo He
·told Gary that
was 09 the laziestu sorriest shuttle car operator
he'd ever seen
his 1
n
(Tr. 242).
I

During this time Mr. Firestone was trying to calm Fred down.
At. t.he time he considered taking Fred outside but it was about
five minutes to quitting time.
If Mr. Firestone had taken Mr.

Mr. Peters testified he was not aware of any complaint. But he admits
he might have had words with Gary and possibly Mr. Firestone. When Mr. Firestone
asked him what happened he said the tram stuck on the shuttle car. This was the
only time they ever talked about the way he operated the shuttle car. (Tr. 49 1
SO). I am not persuaded by Mr. Peters testimony. It is considerably short of
unequivocal.

710

Peters outside the crew would have been waiting underground for
him.
Also Mr. Peters had calmed down.
Taking him "outside" means Mr. Firestone would call the
shift supervisor and tell him why he was taking such action.
( Tr • 2 4 2 , 2 4 3 ) •
The next morning Mr. Peters immediately apologized and Mr.
Firestone didn't feel it was necessary to take Mr. Peters to the
supervisor's office. 2 (Tr. 243) •
I

On June 6, 1991, Mr. Firestone and Mr. Peters met to review
performance appraisals. Such appraisals are reviewed with each
individual employee and supervisor. The evaluation was for the
last six months of 1990, Daryl indicated it was a good evaluation
but for the period in 1991 to June 6, 1991, he had some performance problems with Mr. Peters. Mr. Firestone told Fred his performance (in 1991) was not up.to par and it wasn't acceptable.
They discussed the hollering incidents. Fred agreed his performance was not up to par.
It was a good meeting. 3
(Tr. 243,
244) •
The following day 1 June 7, Daryl was shorthanded a roof
bolter and a new man (Phil) came in to run the bolter. Mr.
Peters talked to Phil, telling him to run the shuttle car and he
(Fred Peters) was going to bolt. Mr. Firestone told Mr. Peters
that Phil was going to bolt, that he wanted him to learn and he
(Mr. Firestone) was going to train him.
(Tr. 245).
Mr. Firestone didnut say so to Mr. Peters but he wasn't
going t:.o ~eward n
letting him do any job he wanted for that
dayo''
245
n

0

Fred was made He said he wasnvt going to run that shuttle
car and he was aashutting it down because of the brakes o"
(Tr.

¥;r, Peters 1cemembered this incident when Gary complained to Mr.
Firestone about the shuttle car operators not helping.
A meeting was called
between Rossu Fred, Jim and Gary.

He further agrees Gary, Daryl and Fred were talking in a heated tone
of voice but he denies putting Mr. Firestone down in front of the crew.
In
addition he does not remember apologizing.
Mr. Peters does not deny the main
elements of the May 3 events.
3

Mr. Peters testified he had an attitude problem and it was in direct
relationship to the way things were being run. (Tr. 52). During that discussion
Mr. Peters agrees that Mr. Firestone might have told him that his performance was
not up to par.
(Tr. 53). I am not persuaded by Mr. Peters' less than positive
testimony.
4

Mr. Peters didn't remember the roof bolter incident.

711

(Tr. 54).

245). Mr. Firestone said "fine.~ Right at hand was Dean Smith,
the graveyard mechanic. Mr. Firestone told Dean to go with Mr.
Peters and to work on the brakes until Mr. Peters was comfortable
enough to 'run with it. At that point Dean and Fred were working
on the brakes.
(Tr 245, 246). They were bleeding the brakes and
pulling the equipment forward and backwards. At this time Jim
(Lewis) told Mr. Peters he was walking behind him. When Jim made
the statement Mr. Peters started to tram towards him. This
scared Jim and he hollered for Mr. Peters to watch out. Jim had
said to turn your lights on in the direction of travel. Mr.
Peters got real defensive with Jim and hollered back "fuck you."
Jim walked away and went to Mr. Firestone to complain. 5
Later that day Mr. Firestone stopped Mr. Peters. Mr. Firestone wasn't real stern. Mr. Peters explained to Mr. Firestone
the same thing that Jim had discussed. Mr. Firestone asked Mr.
Peters not to holler or swear profanities at other employees. As
foreman he didn't. Mr. Peters agreed and he apologized to Jim
later that day.
(Tr. 246, ~47).
On June 8, 1991, the·crew came into the section following
the bull gang crew. The bull gang crew hadn't gotten all their
work done. Mr. Peters' cable wasn't hung and the arc bar wasn't
up.
Mr. Peters hung the cable anchor but couldn't make one trip
because he was running over his cable. Mr. Firestone asked Mr.
Peters if they were going to have to drop the anchor and rehang
the cable. Mr. Peters said he wasn't going to do it because he
had just finished it. 6
Fred was aggravated. Mr. Firestone told Mr. Peters the work
had to be done. Mr. Firestone discussed taking him 11 outside. Dv

,
is~ Mr. Peters
Mr. Firestone, and Clyde Bower~
continued working hanging the cable. Mr. Peters complained
Mr. Peters recalled a ~near missn when Jim came around a corner. Mr.
Peters ·told him he needed to watch where he was going.
He and Jim had an
argument and he possibly told Jim to ~ruck off.w
(Tr. 55).
5

Mr. Peters denies that Mr. Firestone asked him to hang cable because it
hadn't been hung by the down shift.
(Tr. 56). Mr. Peters said he didn't have
enough cable. He told Mr. Firestone that if he'd anchor his cable back there I'm
going to run over it.
Mr. Firestone said do it anyway.
So he reanchored his
cable and made one try and Mr. Firestone said you are running over your cable.
Mr. Firestone told him to move the cable back. When asked to move the cable back
for the second time he did not refuse to move it but he might have said "I don't
want to." (Tr. 56). Mr. Peters did move the cable; he was upset because he knew
he'd be running over his cable where he was told to locate it.
(Tr. 56, 57).
I credit Mr. Firestone's version of the occurrence. Mr. Peters somewhat
concedes he refused to rehang the cable. This could be considered to be an act
of insubordination to the face boss. His continuing complaints about the down
shift confirm that the downshift had not hung the cable.

712

constantly about the downshift screwing up. Mr. Firestone said
we get paid for ten hours, let's continue to work.
(Tr. 248).
Mr. Peters kept arguing. Mr. Firestone got fed up. Mr.
Firestone said they were going outside to talk to a shift supervisor. Mr. Peters and Mr. Firestone and superintendent Bob
Deirkes went into the kitchen. They discussed Mr. Peters' previous performances. Mr. Firestone told Bob he was instituting a
second advisory step and if that didn't do any good then a third
step.
(Tr. 249).
Mr. Peters agreed he was not performing but it was because
of the morale of the hourly employees. He was complaining that
the downshift crew was not doing their jobs; likewise, as to the
supervisors. Mr. Firestone said if this would be documented it
was a second advisory. Bob Deirkes and Mr. Peters then had a
discussion.
(Tr. 250).
Mr. Firestone went back up to the section. Mr. Peters
followed and said they needed to talk. They talked for two or
three hours about everything including air to bull gang problems.
(Tr. 250) .
Mr. Firestone was completely frustrated due to the time he
had been spending with Mr. Peters. They talked for three or four
hours but didn't accomplish anything except they weren't hollering at each other when it was over.
(Tr. 250). Both men agreed
they could do better at communication. Mr. Peters didn't want to
go to the second step. Mr. Firestone didn't give Mr. Peters any
indication the second step letter wasnFt going to happen.
(Tr.
25)

0

On June 9 Mr.
called Mr. Firestone at home and wanted
to know if he had talked to Steve Rosene.
(Tr. 252, 253).
Mro Firestone prepared a rough draft
the second-step
letter. He and Steve Rosene and Bob Deirkes went over it.
(Tr.
253)

0

I

The second advisory letterq dated June 10 6 199lq was
received by Mr. Peters on June 11 6 1991.
(Ex. C-1).
The parties presented evidence of events that occurred on
June 12u 1991. On that occasion bolts were tightened on the
shuttle car brakes. Four bolts held the rotary in place. The
mechanic said the rotor needed to be changed out. Mr. Peters did
not know the equipment would break. When the part broke, he was
going upgrade and the car then rolled backwards. He did not hit
the panic bar on the shuttle car. As a result of the accident,
he did not feel he had a serious injury.

713

Mr. Firestone was in the area but did not see the parts
break on No. 4 shuttle car. Mr. Peters told Mr. Firestone that
he had pulled a muscle.
on June 12 Mr. Peters told Mr. Deirkes that he wanted off
the shuttle car; he didn't remember telling him that he had hurt
his back. Mr. Peters did not know if he had received a first
step letter.
Since his back injury, Mr. Peters has received hourly wage
increases from Twentymile when there has been a general hourly
increase.
Mr. Peters has not been told by Twentymile that if equipment
is unsafe he is not to run it.
In 1991 there was a period when he did not work because of
back surgery. He also received Workmen's Compensation.

FRANK PAVLISICK of Paonia, Colorado, is employed by the
Western Coal Company as a mechanic. Mr. Pavlisick was employed
by Twentymile from February 1985 to July 1991 as a maintenance
foreman.
He and Mr. Peters were on the same crew.
On June 12, 1991, Mr. Pavlisick was called to repair shuttle
car No. 4. He found the side was broken. Also, the drive line
was broken. The witness was familiar with the particular shuttle
car.
It was an original in 1985.
Shuttle car No. 4 was not in continuous use but he had
received complaints about the brakes not holding. The resistors
had been bypassed
shuttle car No. 4 and this would cause the
:::ront of ·the shuttle car to rise up when i~c started forward.
He
·testif
t:ha:t when an operator turns in a report that a piece of
equipment is defectiveu the equipment goes to the maintenance
department. The maintenance department fixes it with the necessary parts.

car was used and worn out and the brakes had not ever
been totally replaced. To ful
repair the brakesu you need time
to get the necessary parts and such a repair could be made in ten
hours.
As maintenance foremanu failure to keep the brakes in repair
could cause loss of control of the car when the brakes failed.
Mr. Pavlisick worked with Mr. Peters until he terminated
with the company. He had never seen Mr. Peters operating the
shuttle car in any way that might adversely affect the brakes.
The equipment should do what is required of it.
It is possible
to tram with the brakes engaged and that will damage them.

714

Mr. Pavlisick would take Mr. Peters on his crew at any time.
Mr. Pavlisick believed there was friction between Mr. Firestone
and Mr. Peters.
In his opinion, it was a po~er struggle and Mr.
Firestone felt threatened by Mr. Peters.
Mr. Pavlisick had never observed Mr. Peters' conduct inappropriate or against safety. He was not aware Mr. Peters had
complained about the brakes.
In the chain of command, Mr. Firestone could remove the
shuttle car from service and have it repaired.
Mr. Pavlisick did not see any conduct on the part of Mr.
Peters to justify any reprimand of Mr. Peters.
In Mr. Pavlisick's opinion, the cars should have been taken
out of service or rebuilt; both of the shuttle cars were unsafe
to run.
As maintenance foreman, Mr. Pavlisick's responsibility was
to repair cars that break down during production.
Mr. Pavlisick examined broken parts in the shuttle car. The
metal break had egg-shaped holes. That's why he directed the new
parts be installed. Mr. Pavlisick did not know if the DC car was
designed to hold itself back. At times these cars ran 20 hours
with four hours' maintenance. Mr. Peters had worked for Mr.
Pavlisick but not on a full-time basis and he had never worked
with Mr9 Firestone and Mr. Peters for any length of time.
On June 12 the rotor part broke. If Mr. Firestone had seen
loose bolts 9 he wouldnPt know that they would break on that
particular
DOUGLAS w. OGDEN of DeBeque, Colorado, is now a section
mechanic for Powderburn Coal Company. He left Twentymile in
1992o
He had started there as a downshift continuous miner
mechanic and transferred to the electrical department. He has
been mining since 1978.
In June 1991 he worked for Frank Pavlisick. On June 12 he
was advised they needed help repairing a shuttle car in two-left.
When he arrived he learned that the shuttle car was the one that
Mr. Peters had been running. The brakes and traction were out
and it was necessary to crawl under the equipment and work under
it. Mr. Ogden explained in detail how the shuttle car brakes and
traction were restored.
The supervisors knew about the problem on the shuttle cars
as it kept coming up on conversation.

715

It was not part of Mr. Ogden's job function to analyze what
needed to be done on the shuttle cars. He had talked to Mr.
Peters socially and had seen him in the section.
After June 12, 1991, the shuttle car was returned to service
when it was repaired. Mr. Ogden was never fully in charge of
pulling down and repairing the brakes.
The bolt holes that were oblong were replaced.
dual would not notice if the bolt holes were tight.

An indivi-

Mr. Pavlisick had the authority to take defective equipment
out of service.
After the repairs were effective, Mr. Ogden thought the
brakes were operational but he believed some risk existed. They
bled the brakes after tightening the bolts.
They would also tram the brakes and if the brakes were
spongy, they would bleed them. As to shuttle car No. 4, they
would report their repairs back to Frank Pavlisick and in a few
days there would again be reports of loose bolts.
DAN GAGON of Craig, Colorado, has been at Twentymile since
March 1984 on the longwall bull gang.
In June 1991 he was a shuttle car operator and he became
acquainted with Mr. Peters. He operated the shuttle car No. 4 on
a different shift.
he reported

to June 12~ 1991, shuttle car No. 4 had bad brakes and
condition to the supervisor.

On June 12 he shut the car down because of the brakes and he
tightened the bolts. He was stopping in a safe distance but the
brakes were mushy. He had the same problems both before and
after the repairs. on June 12 he parked shuttle car No. 4 and
l:'efused to run
The
mechanic then ·tightened the bolts
and
brake rot.ors. lYI.r. Gagon also talked to the shift supervisor and the mechanics on the down shift.
After June 12 0 1991 8 the brake rotors were repaired and they
got a little better.
Mr. Gagon has no knowledge of the June 12 accident involving
Mr. Peters. He has run shuttle car No. 4 and No. 5 off and on
since 1984 and the brake rotor broke three times while he was
operating the equipment. For the last two or three years he has
lost the brakes on three occasions.
tor.

ROSS STEWART, Craig, colorado, is now a shuttle car operaIn 1991 he was on the same crew with Mr. Peters.

716

Mr. Firestone was his supervisor.
In June 1991 Mr. Stewart drove No. 4 or No. 5 shuttle car.
He didn't see the June 12 accident involving the shuttle car but
he was in the section. He reported the brakes on his car when
they were malfunctioning. These reports were made to the foreman
or the mechanic.
There was a time when Mr. Firestone and Mr. Peters were cobosses wi~ Mr. Stewart. Mr. Stewart believed there was some
friction between them.
Mr. Peters was a good worker.
Mr. Stewart believed he was familiar with the company criteria for a step 1 or Step 2 reprimand. These included unsafe
acts, horseplay, unsafe job conditions, and lack of concern for
safety.
Mr. Stewart agreed that on one occasion Mr. Peters had run
into his shuttle car, and he also had struck his once or twice.
Mr. Stewart complained about Mr. Peters having alcohol on
his breath.
At a meeting of the shuttle car operators, Mr. Firestone and
Mr. Peters yelled, and Mr. Peters criticized Mr. Harrison's performance and some words were said.
In May and June 1991 Mr. Peters complained about the down
not doing its share of the work. Alcohol was not involved
manner in the
or June 1991 incidents.
RESPONDENTS' EVIDENCE

DARLY FIRESTONE's testimony has been previously reviewed.
STEVE ROSENE has been in the employ of Twentymile Coal
Company since October 1987. He is responsible for the Human
Resources activities.
He has been involved in disciplinary matters for Mr. Peters
since April 1989. He was involved in ten formal contacts,
including a referral for alcohol abuse in 1989-1990 as well as
overall job performance in 1990 and 1991.
Mr. Peters was issued a Step 2 advisory on June 11, 1991.
Mr. Rosene is familiar with the company's corrective action
program. The program is a step program to identify performance
issues which the company tries to resolve.

717

The steps consist of what is called a first reminder which
takes place between the supervisor and the employee.
If there's
no change ·in the situation, there is a second reminder or advisory step. This involves formal documentation, letters and is
structured towards improvements.
It goes in the performance
file.
If there is no improvement, then there is a career discussion advisory where he meets with the employee and summarizes
the problem. The employee is sent home for one day with pay and
the company seeks a commitment by the employee to remedy whatever
may be the problem.
Exhibit R-7 outlines the corrective action counseling guidelines that are followed.
There is not necessarily an initial step program; the
company can go immediately to any one of the levels. The gambit
of performance issues include fighting, disruptive activities,
work quality, work quantity,-and damaging company equipment.
Miners have been terminated under this program. Mr. Rosene becomes involved in the second advisory level.
Mr. Firestone came to him concerning Mr. Peters. Mr. Rosene
had counseled Mr. Peters on work performance, disruption with
crew 9 and co-worker complaints.
Mr. Rosene was not aware of the air recirculation and shuttle car complaints. The fact that Mr. Peters had made safety
complaints did not enter the conversation when the second advisory took place.

Mro Rosene was aware of Mro Peters' back surgery and when he
:::-e·turned dt.o 7work 9 he tvas on restricted duty and the company
required a doctor's reporto When Mro Peters returnedv he joined
the electrical group 9 working mostly on the surface. Mr. Peters
has a permanent restriction, namely a so-pound lifting limit. In
view of Mr. Peters' restriction, he has not returned to work in
full capacityr although he works full-time in the electrical
department doing day-to-day duties and assisting in the maintenance of the electrical equipment. Mr. Peters requested this
assignment and it was appropriate under the circumstances.
Twentymile has two departmentsu maintenance and productionu
and people are rotated in various subdepartments for trainingo
In 1991 and 1992 overtime work at Twentymile was handled
through a sign-up system. The company posts a sheet and any
miner can .sign up. If he does, he's expected to show up for the
work. Mr. Peters could sign up for electrical work.
In the last
two years the company's overtime percentage has been high.
Twentymile has been attempting to cut down its overtime and
limit it 'to one overtime shift per employee per month. They also

718

hired additional miners to cut back on excessive overtime.
The
overtime percentage is over 10 percent and this was necessary due
to two longwall moves.
Mr. Peters accepted a lead supervisory position and employees in this category are paid an additional one and a half hours
at time and a half.
From December 1989 to July 1990, this was
his work status.
When Mr. Peters first returned to work, the return-to-work
program necessarily restricts his duty and he is limited to 40
hours per week.
Twentymile has a complaint procedure.
It's a step procedure. The employee first addresses the problem with his supervisor and the employee learns of this when he is a new hire. Mr.
Peters would have learned of it at that time.
The second advisory letter of June 10, 1991, given to Mr.
Peters recites "he (Peters) was not up to standard." The given
behavior of Mr. Peters was not as clear as Mr. Rosene would like
it to be, but the specific behavior by Mr. Peters was that he was
not doing his assigned work; his manner of doing work; his
request that miner cable be hung; his unacceptable performance;
his foul language; and his insubordination. These were discussed
with Mr. Firestone and Jody Hampton. Mr. Firestone mentioned the
recirculating air but he did not mention the shuttle car.
The company had no complaints with Mr. Peters about fighting
absenteeism.

or about

Mr" Rosene did not. ~<.now

at

.

what manner Mr. Peters was oper-

the shuttle car .
Peters wasn't given the second advisory letter because
recirculation complaints nor for the shuttle car

Rosene was not aware of Mro Petersu MSHA complaint (Ex.
C-2)
after MSHA investigated his complaint. When he talked
to Mr. Firestone there was some mention of the air in the section. Mr. Rosene did not discuss with Mr. Peters his side of the
storyv and his involvement went back to prior evaluations including the mandatory referral and Mr. Peters' work performance.
Mr. Rosene did not assume Mr. Peters was at fault and he
talked to other supervisors and mine management. He did not talk
to Messrs. Stewart or Gagan. He talked to Conner but didn't
discuss anything about the brakes. He first learned about
shuttle car No. 4 when Mr. Peters filed his complaint with MSHA
at the end of the June 1991. No report was filed by Mr. Peters
after the accident. The accident involving the shuttle car

719

losing its brakes was serious and it attracted attention when the
shuttle car shut down. On June 12 nothing was reported to Mr.
Rosene.
After his accident Mr. Peters had surgery on his back and
filed a Workmen's Compensation claim.
On June 12, 1991, the company filed a form entitled "Final
Admission of Liability" with the Colorado Department of Labor
and, in particular, with the Division of Workmen's Compensation
as it related to Mr. Peters.
(Ex. C-7).
Mr. Rosene did not talk to Mr. Peters after he learned about
shuttle car No. 4 because he felt it was inappropriate to discuss
the matter with Mr. Peters while MSHA was investigating it.
At a later time he asked Mr. Firestone if shuttle car No. 4
or the air complaints resulteq in any action, and he stated they
did not.
COMPLAINANT'S REBUTTAL

Mr. P.eters, in rebuttal, indicated that he didn't believe
there was an emergency bar on the shuttle car on June 12, 1991.
Between June 8 and the step letter of June 11, Mr. Peters
believed he had called Mr. Stuckey and stated that he had concerns over safety issues. He stated the mine was being run like
Mid-Continent Resources when he worked there in 1977-1981. He
had told Mr. Firestone about the air problems which were occurring" Mr. Firestone said he would take care of ity but other
concerns were not being taken care of.
The following morning Mr. Peters was driving the mantrap and
Mr. Firestone said it was a performance problem for him {Peters).
He also said Mr. Peters' attitude was real bad and that he wasn't
pulling his share. Mr. Peters agreed he wasn't happy about the
recirculation and the brakes and the kicking heaters some 30 to
40 times a shiftt this would engage the emergency brakes.
Prior to the evaluation in June 1991u all previous evaluations of Mr. Peters had been outstanding or excellent. There had
been no alcohol recurrence. The last one was in october 1990.
Having considered the hearing evidence and the record as a
whole, it 'is appropriate to enter specific findings of facts.
The preponderance of the substantial, reliable and probative
evidence establishes the following:

720

FINDINGS OF FACT

1. Fred L. Peters is a full-time employee of Twentymile
Coal Company (Twentymile) in the electrical department as a mine
electrician.
(Tr. 15, 87).
2.

Mr. Peters has held several mine management positions.

(Tr. 48) •
3.
In May 1989 Mr. Peters was referred by Twentyrnile to
counseling for alcohol abuse.
In July 1990 Twentyrnile congratulated Mr. Peters on completion of his alcohol abuse counseling.
(Tr. 48) •

4. On September 20, 1990 Daryl Firestone and Jody Hampton
counseled Mr. Peters about corning to work under the influence of
alcohol.
(Tr. 49).
5.
In October, 1990 Mr.·~~ters was again referred by
Twentyrnile to counseling for drug abuse.
(Tr. 49}.
6. Daryl Firestone was Mr. Peters' supervisor in the spring
of 1991.
(Tr. 18). Mr. Peters had been temporary foreman of the
same crew before Daryl Firestone.
(Tr. 49).
7. In the spring of 1991 Mr. Peters was operating two
shuttle cars, including the No. 4 shuttle car.
(Tr. 20).
8. On June 10, 1991 Mr. Peters was issued a second step
discipline letter under Twentymile's corrective action counseling
program.
(Tr. 24, Ex. C-1).
~.
Mr. Peters filed his complaint of discrimination on
June 15, 1991, because he felt it was the only way to get the
second step discipline letter removed from his file.
(Tr. 36,
Ex. C-2).

10. As of May 28, 1992, when Mr. Peters filed answers to
interrogatories the only discriminatory act which Mr. Peters was
complaining about was receipt of the second step letter. (Ex.
R-6).

11. Mr. Peters served on Mr. Firestonevs continuous miner
crew.
(Tr. 224).
12. There are several events which preceded issuance of the
second step disciplinary letter, each of which would constitute
sufficient business justification for the letter.
13. On April 23, 1991, Mr. Peters was crowding the continuous miner operators with his shuttle car, he was pushing them
tight to the rib. One of the miner operators, Gary Harrison, had

721

words with Mr. Peters about the crowding. Mr. Peters then backed
up and slammed his shuttle car into the miner, breaking the
lights on the shuttle car.
(Tr. 239, Ex. R-8). When confronted
on this matter, Mr. Peters insisted that his tram had stuck. Mr.
Firestone pressed the issue of Mr. Peters crowding the miner
operators. Mr. Peters and Mr. Firestone had words.
(Tr. 239240, Ex. R-8).
By "crowding" the miner operators (who stand
behind the miner and operate it by remote controls) Mr. Peters
was intentionally pushing them towards the rib.
(Tr. 240). Such
conduct is unsafe.
(Tr. 240).
14. Mr. Peters admits that on April 23, 1991, he ran his
shuttle car into the miner and broke the lights on his shuttle
car.
(Tr.' 49).
15. Mr. Peters admits that on April 23, 1991, he had words
with Daryl Firestone about the manner in which Mr. Peters was
operating his shuttle car.
(~;r. 50).
16. Mr. Peters admits that on the day he ran his shuttle car
into the miner (April 23, 1991) he might have had words with Gary
Harrison about crowding Gary with the shuttle car.
(Tr. 50).

17. on May 3, 1991, Gary Harrison, a continuous miner
operator, complained to Mr. Firestone that the shuttle car
operators were not helping move the cable for the continuous
miner. As a result, Mr. Firestone called a meeting of the two
shuttle car operators and two miner operators and himself.
(Tr.
24, Ex. R-9). When Mr. Firestone advised Mr. Peters that the
meeting was about helping the miner operators, Mr. Peters became
very defensive and began yelling at Mrc Firestone as he
approached the meeting. Mr. Peters yelled at Mrc Firestone and
had words with Gary Harrison. He told Mr. Harrison that he was
the laziestv sorriest shuttle car operator he had ever seen. Mr.
Peters was insubordinate to Mr. Firestone and he was abusive and
derogatory towards Mr. Harrison.
(Tr. 156, 242, Ex. R-9).
18. Mr. Peters admits that on May 3~ 1991v he was involved
a heated argument with Daryl Firestone and Gary Harrison about
the shutt.le car operators 6 unwillingness to assist the continuous
miner operators in moving the trailing cable for the miner.
(Tr.
50-52).

19. On June 6u 1991 1 Mr. Firestone gave Mr. Peters his
performance evaluation for the last 6 months of 1990.
(Tr. 244).
During the discussion concerning that performance evaluation, Mr.
Firestone told Mr. Peters that, although the evaluation for the
last 6 months of 1990 was good, Mr. Peters' performance in 1991
was not satisfactory.
(Tr. 244, Ex. R-10). Mr. Peters agreed
that his performance was not up to par.
(Tr. 244, Ex. R-10).

722

20. Mr. Peters admits that on June 6, 1991, Mr. Firestone
may have told him that his performance was not up to par.
{Tr. 53) . ,
21.
On June 7, 1991, at the beginning of the shift,
Mr. Peters wanted to run the roof bolter because the regular roof
bolter was absent. Mr. Firestone, however, directed Mr. Peters
to run his shuttle car and instructed another employee to run the
roof bolter. Mr. Peters became angry because he was not permitted to run the roof bolter. He then threatened to shut down his
shuttle car because of the brakes. At that time, the graveyard
mechanic happened to be in the area and Mr. Firestone sent the
mechanic with Mr. Peters to make sure the shuttle car brakes were
working properly. While the mechanic and Mr. Peters were bleeding the brakes, Mr. Peters was tramming the car forward and
backward. Jim Lewis told Mr. Peters that he was walking behind
the shuttle car, but Mr. Peters trammed toward Mr. Lewis without
turning on the lights in the-direction of travel and scared
Mr. Lewis. Mr. Lewis told Mr. Peters to turn on the lights in
the direction of travel and Mr. Peters responded by swearing at
Mr. Lewis.
Mr. Firestone met with Mr. Peters and asked
Mr. Peters not to swear at his fellow workers.
(Tr. 53, 55, 246247v Ex. R-11).
Tramming towards Mr. Lewis was unsafe because
Mr. Peters did not have his lights on in the direction of travel.
22. On June 8, 1991, Mr. Firestone's shift and crew followed
the bull gang crew. The bull gang had not finished its work, so
the cable for Mr. Peters' shuttle car needed to be hung and the
anchor needed to be moved. Mr. Peters and Mr. Firestone discussed the possibility that the cable may be in the way where
Mr. Firestone wanted it hung, but Mr. Firestone decided to bang
there because otherwise they would have to piggyback (loads of
coal .
Tr. 247 . Mr. Peters hung the cable as instructed and
attempted to haul coal, but the shuttle car was running over the
cable.
Therefore, Mr. Firestone asked Mr. Peters to rehang the
cable at another location and Mr. Peters refused.
(Tr. 248).
23.
Subsequentlyg Mr. Peters helped rehang the cableu but be
complained the whole time about the down shift not getting its
work done.
Mr. Peters kept arguing with Mr. Firestone about the
down shift not doing its job so Mr. Firestone decided to take
Mr. Peters
talk with Dennis Bowensv a shift superintendent.
Howeveru Mr. Deirkes 0 another shift superintendentu came by and
they had a meeting with him.
(Tr. 248-249).
24. Mr. Peters admits that on June 8 0 1991, he may have refused a directive from Mr. Firestone to relocate the cable for
Mr. Peters' shuttle car.
(Tr. 56). Mr. Peters also admits that
he had an attitude problem in June, 1991.
(Tr. 52).
25. While on Mr. Firestone's crew, Mr. Peters' performance
level began to drop during the time when Mr. Peters was using

723

alcohol.
(Tr. 226). He was counseled by Mr. Firestone and Jody
Hampton for corning to work under the influence of alcohol in
September, 1990.
(Tr. 49).
26. Mr. Peters was referred to mandatory counseling for
alcohol abuse in 1989 and again in 1990.
(Tr. 170) •
•

27. Mr. Peters' alcohol problem was part of his performance
problem. Part of the performance evaluation given to him on
June 6, 1991, referred to his previous alcohol abuse problems.
(Tr. 267) •
28. Mr. Ross Stewart has complained to Mr. Firestone about
Mr. Peters coming to work with alcohol on his breath.
(Tr. 155).
29. The way Mr. Peters operated his shuttle car was abusive
to himself and the car. Other employees, including Mr. Peters'
witness, Mr. Pavlisick, told,Mr. Firestone that Mr. Peters had to
slow down because he was going to hurt himself or damage the
shuttle car. Mr. Firestone recalls one location where the road
was rough and recalls seeing Mr. Peters really bouncing around in
his shuttle car. This was before June 12, 1991. Mechanics also
complained about Mr. Peters free wheeling the AC shuttle cars.
(Tr. 259) .
30. Mr. Peters' manner of operating his shuttle car was
causing the car to be damaged.
(Tr. 194).
31. Mr. Peters has a reputation for running his shuttle car
hard.
(Tr. 155).
32. Mr. Peters admits that Jody Hampton talked to him about
taking better care of the equipment.
(Tr. 90).
33. Mr. Stewart is aware of one instance where Mr. Peters
crowded a continuous miner operator with his shuttle car;
Mr. Stewart considered that to be an unsafe act.
(Tr. 157).
34. On one occasion Mr. Peters rammed his shuttle car into
Mr. Stewart 0 s shuttle car.
(Tr. 155).
35. Mr. Peters admits that he often became angry and complained to Mr. Firestone about the down shift not doing their job
when Mr. Firestone's crew had to finish work which the down shift
did not complete.
(Tr. 57).
36. Mr. Peters complained about the down shift not doing its
work and he complained if he had to do work that the down shift
had not completed.
(Tr. 158).
37. ~· Peters' poor work performance included, insubordination, yelling at Mr. Firestone, yelling at his co-workers,

724

refusing to do work which he was directed to do, and not helping
move the continuous miner from place to place.
(Tr. 280).
38.
Mr. Peters' failure to help move the continuous miner
from place to place was a daily occurrence.
(Tr. 280).
39.
During their discussion on June 8, 1991, Mr. Firestone
advised Mr. Peters that Mr. Firestone was going to issue a second
step disciplinary letter to Mr. Peters.
(Tr. 250).
40.
On June 8, 1991, Mr. Peters threatened Mr. Firestone.
After Mr. Firestone told Mr. Peters he was going to be issued a
second step letter, Mr. Peters said he had notes on Mr. Firestone
and other supervisors and that if he was going to lose his job,
Mr. Firestone and other supervisors would also.
(Tr. 252).
41.
On June 8, 1991, Mr. Peters attempted to convince
Mr. Firestone not to issue a second step disciplinary letter and
tried to convince Mr. Fireston~ to tell Mr. Rosene that they
(Firestone and Peters) had worked out the problem with
Mr. Peters' performance.
(Tr. 251).
42.
Shortly after June 8, 1991, Mr. Peters called Mr. Firestone at home to ask if Mr. Firestone had talked to Mr. Rosene
and to attempt to persuade Mr. Firestone not to issue the second
step disciplinary letter.
(Tr. 252). Mr. Firestone believed
Mr. Peters did not want the second step letter issued because Mr.
Peters was trying to get a truck driver job on the surface at the
mine.
(Tr. 252-253).

43. Mr. Rosene is the Human Resources Manager for Twentymile
Company. He had
that position since October 1968. Mr.
Rosene has 4 years experience
coal and noncoal mines in
hour
and management positions.
{Tr. 168).
44. Twentymile Coal Company has a corrective action counseling program which was implemented in 1988.
(Tr. 171, Ex. R-7).
45. The corrective action counsel
program has three
steps
a first reminder; a second reminder, and then a career
discussion advisory.
{Tr. 171v Ex. R-7).
46. A £irst reminder is a confidential meeting between a
supervisor and an employee to identify performance problems.
(Tr. 172, Ex. R-7).
47. A second reminder (or second step advisory} is more
serious and it includes a letter to identify problems and means
of improving.
(Tr. 172, Ex. R-7).
48.
A career discussion (or third step) advisory identifies
performance issues and the affected employee is sent home for a

725

day with pay to decide whether or not he or she can make a commitment to the guidelines, policies and procedures of Twentymile.
If the employee makes such a commitment, a joint action plan is
formulated.
If the employee succeeds in following the plan, the
employment relationship continues. If not, the employee is terminated.
(Tr. 173, Ex. R-7}.
49.
Any appropriate step of the corrective action counseling
program may be used at anytime, depending upon the severity of
the performance issues involved.
(Tr. 175, Ex. R-7).

50. Mr. Firestone was frustrated with the amount of time he
was spending concerning performance problems with Mr. Peters.
(Tr. 250).
51. Mr. Peters was issued a second step advisory letter
because his job performance was inadequate, he was disruptive on
his crew, his co-workers were complaining about the way he
treated them, he refused to hang his shuttle car cable when told
to do so by his foreman, he refused to help the continuous miner
crew move the miner, and for unsafe conduct.
(Tr. 177, 192, 196,
280) .
52. ~he second step disciplinary letter was based on concerns about Mr. Peters' performance since April 1991.
(Tr. 199).
53. Mr. Peters signed the acknowledgment on the second step
disciplinary letter (Ex. C-1), which letter specifically states
that Mr. Peters agreed that his performance was not up to
standard.
(Tr. 60).
54.
Mr. Peters admits that he tried <co persuade Mr. Firestone that it. would not be fair to give Mr. Peters a second step
disciplinary letter.
(Tr. 59).

55. Mr. Firestone's decision to issue the second step letter
to Mr. Peters was not motivated in any way by Mr. Petersf complaints about ventilation or the condition of
shuttle car.
Tr
77 J 19 6 , 2 2 1 o 2 61) •
o

56. Mr. Peters talked to Mr. Firestone and the mine manager
about ventilation issues at various times.
(Tr. 22-23}.
57. When Mr. Peters complained to Mr. Firestone about ventilation in the mineu Mro Firestone would take measurements$
If
they needed more air, Mro Firestone would notify one of the shift
supervisors who would make arrangements for the graveyard shift
to provide more airo
(Tr. 227).
58. If there was recirculation of air, Mr. Firestone would
shut down production and repair what needed to be done.
(Tr.
227) •

726

59.
Mr. Peters admits that when he identified ventilation
problems to his supervisors, various actions were taken to
correct them.
(Tr. 23).

60. The No. 4 shuttle car is the one which Mr. Peters was
operating on June 12, 1991, and generally during the time period
in question.
(Tr. 65).
61.
The No. 4 shuttle car was also operated by another
operator, Dan Gagan, on a different shift.
(Tr. 66, 138).
62.
Mr. Firestone would often run the No. 4 shuttle car
during Mr. Peters' lunch breaks.
(Tr. 65).
63.
During May and June, 1991, Mr. Firestone ran Mr. Peters'
shuttle car for approximately one hour every other day.
(Tr.
229) •

64.
When Mr. Peters complained to Mr. Firestone about the
brakes on Mr. Peters' shuttle car, Mr. Firestone and Mr. Peters
would determine if the car was safe to continue operation.
If
something needed to be done immediately, it was done.
If the
maintenance or repair could wait, it was reported to the down
shift.
(Tr. 228). This was standard practice.
(Tr. 103, 151).
65.
Mr. Firestone relied upon the maintenance foreman to
repair Mr. Peters' shuttle car.
(Tr. 277).

66.
During May and June, 1991, the brakes on Mr. Peters 1
shuttle car were adequate to stop the loaded car on an incline.
Howeveru the brakes were not as good as the brakes on the newer
AC cars.
(Tr. 230 .

67.
When the brakes failed on Mr.
v shuttle car on
June 12, 1991u it was because a brake rotor broke.
(Tr. 61).
68.
is
common for a brake rotor to break on shuttle
cars such as shuttle car No. "-L
(Tr. 13 2
146 v 256) •
A typical
dail v walk around inspect
of ~che shuttle car would not have
revealed that the brake rotor was about to break.
(Tr. 63Q 132 6
145)

0

69. Mr. Dan Gagan operated the No. 4 shuttle car on a
different crew from Mr. Peterse
(Tr. 138).
70.
On June 12u 1991, during the day shift, Mr. Gagan had
his shift mechanic check the brakes on the No. 4 shuttle car.
(Tr. 139) •

71. On occasion, Mr. Gagon shut down the No. 4 car during
his shift to check the brakes. He also reported problems with
the brakes to his supervisor and to maintenance.
(Tr. 138).

727

There was no testimony that Mr. Gagon was disciplined or of any
hostility towards him for such actions.
72. Mr. Ross Stewart is a shuttle car operator for Twentymile Coal Company. He drove the other shuttle car on Mr. Peters'
crew.
(Tr. 148).
73. At times Mr. Stewart shut his shuttle car down when he
felt it was not safe to operate.
(Tr. 150). There was no testimony of any discipline or hostility towards Mr. Stewart for such
conduct.
74. Mr. Frank Pavlisick was employed by Twentymile Coal
Company from 1985 to July, 1992. In June 1991, he was a maintenance foreman.
(Tr. 99)
75. Mr. Pavlisick's crew was not the regular crew that
worked on the No. 4 shuttle car.
(Tr. 115-116, 119). His crew
only worked on it if it broke down during a production shift.
( Tr. 116) .
·

76. Generally, if Mr. Firestone reported problems with the
brakes on the No. 4 shuttle car, they would have been fixed by a
different maintenance crew than Mr. Pavlisick's crew.
(Tr. 119).
77. When Mr. Pavlisick's crew did work on the No. 4 shuttle
car, it was safe to operate when he released it for production
work.
(Tr. 116).
78. According to Mr. Pavlisick, no one could have known that
the brake rotor was going to break on the day it broke.
(Tr.
122)

0

79o
Mr. Pavlisick does not know
the No. 4 shuttle car was
designed and constructed so the motor would hold it back going
down hills. In any event, the car still had brakes to hold it
back on hills.
(Tr. 118).

80. Mr. Pavlisickv as a maintenance foreman, had authority
take the No. 4 shuttle car out of service if he thought it was
unsafe.
(,Tro 134).
~o

81. Mr. Pavlisick admitted that he is not an expert with
regard to electrical matters.
(Tr. 101). Therefore, the opinions he gave about the electrical circuits of the No. 4 shuttle
car cannot be given any weight.
82. Mr. Doug Ogden was on Mr. Pavlisick's downshift continuous miner maintenance crew in June, 1991.
(Tr. 125).

728

83.
Mr. Ogden is aware that in June 1991, the brakes of the
shuttle cars were checked by maintenance people on the production
shifts and on the maintenance shifts.
(Tr. 143).

84. When Mr. Ogden worked on the brakes on the No. 4 shuttle
car he would check them to make sure they worked before he would
release the car.
(Tr. 133).
85.
Mr. Ogden's crew had tightened the bolts on the brakes
on the No. 4 shuttle car on occasions prior to June 12, 1991.
When they tightened the bolts, they felt the machine was operational.
(Tr. 12 9) .
86.
It was acceptable for Mr. Peters to shut down his
shuttle car if he felt the brakes were not working properly.
(Tr. 273, 275).

87.
Mr. Firestone never_decided not to have Mr. Peters'
shuttle car checked or repaired because of Mr. Peters' complaints
about the car or ventiliation.
(Tr. 262).
88.
MSHA investigated shuttle car No. 4 following the brake
failure on June 12, 1991, and found no neglect by Twentymile Coal
Company with respect to maintenance of the car.
(Tr. 213).
89.
When Mr. Peters refers to the "heaters" on his shuttle
car, he is referring to the electrical overloads.
(Tr. 75).

90.
An overload is an electrical unit that protects the
motor from drawing too much amperage.
(Tr. 20).

91. During the time in question, the "overloads" kept kickon the No. 4 shuttle car.
(Tr. 20)
92.
When the 61 heatersii would kick on shuttle car No. 4, the
power would be cut off. The shuttle car could not be operated
again
the heaters cooled and they could be reset.
(Tr.
228 y

0

93.
When the heaters kicked on Mr. Petersv shuttle car the
breaks were activated by a selinoid and they set immediately.
(Tr. 23 0) •

94.
The downshift had been working on the No. 4 shuttle car
frequently to correct the situation with the heaters kicking.
(Tr. 229) .

95.
If a shuttle car is worked on during a production shift,
it is noted on a report called a production and maintenance
report.
(Tr. 69).

729

96.
If a shuttle car is worked on during a maintenance
shift, it is noted on a report called a maintenance report.

(Tr.

69} •

97. The brakes on the No. 4 shuttle car had been worked on
several times shortly prior to June 12, 1991, as indicated in
Exhibits R-1 through R-5.
(Tr. 257).
98.
The production and maintenance report for Mr. Peters'
crew on the day shift on May 31, 1991, indicates that work was
done on his shuttle car with regard to the heaters kicking and to
replace a brake puck.
(Tr. 71, Ex. R-1).

99.
A maintenance report for the swing shift on May 31,
1991, indicates that repairs were made to the electrical system
of the No.' 4 shuttle car and that 4. 1 hours were spent replacing
the brake rotor on the right side of the shuttle car.
(Tr. 72,
Ex. R-1).
100. A maintenance report for the swing shift on June 6,
1991, indicates that work was done on the heaters on the No. 4
shuttle car.
(Tr. 76, Ex. R-2).
101. A maintenance report for the graveyard shift on June 6,
1991, indicates that additional work was done on the heaters of
the No. 4 shuttle car.
(Tr. 76, Ex. R-2).
102. A maintenance report for the swing shift on June 7,
1991, indicates that work was done on the electrical system on
the No. 4 shuttle car.
{Tr. 77 9 Ex. R-3).

103.

A main~t.enance reoort for the graveyard shift on June 7,
·that. t<JOrk was done on the brakes on the No. 4
shuttle car.
(Tr. 77, Ex. R-3).
19 91'"

ind

104. A maintenance report for the swing shift on June Bu
indicates that one man spent nine hours working on the
electrical system on the No. 4 shuttle car.
(Tr. 79-80, Ex.
1991 0

R-5)!.

105. A maintenance report for the day shift on June lOu 1991u
indicates tha'c work was done on the electrical system of the No.
4 shuttle car.
(Tr. 78, Ex. R-4).
106. A maintenance report for the day shift on June 11, 1991,
indicates that two men worked seven hours to check the tram
circuit of the.No. 4 shuttle car "for why the overloads kick."
(Tr. 79, Ex. R-4).

107. Mr. Peters testified that it is the operator's responsibility to check his car before the start of each shift. (Tr. 27}.

730

108. During the day shift on June 12, 1991, the operator of
shuttle car No. 4 had the shift mechanic work on the brakes.
(Tr. 139) .
109. On June 12, 1991, Mr. Peters noticed some loose bolts on
the brakes of the No. 4 shuttle car during his walk around inspection.
He and the section mechanic tightened up the loose
bolts.
(Tr. 27).
110. After Mr. Peters and the section mechanic tightened up
the bolts on the brakes on his shuttle car at the beginning of
his shift on June 12, 1991, he operated the car for three or four
hours before the brake rotor broke.
(Tr. 27).
111. When the brake rotor broke, Mr. Peters was driving the
unloaded shuttle car up a hill.
(Tr. 27). The car then rolled
backwards down the hill for a distance of 25 to 30 feet where it
bottomed out and came to a sudden stop.
(Tr. 27).
112. Mr. Peters is not sure whether his car had a panic bar
on June 12, 1991, but he knows he did not hit the panic bar when
the car rolled backwards.
(Tr. 64).
113. At the time Mr. Peters shuttle car rolled backwards on
June 12, 1991, Mr. Peters did not believe he had been injured and
he told Mr. Firestone that there was no problem.
(Tr. 28, 65).
114. On June 12, 1991, Mr. Peters did not tell Mr. Firestone
that he was injured.
If he had, Mr. Firestone would have either
taken Mr. Peters outside or he would have completed an accident
report.
(Tr. 255-256).
115.
subsequent 'co June 12 1 1991; while working through
vacationu Mr. Peters began to have pain going down his leg which
he believed was connected to the sudden stop of his shuttle car
on June 12, 1991.
(Tr. 29).
It was then that Mr. Peters
inquired as to whether an accident report had been filed.
(Tr. 3 o )l •

116. Mr. Peters never proved that his back injury was a
result of the sudden stop of his shuttle car on June 12, 1991,
since there was no medical expert testimony to connect the
accident to the injury.
117. Mr. Peters has been instructed by mine management personnel that if he feels a piece of equipment is unsafe, he is not
supposed to operate it.
(Tr. 88).
118. Mr. Firestone was not present in the section on June 12,
1991, when the brake rotor broke on Mr. Peters' shuttle car
because he was in another section running an errand for his
supervisor.
(Tr. 255).

731

119. Mr. Peters is not aware of any damage to the shuttle car
on June 12, 1991, when the brake rotor broke.
(Tr. 67).
120. There was no reason for Mr. Firestone to file an accident report immediately following the failure of the brakes on
June 12, 1991, because Mr. Peters said he was not injured and
because there was no damage to the shuttle car other than the
broken brake parts.
121. There was no accident report filed with respect to the
incident when the brakes broke on Mr. Peters' shuttle car on
June 12, 1991, until July, 1991. Mr. Peters did not file a
report. Accident reports are initiated at the mine by the
employee involved.
(Tr. 203).
122. Mr. Peters' complaint to MSHA states that the brakes
would not .stop his shuttle car very good with a load on; however,
his car was unloaded when the brake rotor broke on June 12, 1991.
(Tr. 66) .
DISCUSSION

As a threshold matter there is no proof in this record as to
the status of cyprus Minerals Company. Accordingly, the case is
dismissed as to said Respondent due to lack of proof.
Protected Activity
There is no question but that Fred L. Peters was engaged in
activities protected under the Mine Act when he complained about
the shuttle carsr the overloads kicking out and the service
braJces on 'che shuttle cars. In addition his complaints about
the entries and his written complaints to MSHA were furt:her protected under the Mine Act.
Q

Direct Evidence of Discrimination
As a threshold matter, it is apparent that the record fails
OlJ..sclose anv direct evidence of discrimination as to Mr. Peters" protected activities. HoweverQ as noted under the case law
direct evidence is seldom seen in such cases. Accordinglyu it is
appropriate to determine whether any circumstantial indicia might
be established by the evidence.
'i:O

~nowledge

of Protectea Activity

Twentymile's supervisor knew of Mr. Peters' safety complaints but took no adverse action.

732

Hostility to Protected Activity
There was no hostility to Mr. Peters' protected activity.
Ross Stewart, a shuttle car driver on Mr. Peters 1 crew shut down
the shuttle car when he felt it was unsafe to operate it.
No
discipline or hostility was shown towards Mr. Stewart.
In addition, it was acceptable for Mr. Peters to shut down his car if he
felt it was unsafe.
Finally, Mr. Peters had been instructed to
shut down unsafe equipment.
Compare Hicks v. Cobra Mining, Inc.,
et al 12 FMSHRC 563, 568 (Weisberger, J.).
In sum, the failure of management to manifest hostility,
displeasure or anger appears to confirm the lack of any discriminatory intent against employees who exercise such rights.

Coincidence in Time
Mr. Peters claims the second step letter of June 10, 1991,
was discriminatory conduct on'·the part of the company. However 1
that bears only a minimal relationship in time to the events
beginning April 23, 1991.
In Larry Cody v. Texas Sand and Gravel
Co., 13 FMSHRC 606, 668 it was held that adverse action was not
motivated by a two week old safety complaint.
Disparate Treatment
There is no evidence that Mr. Peters was treated differently
than other employees.
In support of his position Mr. Peters relies on Phillips v.
Interior Board of Mine Operations Appeals, 500 F.2d 772 (1974).
He asserts Phillips is identical with the case at bar.
~ d
The primary issue in Phillips is when a miner's
safety complaints first come under protection of the Mine Act
(when made to a foreman or when made to MSHA).

The determination
t.hat. case

Phillips was specific to the facts in

o

Mr. Peters further argues the failure of Respondents to
fully repair the defective shuttle car brakes constitutes discrimination which resulted in direct damage to him and deprived
him of full payq overtime and a demotion to the status of a
temporary position.
Contrary to Mr. Peters' views the record establishes extensive repairs were made to shuttle car No. 4. Mr. Peters' position apparently seeks to by-pass the work refusal rights under
the Mine Act.
On the other hand, the Judge is obliged to follow
the Commission's established analysis for considering discrimination cases.

733

On the record of this case and for the reasons stated I
conclude that any adverse action was not motivated, in whole or
in part, by Mr. Peters' protected activities. Assuming Twentymile and Mr. Firestone's actions were motivated in part by
Mr. Peters' protected activities the Respondents' established by
a preponderance of the evidence that they were also motivated by
business reasons and Mr. Peters' unprotected activities and they
would have taken the adverse action in any event.
For the foregoing reasons stated herein, this case is
DISMISSED.

Law Judge

Distribution~

Patricia Jo Stoneu Esq"u STONE & ASSOCIATESv 2535 South
Wadsworthu' Lakewoodv CO 80227
(Certified Mail)
Stanley R. Geary, Esq., BUCHANAN INGERSOLL, 600 Grant Street,
58th Flooru Pittsburghu PA 15219 (Certified Mail)

sh

734

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

April 20, 1993

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 92-548
A.C. No. 15-02706-03752-A
Hamilton No. 2 Mine

CURTIS CRICK, employed by
ISLAND CREEK COAL COMPANY,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 92-550
A.C. No. 15-02706-03754-A
Hamilton No. 2 Mine

JAMES BO JONES, employed by
ISLAND CREEK COAL COMPANY,
Respondent
CIVIL PENALTY PROCEEDING

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

Docket No. KENT 92-551
A.C. No. 15-02706-03755-A
Hamilton Noo 2 Mine

CHARLEY WRIGHT; employed by
ISLAND CREEK COAL COMPANY,
Respondent
DECISION
Appearances~

Gretchen M. Lucken, Esq., Office of the Solicitor,
UoS. Department of Labor 1 Arlington, Virginia,
for Petitioner;
Timothy M. Biddle, Esq. and Jo Michael Clise,
Esq. 1 Crowell and Moring, for Respondentso

Before~

Judge Melick

These cases are before me upon the petitions for civil
penalty filed by the Secretary of Labor pursuant to Section
110(c) of the Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 801, et seq., the "Act," charging Curtis Crick,
James Bo Jones and Charley Wright as agents of a corporate

735

mine operator, Island Creek Coal Company 1 with knowingly
authorizing, ordering, or carrying out a violation by that
mine operator of the mandatory standard at 30 C.F.R.
§ 75.400 as alleged in Order No. 3549013. 1
In pretrial motions to dismiss the Respondents objected
to the untimely filing by the Secretary of the instant
petitions. 2 In this regard the undisputed facts show that:
1.
On or about March 31, 1992, the Secretary
issued to each of these Respondents a proposed civil
penalty assessment for allegedly violating 30 c.F.R.
§ 75.400 on January 15, 1991.
2.
By certified mail on April 22, 1992, each
Respondent filed with the MSHA Office of Assessments
a notice of contest requesting a hearing on the
alleged violation and p~oposed penalty.
3. On April 27, 1992, the Secretary received
the Respondents' notices of contest.
4.
The Secretary filed the instant petitions
for civil penalty against Respondents crick, Jones
and Wright on July 6, 1992, 70 days after receiving
Respondents' notices of contest.
5.
Respondents Jones and Wright first learned
that the Secretary intended to propose individual
civil penalties when they received the March 31 1 1992,
notice of proposed penalty from the Secretary.

Section 110(c) provides as follows~
Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails
or refuses to comply with any order issued under this Act
or any order incorporated in a final decision issued under
this Act, except an order incorporated in a decision issued
under subsection l05(c), any director 1 officer, or agent of
such corporation, who knowingly authorized, ordered, or
carried out such violation 1 failure, or refusal shall be
subject to the same civil penalties, fines, and imprisonment
that may be imposed upon a person under subsections (a) and (b)."
'9

2

Rulings on the pretrial motions to dismiss were
deferred to enable the parties to develop an evidentiary
record to support their positions. Hearings on these
motions 1 as well as hearings on the merits with Docket
No. KENT 92-549, were thereafter held on November 18 and
19, 1992.

736

6.
Respondent Crick first learned that the
Secretary intended to propose an individual civil
penalty against him when the proposed individual
penalty was conferenced in October 1991.
More particularly, Respondents argue that the
petitions herein are untimely under Commission Rule 27(a)
and must be dismissed under the principles of Salt Lake
County Road Department, 3 FMSHRC 1714 (1981).
In that
case the Commission held that "if the Secretary does seek
permission to file late he must predicate his request upon
adequate cause." The Commission further held that a Respondent
could also object to a late-filed penalty proposal on grounds
that it was prejudiced by the delay. The Respondents argue
that the Secretary's late petitions fail on both counts and
should therefore be dismissed.
Commission Rule 27(a), 29 C.F.R. § 2700.27(a) provides
that 11 within 45 days of receipt of a timely notice of contest of a notification of proposed assessment of penalty,
the Secretary shall file a proposal for a penalty with the
Commission." In these cases the Secretary now admits that he
failed to comply with Rule 27(a).
In the Salt Lake decision,
the Commission held that the Secretary is not free to ignore
the time constraints in Rule 27 for any mere caprice, as that
would frustrate the enforcement purposes of Section 105(d)
and, in some cases, deny fair play to operators. Clearly these
principles are applicable as well to individual respondents in
Section 110(c) cases and, because such cases directly impact
individual rights, the concepts of fair play and due process
must be even more carefully protected.
The Commission also held in the Salt Lake decision that
absent extraordinary circumstances; the Secretary is ,
admonished to proceed by timely extension motion when extra
time is legitimately needed. 11 The Commission found unacceptable the procedures followed by the Secretary in that case
filing an instanter motion accompanying the late filed
proposal for civil penalty noting that under Commission Rule 9v
29 C.F.R. § 2700.9 a request for extension of time "shall be
f
5 days before the expiration of time allowed for the
filing or serving of the document. 99 In these cases the
Secretary failed not only to comply with Commission Rule 9,
but also failed to file any motion explaining the late
led
petitions until, and only in response to, motions to dismiss
filed by the Respondents. This cavalier disregard of the
Commission Rules of Procedure and established Commission
precedent in itself warrants dismissal of these proceedings.
G

737

,

In any event, the Secretary has failed to show "adequate
cause" for the late filing in these cases. Salt Lake, supra
at 1716. As reason for the late filing the Secretary alleges
in her post hearing brief as follows:
[T]he record reflects that the Office of
Assessments was experiencing an unusual backlog
of cases at the time the case materials were
generated and forwarded to the Solicitor's Office.
The record also reflects that the 45-day deadline
had already expired before undersigned counsel
even received the case materials, and that the
petitions were filed within 6 days of receiving
the case. 11
The evidentiary record does not, however, contrary to the
Secretary's representation 1 include any of the information
now cited by the Secretary as justification for her late
filing. As part of the Secretary's response in opposition
to the Motions to Dismiss certain representations and allegations were made, however such representations made in
pleadings are not evidence. In addition, attached to the
Secretary's pleadings was a copy of an undated memorandum
not on its face identified or associated in any way with the
cases at bar purportedly issued by the Office of Assessments
and directed to the Regional Solicitors' Offices stating the
following:
The subject case is being sent to your
office for a hearing with an Administrative
Law Judge at the Federal Mine Safety and
Health Review Commission"
rtoweverff due to the increased number of
contested cases being received in this office 1
some cases may be late coming to your office.
We apologize in advance for any inconvenience
·this may cause p and we intend to make every effort
possible to get these cases to your office as soon
as humanly possible.
If you have any questions concerning this
matter 1 please contact Edwina Pitts of my staff
at FTS 235-8344.
Again, while this document was attached to the Secretary's
pleadings, it was never introduced into evidence at the
hearings. Even if it had been properly admitted at hearings
and identified with these cases, the document needs further
explanation.

738

In addition, as noted by the Respondents in their
posthearing brief, the Secretary has apparently fallen
into precisely the routine that the Commission condemned
in the Salt Lake decision, i.e., the practice of filing
rather uncomplicated pleadings late. The use of a generic
intra-agency memorandum warning the regional solicitors
to expect late transmittal of cases from the Office of
Assessments creates an inference that the untimely filing
of pleadings had become the Secretary's practice, not the
rare exception. The untimeliness in these cases is
particularly egregious when considering that these cases
had already been delayed by the Secretary for over 14 months
before he issued a proposed civil penalty assessment. Obviously at that point the Secretary had already computed the
proposed assessments and had prepared the related workup so
his administrative tasks were minimal, i.e., the transferral
of the case files from one office in the agency to another
and the filing of a two-page "boiler plate" pleading. Under
the circumstances, and for this additional reason, the
late filing in these cases warrants dismissal.
However 1 even assuming 1 arguendo 1 that the Secretary
had presented justifiable circumstances for his violation of
Commission Rules 9 and 27 the Respondents have established
that they have been prejudiced by the late penalty proposals.
Salt Lake, supra. First, I find that the delay of 25 days
is inherently prejudicial to the Respondents, particularly
following a delay of 14 months before Jones and Wright (and
9 months in the case of Crick) were even notified that they
would be charged under Section 110(c) of the Act. The
inherent prejudice to the individuals charged in cases
under Section 110(c) is greatly exacerbated by the fact that,
mine
who generally receive immediate notice
of violations
the receipt of a citation or order 1 these
individuals did not learn of the charges against them until
well after the alleged violations had been abated, after
evidence had been removed and after memories had faded.
There was no reason for these Respondents to have been
aware when the underlying order was issued on January 15,
1991; that the Secretary would prosecute them months later
and they did not therefore have any opportunity to preserve
evidence or to effectively participate in the various stages
of the proceedings¢
It was not until March 31, 1992, over
14 months later, that the Secretary first informed Respondents
Jones and Wright that they were to be prosecuted under Section
llO(c) and 9 months later before informing Respondent Crick.

739

In addition, at hearing Respondents Jones and Wright
could not recall with any specificity the circumstances
surrounding the alleged violation and Respondent Crick's
recollection was only refreshed "a little bit" by reading
reports in the belt examiner's book. Moreover, Crick was
unable to recollect conditions on the cited belt with specific
detail"
Other witnesses also had difficulty recalling conditions
on the cited belt. Belt Examiner Grisham, who conducted the
belt examination on the day shift preceding the date of the
order, could not remember the condition of the cited belt or
any other particular belt. Belt Examiner Hatfield, who completed the last belt examination report before the order was
issued, also admitted having no specific recollection of the
conditions at the time of that examination or on the day the
order was issued. Hatfield also testified that he took notes
of his observations but that he had long since thrown them
away.
Even Inspector Gamblin.,. who issued the order, admitted
that he had no recollection of conditions on the cited belt
independent of reading the order itself. Moreover, Gamblin
candidly recognized that nwhat the conversation was two years
ago there would be no way I could tell you that."
Under the circumstances and recognizing that it would
be impossible to identify and isolate that precise quantum
of memory loss and prejudice attributable to the delay at
issue after a delay of more than a year and a half, it can
nevertheless reasonably be inferred that the former delay
contributed to the prejudice. Under the circumstances and
for this additional reason, the petitions herein must be
dismissedo
ORDER

1\

penalty proceedings Docket Nos. KENT 92-\548,
KENT 92-550 and KENT 92-551 are herrbY dismissed./ j

~

J

If
.4

i

Vf;-

1\
I

r(

II

1

I

II/

~\rv\1 LA/1/\

Gary Mel1ck
J
Admini$trative L~w Judge

~

740

'

Distribution:
Gretchen M. Lucken, Esq., Office of the Solicitor,

u.s. Department of Labor, 4015 Wilson Blvd., Suite 400,
Arlington, VA 22203 (Certified Mail)
Timothy M. Biddle, Esq. and J. Michael Klise, Esq.,
Crowell and and Moring, 1001 Pennsylvania Avenue, N.W.,
Washington, D.C. 20004-2595 (Certified Mail)
/lh

741

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

APR 2 2 1993

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

v.

CIVIL PENALTY PROCEEDING
Docket No. WEST 92-375-M
A.C. No. 26-02161-05503-A
FKC Portable

FRED KNOBEL, employed by
FKC INCORPORATEDp
Respondent
PARTIAL SUMMARY DECISION

Beforeg

Judge cetti

This case is before me upon the petition for civil penalty
filed by the Secretary of Labor pursuant to section llO(c) of the
Federal Mine Safety and Health Act of 1977 1 30 u.s.c. Set seg.,
the "Act. gn 1 The Secretary charges that Fred Knobel as an agent
of a corporate operator, namely FKC Incorporatedg knowingly
authorized,
the mandatory
alleged failure
machine.
On the issue of jurisdiction the parties request a partial
summary decision.
I agree ·that such a decision may well be an
efficient way 't'.o deal with
and result in an economy of
·;:he :oar't.ies ana Com.miss
z-esources.

Section 110c of the Act provides~

Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails
or refuses to comply with any order issued under this
Act of any order incorporated in a decision issued under
subsection (a) or section lOS(c}, any director, officer,
or agent of such corporation who knowingly authorized,
ordered, or carried out such violation, failure, or
refusal shall be subject to the same civil penalties,
fines, and imprisonment that may be imposed upon a
person under subsections (a) and (d).

742

I

STIPULATIONS

The parties have agreed to the following stipulations, which
I accept:
At all times relevant in this matter:
1. Fred Knobel was the President of FKC Rock & Sand Company, Inc.
2.

Fred Knobel wasr and is, the President of FKCu Inc.

3. FKCu Inc. is a general contractor and is engaged in
offsite gradingu filling and leveling.
4.

FKC, Inc. also grades local streets and roadways.

5. FKCu Inc. employs from 10 to 20 construction workers,
depending on the needs of any given project.
6. FKC Rock & Sand Company, Inc. owned one portable rock
crushing machine which was and is used to crush rock from construction excavation into smaller, more usable pieces.
7. FKC Rock & Sand Company, Inc.'s only business operation
was the portable rock crushing machine.
B.
The rock crusher owned by FKC Rock & Sand Company, Inc.
was and is located in the Green Valley areau and was and is moved
to various locations in that area depending upon need.
9o
There was no excavation of materials performed by the
rock crushing machine or by FKC Rock & Sand Companyu Inc.

10. The rock crusher performs rock crushing for FKCu Inc.
and other contractorso
11. On June 30, l992u the rock crusher was being used to
crush rock on ~ subcontract with other construction companies in
Green Valley"
II

The Respondent requests a summary decision based upon the
pleadingsu papers 9 filesr records and evidence herein, the affidavits of Glenn Dodd, Wes Parks and Pat L. Hickey, the Points and
Authorities and its reply to Petitioner's Response to Motion for
Summary Decision and Cross-Motion for Partial Summary Decision.
Petitioner;s motion for summary decision on the issue of
jurisdiction is based upon the arguments and authorities set

743

forth in Petitioner's Response to Motion for Summary Decision and
Cross-Motion for Partial Summary Decision and the affidavits of
Vernon Gomez and Arle Brown. In addition to the stipulations and
material set forth above there is in the file a copy of Respondent's legal identity report dated July 5, 1990 signed by Respondent's executive secretary.
I have carefully reviewed the entire record including the
arguments and points and authorities cited by the parties, the
pleading, documents, affidavits and the stipulations.
Having considered all of the above and the research and
arguments of both parties, I find the position of the Secretary
on the issue of jurisdiction well stated, in accord with precedent, and meritorious. It is adopted here by reference.
Respondent's emphasis of the term "extracted" in his interpretation of the Mine Act's,definition of mining overlooked the
relevant terms of the definition of a mine as provided in section
3(h) of the Mine Act, 30 u.s.c. 801(3) (h).
The definition of a "coal or other mine" includes "equipment. machines, tool, or other property, •.. used in, or to be used
in, the milling ... or the work of preparing coal or other minerals ... 01 30 u.s.c. 802(h) (1) (c) (emphasis added). MSHA's jurisdiction over portable crushing operations in this case is predicated on the preparation activity of crushing rock into smaller
usable pieces. The crushed rock was used for house pads and some
was sold to various contractors who haul it away for use
elsewhere
a

Rock
ordinarily
ined as any consolidated or coherent
and relatively hard mass of mineral matter" Respondent utilized
machineu the portable crusher cited by MSHA, to crush rock
into smaller usable sizes. This activity is properly characterized as the nwork of preparing coal or other minerals"
(emphasis
added) "
Accordinglyv Respondentfls reliance on the term q0 extraction 99
argue that the portable crusher is not a mining operation is
misguidedo According to the definition of mining provided in
section J(h) of the Mine Actv the portable crusher and its use in
crushing rock into smaller sized usable material is a mining
operationo
III
A legal identity report is required for newly established
mines. Respondent took the affirmative step of registering its
portable crusher "F.K.C. Portable" as a new mine with MSHA with
the Federal mine identification number 26-02161. The same mine
name and mine identity number appears on the citation at issue.

744

Although filing with MSHA for a mine identity number does not
confer jurisdiction, it strongly indicates that there can be no
claim of lack of notice or surprise when the inspection was made
and the citation issued.

ORDER AND DECISION ON JURISDICTION
Respondent's motion to dismiss this proceeding is DENIED.
Petitioner's cross-motion for partial summary decision on the
issue of jurisdiction is GRANTED.
The Secretary of Labor Mine Safety and Health Administration
has jurisdiction.

~~

Au st F. Cetti
Administrative Law Judge

Distribution~

Susanne Lewald 0 Esqou Office of the Solicitoru U.So Department of
Laboru 71 Stevenson Streetu Suite 1110u San Franciscou CA 941052999
{Certified Mail~
Ashley Eo Nitz-Holleranu Esqou NITZu WALTON & HAMMER, LTD., 514
South Third Streetu Las Vegas, NV 89101 (Certified Mail)

sh

745

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

APR 2 61993
PEABODY COAL COMPANY,
contestant

CONTEST PROCEEDINGS

v.

Docket No. KENT 92-1107-R
Order No. 3547306; 9/10/92

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

Docket No. KENT 92-1108-R
Citation No. 3547307;
9/10/92
Camp No. 9 Prep Plant
Mine ID 15-11012

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

.

CIVIL PENALTY PROCEEDING

0

Docket No. KENT 93-177
A. C. No. 15-11012-03522
Camp No. 9 Prep Plant

PEABODY COAL COMPANY,
Respondent
DECISION
Appearances~

Before

3oest u Esq. r Peabody Coal Company u
Henderson, Kentuckyu for Contestant/Respondent;
Mary Beth Bernui, Esq., Office of the Solicitor,
U. s. Department of Labor, Nashville, Tennessee 1
for
Secretary.
n

Judge Maurer
~TATEMENT

OF THE CASE

Contestant, Peabody coal Company (Peabody) has filed Notices
Contest pursuant to section 105(d) of the Federal Mine Safety
and Health Act of 1977J 30 u.s.c. § 815(d), challenging the
issuance of a section 107(a) imminent danger order and a
section 104(a) significant and substantial (S&S) citation which
were both issued on September 10, 1992, at its Camp No. 9
Preparation Plant. The Secretary of Labor (Secretary) has filed
a petition seeking a civil penalty of $700 for the alleged
violation of 30 C.F.R § 77.201 charged in the contested citation.
The proceedings have been consolidated for purposes of hearing
and decision.

746

Pursuant to notice, the cases were heard in Evansville,
Indiana, on January 29, 1993.
The general issues before me include:
(1) whether the
condition cited in the contested imminent danger order was in
fact an imminent danger warranting the withdrawal of miners;
(2) whether Peabody violated the cited mandatory safety standard
found at 30 C.F.R. § 77.201, and if so, whether that violation
was S&S; and (3) the appropriate civil penalty to be assessed for
the violation, should any be found.
Both parties have filed post-hearing proposed findings of
fact and conclusions of law, which I have considered along with
the entire record herein. I make the following decision.
ST~PULATIONS

The parties have agreed to the following stipulations, which
I accept (Tr. 5, Joint Exhibit No. 1):
1. Peabody Coal Company is subject to the Federal Mine
Safety and Health Act of 1977.
2. Peabody Coal Company, camp No. 9 Preparation Plant, has
an affect upon interstate commerce within the meaning of the
Federal Mine Safety and Health Act of 1977.
3o
Peabody Coal Company and its Camp No. 9 Preparation
Plant are subject to the jurisdiction of the Federal Mine Safety
and Health Review commission and stipulate that the
administrative law judge has the authority to hear these cases
and issue a decision.

4.
Peabody Coal Company produced 82,713,677 tons of coal in
the year 1992o

5.
reasonable penalty will not affect Peabody Coal
Companyus ability to remain in business.
DISCUSSION AND FINDINGS

Order No. 3547306, issued pursuant to section 107(a) of the
Federal Mine Safety and Health Act of 1977, 30 u.s.c. § 801
et seg. (the Act), charges as follows:
The following condition which constitutes an
imminent danger was observed in the tunnel located
below the raw coal storage silo. Methane
concentrations of 5.2% to 5.4% were measured one foot

74 7

above the coal on No. 3 raw coal belt outby No. 1A and
No. 1B raw coal feeders.
A separate citation will be issued for the
violation included in this Order of Withdrawal.
Citation No. 3547307, issued pursuant to section 104(a) of
the Act, charges as follows:
The raw coal storage silo tunnel is not being
ventilated so as to maintain concentrations of methane
below 1.0 volume per centum. Methane concentration of
5.2% to 5.4% was measured one foot above the coal on
No. 3 raw coal belt outby No. lA and No. 1B raw coal
feeders.

FIND"INGS OF FACT
1. The order and citation were issued at 9:10a.m., on
September 10, 1992, by MSHA Inspector Michael V. Moore during a
CBC inspection of the camp No. 9 Preparation Plant.
2. During the course of his inspection that day,
Inspector Moore was accompanied by MSHA Inspector Ted Smith,
Peabody Safety Manager Larry Cleveland, and miner's representative Sammy Thomas; all of whom testified in this proceeding, save
Inspector Smith.
3. During
inspection Inspector Moore took a series of
methane readings
ing a methanometer at several locations
~chroughout
prepara"cion plant and of particular significance
hereing
the area underneath the raw coal storage silo. This
area consists of a ground-level space in the silo structure open
to the outdoors through an opening approximately 20 feet by
20 feet.
The area underneath the silo contains two coal feeders
which feed raw coal from the si
storage area above onto a coal
conveyor bel
conveys coal out ·through the 20 feet by
20 feet opening to the preparation plant.
4. The portion of ':.he coal conveyor bel tline which is
located under the raw coal storage silo
covered by a tight=
fitting metal cover which serves to contain coal dust. This
cover has openings behind each of the feeders and is replaced at
the tail end of the beltline by a metal mesh guard. The cover
extends approximately to the point at which the beltline exits
the area under the silo; at this point it is replaced by an
arched corrugated metal cover with openings in the sides.

748

5. Inspector Moore obtained various readings indicating the
presence of methane gas. He obtained one reading in the
2.2 to 2.4 percent range by opening an inspection door between
the two feeders of the silo and holding his methanometer above
the coal flow under the belt cover while the conveyor belt was
running. He obtained another reading in excess of 2 percent
methane by opening an inspection door in the chute area. He
obtained two additional readings in excess of 2 percent methane
further down the beltline toward the outside. These four
readings were each taken above the coal flow on the running belt
inside the belt enclosure.
Inspector Moore then proceeded to the area where the belt
enclosure comes out of the silo and enters the corrugated metal
belt cover outside of the silo~ He positioned himself on top of
the belt enclosure and placed his methanometer through the
opening of the covered belt at the point where it ends, holding
it above the coal flow and obtained a methane reading of
5.2 to 5.4 percent. Inspector Moore then obtained another
methanometer and retested this area holding both methanometers
above the coal flow, and both methanometers measured 5.2 to 5.4
percent methane. He then extended his arm inside the corrugated
metal cover over the beltline outside the silo and obtained a
reading of 3.7 percent methane.
6" All the other methane readings taken by the inspector in
the area underneath the silo showed 0-1 percent concentrations of
methane gas" These readings were all taken in the general
atmosphere under the silo as opposed to inside the belt
enclosure i~self.
7. Peabody employees regularly take methane readings of the
general atmosphere in the area underneath the raw coal silo, but
do not take them under the beltline cover while the coal is
flowing.
Typically~ methane is not detected
the general
atmosphere under the coal silo.
8. Several tests were run by Mr. Randy Wolfe, Supervisor of
Safety Engineering at Peabody subsequent to Inspector Moorews
issuance of the order and citation at bar. He measured airflow
at the end of the covered section of the beltline (location R-4
on Joint Exhibit 2) and found an average airspeed of 276 feet per
minute; and an average airflow volume of 552 cubic feet per
minute with the belt running but the exhaust fan off. In order

749

to determine the airspace volume between the coal and the
beltline cover, Wolfe had the belt stopped several times and took
measurements. He found that the clearance between the coal and
the belt cover ranged from 10-1/2 to 6 inches (the coal surface
undulated because of the way the feeders work) and averaged
8-3/4 inches between the top of the coal and the belt. He also
checked for methane when the beltline was stopped with coal on
the belt and found none. Based on these measurements and
observations, it was Wolfe's opinion that methane was being
liberated while the coal was being fed onto the beltline, and
this methane was carried outward to the end of the covered area
by the natural ventilation created by the openings in the
beltline cover (at the tail and behind each feeder) and the
movement of the peaks and valleys of the coal. Wolfe also opined
based on his measurements that it would have been impossible for
Inspector Moore to take his t:E?adings underneath the cover of the
beltline and still be at least 12 inches away from the flowing
coal.
FURTHER PISCUSSION AND CONCLUSIONS

The mandatory safety standard set forth at 30 c.F.R.
§

77e201 requires that with regard to surface installations

n[t]he methane content in the air of any structure, enclosure or
other facility shall be less than 1.0 volume per centum."
It is well recognized in the mining industry that methane
measurements made closer than 12 inches from the point of methane
liberation are not representative of the general atmosphere being
sampled because of the undue influence of the methane source
Inspector Moore testified that he tried to take his methane
readings at least 12 inches from the coal on the beltline because
this was 0 ~the accepted practice underground and I related it to
00
surface
He conceded 'that had he measured closer to
t:he coal t.han 1 foot 9 he would expect a higher methane reading
than he would have obtained 12 inches or more away from the coal.
Taking the reading at least 1 foot off the top of the coal flow
allows the natural ventilation to dilute any methane that may be
t:.here.
o

o

o

o

Inspector Moore, however, was unwavering in his testimony
that he took the six methane readings identified on Joint
Exhibit 2, and discussed herein, supra, at least 12 inches away
from the coal on the beltline. But he also testified that he
took five of these readings below the plane of the tight-fitting
beltline cover. The sixth was taken under the corrugated metal

750

beltline cover outside the silo. On the other side, Mr. Wolfe,
who actually measured coal heights at several points while the
belt was stopped, testified that there was only 6 to 10 1/2
inches of clearance between the coal (which varied in height) and
the belt-enclosing cover.
I am convinced by Mr. Wolfe's testimony that Inspector
Moore's methane measurements must have been taken less than
12 inches from the top of the coal while it was running on the
beltline. Wolfe's analyses, tests and measured observations are
more inherently trustworthy than Moore's "eyeball" estimate of
this distance which he made while the belt conveyor was in
motion.
Accordingly, I find and conclude that the methane readings
taken by Inspector Moore thatformed the basis for the order and
citation at issue herein, would have been some indefinite amount
lower had they been taken at least 12 inches off the coal.
However, notwithstanding that fact, I am still going to give the
Secretary the benefit of the doubt that even though they would be
somewhat lower than stated, they would still be in excess of
1 percent.
Turning to the mandatory safety standard at issue herein,
Peabody called Donald w. Mitchell as an expert witness in the
mine safety field. Earlier in his career, he had participated in
the drafting of the regulations which appear in the 30 C.F.R.
§ 77.200 series as the immediate supervisor of the task force
responsible
their preparation. He testified that
CoFoRo § 77o201 was a surface safety standard adapted from the
underground safety standardsr and based on his involvement in
preparing the rule,
was his opinion that section 77.201 was
never intended to apply to methane concentrations in such
relatively confined areas such as the space under the cover of
covered beltlinesF and that ~enclosure" as that word is used in
standardf was contemplated to apply to much larger areas such
as control rooms and that type of enclosure within a preparation
plant. In the context of the area under the raw coal silo at
Peabody's camp No. 9 Preparation Plant, he opined the standard
would be designed
limit methane in the atmosphere in the
structure generally, not specifically in that confined space
under the belt cover. Mr. Mitchell further testified that he was
not familiar with any previous instance in which an MSHA
inspector has taken methane measurements underneath the cover of
a beltline. Inspector Moore agreed that it was a new practice in
his own experience.
I concur with Mitchell and Peabody. A covered beltline is
not a "structure, enclosure or other facility" within the meaning

751

of 30 C.F.R. § 77.201. The enclosed area under the raw coal
storage silo where the covered beltline is located is the
"structure, enclosure or facility" for purposes of the standard,
which is violated if the methane concentration in the general
atmosphere of the structure exceeds one percent by volume.
Irrespective of the interpretation of the mandatory safety
standard alleged to have been violated, it is also alleged that
the methane levels found by Inspector Moore represented an
imminent danger.
Section 3(j) 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."
30 u.s.c. § 802(j). In Rochester & Pittsburgh Coal Co.,
11 FMSHRC 2159, 2163 (November 1989), the Commission noted that
"the u.s. courts of Appeals have eschewed a narrow construction
and have refused to limit the concept of imminent danger to
hazards that pose an immediate danger." {citations omitted).
The Commission noted further that the courts have held that "an
imminent danger exists when the condition or practice observed
could reasonably be expected to cause death or serious physical
harm to a miner if normal mining operations were permitted to
proceed in the area before the dangerous condition is
eliminated ... Id., guoting Eastern Associated Coal Corp. v.
Interior Bd. of Mine Op. App., 491 F.2d 277, 278 (4th Cir. 1974).
The Commission also adopted the Seventh Circuit's holding that an
inspector 9 s finding of an imminent danger must be supported
00
unless there
evidence that he has abused his discretion or
authority" 0' 11 FMSHRC at 2164 quoting Old Ben Coal Coro. v.
Tnterior Bd. of Mine Op. APP·u 523 F.2d 25 0 31 (7th Cir. 1975).
In Utah Power & Light Co., 13 FMSHRC 1617, 1627 (October
1991) , the Commission reaffirmed that an MSHA inspector has
considerable discretion
determining whether an imminent danger
exists. However the Commission held in these cases that there
must be some degree of imminence to support an imminent danger
order and noted that the word 01 imminent 11 is defined as nready to
take place[$] near
hand[;] impending •.. [v] hanging
threateningly over one~ s head [ ; ] menacingly near. uu 13 FMSHRC
at 1621 (citation omitted). The commission determined that the
legislative history of the imminent danger provision supported a
conclusion that 01 the hazard to be protected against by the
withdrawal order must be impending so as to require the immediate
withdrawal of miners. 01 Id. Finally, the Commission held that an
inspector abuses his discretion, in the sense of making a

752

decision that is not in accordance with law, if he issues a
section 107(a) order without determining that the condition or
practice presents an impending hazard requiring the immediate
withdrawal of miners. 13 FMSHRC at 1622-23.
The Commission has also held that, in an imminent danger
case, the judge must determine "whether a preponderance of the
evidence shows that the condition or practice, as observed by the
inspector, could reasonably be expected to cause death or serious
physical harm, before the condition or practice could be
eliminated." Wyoming Fuel Co., 14 FMSHRC 1282u 1291 (August
1992). The Commission went on to explain that, in making such a
determination# a judge "should make factual findings as to
whether the inspector made a reasonable investigation of the
facts, under the circumstances, and whether the facts known to
him, or reasonably available :t.o.him, supported issuance of the
imminent danger order.n 14 FMSHRC at 1292.
The Commission has also very recently held that:
While the crucial question in imminent danger
cases is whether the inspector abused his discretion or
authority, the judge is not required to accept an
inspector's subjective "perception" that an imminent
danger existed. Rather, the judge must evaluate
whether, given the particular circumstances, it was
reasonable for the inspector to conclude that an
imminent danger existed. The Secretary still bears the
burden of proving his case
a preponderance of the
evidenceo Although an inspector
granted wide
scretion because he must act quickly to remove miners
from a situation that he believes to be hazardousu the
reasonableness of an inspector 1 s imminent danger
finding is subject to subsequent examination at the
evidentiary hearing.
Island Creek Coal Co. 9 Docket Nos. VA 91=47-R 9 91-48-Rv and
91-49-R 15 FMSHRC
(March 3 9 1993)o
Inspector Moore testified that the high level of methane
found inside the enclosed belt conveyor and the presence of coal
dust on the belt could cause an explosion which would result in
bodily injury such as burns or death to any personnel working in
the area. He also testified that the possibility of an explosion
was intensified by the presence of an ignition source in that
roof bolts, mining machine bits, and other types of metal objects
found intermittently mixed in the coal in the silo could strike
the metal structure of the silo and create a spark.

753

Additionally, the Secretary presented testimony by Clete
Stephan, an expert in the field of explosions related to coal
mining. Mr. Stephan stated the methane levels found by Inspector
Moore were within the explosive range and that the addition of
coal dust on the belt conveyor would heighten the explosibility
of the methane. Mr. Stephan also testified that there were four
potential ignition sources that could have been present
including: spontaneous combustion in the silo, metal to metal
contacts such as Inspector Moore discussed, the possibility of
welding or cutting by Peabody employees in the area of the silo
and rollers on the belt conveyors which can become stuck and
generate enough friction to increase the temperature on the
beltline.
It is undisputed that cutting or welding is not performed
while the raw coal beltline at... camp No. 9 Preparation Plant is
running. Mr. Mitchell discounted the possibility of methane
ignition by spontaneous coal combustion due to the lack of any
history of such combustion at Camp No. 9, and the fact that the
type of coal handled has little tendency to spontaneous heating.
Based on the nature of the materials likely to be present on the
belt and the amount of energy available, Mitchell did not believe
that sparking or friction due to materials on the belt striking
the beltline cover was a likely ignition source, and he did not
believe that rollers becoming stuck and heated was a likely
ignition source because studies have shown that temperatures
associated with stuck rollers are below the ignition temperatures
of either coal or methane and because there were no accumulations
coal dust around the rollers. Mitchell also considered and
discounted static electricity as an ignition source because the
beltline is grounded for its entire length and because the
humidity is high. Mr. Mitchell also considered the possibility
of ignition due to electrical equipment, which was not likely
because the electrical equipment within the facility was designed
to be incapable of igniting a vapor or gas.
In choosing Mr. Mitchell~s opinion over that of Mr. stephan,
I have considered that Mitchell 0 s opinions were based, at least
in partu on his personal inspection of the raw coal silo, an
investigation into the operational history of the facility and on
the physical data gathered by Mr. Wolfe, including the important
factor that the inspectoris methane readings had to have been
taken within 6 to 10 1/2 inches of the coal vice a minimum of
12 inches, as is standard practice. Mr. Stephan, on the other
hand, was not sure he had ever visited the facility in question
and he had accepted the inspector's methane readings at face

754

value. Therefore, his op1n1ons were necessarily of a general
nature, not specifically related to conditions and practices at
this facility or taking into consideration the manner in which
the readings were obtained and they accordingly carry less weight
than Mitchell's in resolving the issues in these cases.
Mr. Mitchell and others testified that the standard practice
in measuring methane was to measure at least 12 inches from the
coal in order to obtain a measurement representative of the
"general body" of the atmosphere being measured. High percentage
concentrations of methane coming out of the surface of the coal
(as in these cases) are unavoidable and do not represent a hazard
in the absence of an ignition source. He also testified that
ignition of methane under the belt cover was not likely due to
the absence of an ignition source but that even if an ignition
should occur it would be a "deflagration" rather than an
explosion and would not endanger anyone who might be in the area,
which is in and of itself, a rarity. Mr. Shirkey estimated that
typically about 15 minutes per shift of work would be performed
in the area under the raw coal storage silo. A certain volume of
gas is required, according to Mr. Mitchell; you need more than a
small pocket of air in the explosive range in order to sustain an
explosion.

Furthermore, the highest methane reading obtained by
Inspector Moore and the one cited in the order and citation was
taken at position R-4 in Joint Exhibit No. 2. At that location,
the methane is virtually outside; it is within inches of being
outside and the potential ignition sources in that area are as a
matter nil.
8

llyf it is undisputed that the covered beltline under
the raw coal storage silo at Camp No. 9 has been in existence and
in substantially the same condition and configuration since
approximately 1981. It is also uncontested that no fires and/or
have occurred on the
that time. Yet the
contendsu based on the methane
measured by
Inspector Moore on September lOu 1992 1 that a methane ignition is
ouimminent. au Mr. Stephan testified that an explosion will
occuru and that the only question is when. This
discrepancy between actual experience and the Secretaryus theory
defies explanationu and has not been explained to my satisfaction
this record.

Inspector Moore's readings in excess of 1 percent methane
under the beltline cover do not represent a concentration of
methane in excess of 1 percent in the general atmosphere of the
structure in violation of 30 C.F.R. § 77.201 and do not represent
an imminent danger in the absence of an ignition source, or a

755

sufficient volume of methane to cause any real damage, assuming
an ignition. Accordingly, Order No. 3547306 and Citation
No. 3547307 will be vacated herein.

ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1. Section 107(a} Order No. 3547306 IS VACATED and
Peabody's contest IS GRANTED.
2. Section 104(a) Citation No. 3547307 IS VACATED and
Peabody's contest IS GRANTED.
3.

The captioned cases ~E DISMISSED.

Law Judge
Distribution:
David R. Joest, Esq., Peabody Coal Company, 1951 Barrett Court,
P. o. Box 1990, Henderson, KY 42420 (Certified Mail)

Mary Beth Bernuiu Esq.u Office of the Solicitor U. S. Department
of Labor 2002 Richard Jones Roadu Suite B-201v Nashvilleu TN
37215 {Certified Mail)
dcp

756

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

APR 2 91993
CIVIL PENALTY PROCEEDING

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

Docket No. WEST 92-305-M
A.C. No. 05-2846-05521

v.

Del Camino Pit

VARRA COMPANIES,

INC. ,
Respondent
DECISION

Appearancesg

Kristi Floyd, Esq., Office of the Solicitor,
u.s. Department of Labor, Denver, Colorado,
for Petitioner;
Thomas Ripp, Esq., Wheat Ridge, Colorado,
for Respondent.
Judge Morris

!Seforeg

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration (MSHA)u charges Varra Companiesu Inc.
("Varra"), with violating safety regulations promulgated under
the Federal Mine Safety and Health Act 9 30 U.S.C. § 801! et seq.
(the ~ Act "; "
0

9

A hearing on the merits was held in Denver 9 Coloradou on
December 29 9 1992. Respondent filed a post~trial brief.
SETTLEMENTS

At the commencement of the hearing, Respondent moved to
withdraw its contests as to Order Nos. 3905712, 3905713, and
390514.
The motion should be granted.

757

(Tr. 8).

The remaining enforcement documents were litigated particularly as to negligence, unwarrantable failure, and civil
penalties.

ST:IPOLATIONS
The parties stipulated as follows:
1.
Varra Companies, Inc., is engaged in mining and selling
of sand and gravel in the United States, and its mining
operations affect interstate commerce.
2.
Respondent is the owner and operator of the Del camino
Pit, MSHA I.D. No. 05-2846.
3.
Respondent is subject to the jurisdiction of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
~(the "Act").

4.
matter.

The Administrative Law Judge has jurisdiction in this

5.
The subject citation and orders were properly served by
a duly authorized representative of the Secretary upon an agent
of Respondent on the date and place stated therein, and may be
admitted into evidence for the purpose of establishing their
issuance. Moreover, the parties hereby stipulate to the facts
contained in each citation and order and the designation of significant and substantial in each citation and order" The only
issue remaining t'lith. regard to each citation and. order is the
degree
negligence 9 which affects the designation of each
order as an unwarrantable

6.
The exhibits to be offered by Respondent and the Secretary are stipulated to be authentic but no stipulation is made
as to their relevance or the truth
the matters asserted
t.h.ereino

it.y

The proposed penalty will not affect Respondent's
continue in businesso

8o

The operator demonstrated good faith in abating the

violation.c
9o
Respondent is a small mine operator with 13,446 tons of
production or hours worked in 1990.

10.
The certified copy of the MSHA Assessed Violations
History accurately reflects the history of this mine for the two
years prior to the date of the citation and orders.

758

Citation No. 3905711

This citation, issued under Section 104{d) (1) of the Act,
provides as follows:
The superintendent was observed operating (tramming)
the cat 416 backhoefF.E.L. and was not wearing a seat
belt. The cat 416 (Serial No. 5PC01511) was used for
various jobs at the plant and pit and as a "Gofer")
shuttle for equipment and parts, etc. Management is
aware of seat belt requirements. This is an
unwarrantable failure.

The regulation allegedly violated, 30 C.F.R. § 56.l4l30(g},
provides as follows:
(g)

Wearing •eat belts.

Seat belts shall be worri by the equipment operator
except that when operating graders from a standing
position, the grader operator shall wear safety lines
and a harness in place of a seat belt.

ARTHUR Lo ELLIS, an MSHA metal and nonmetal inspector for
the past five years, issued Citation No. 3905711.
The citation was issued when Mr. Ellis observed a small
front-end loader being operated about the plant. The operator of
the loader, Mike Ramsey, was not wearing a seat belt. It is a
requirement that an equipment operator wear seat belts in these
circumstanceso
This particular equipment
not a grader but it is a wheel
loader and wheel tractoro Seat belts are required on all mobile
equipment.
Mr. Ramsey told the inspector that he knew the equipment
operator is required to wear seat belts.
Mr. Ellis considered the operator's negligence to be high as
there was no excuse for the violation. The only excuse offered
by Mr. Ramsey was that he was only going a short distance.

The citation was abated when Mr. Ramsey stated he and all
employees would wear seat belts and he would so advise the other
employees •.
MIKE RAMSEY is the superintendent of this sand an gravel
operation. At the time of the inspection, he was loading steel
into his backhoe. He observed Mr. Ellis on the premises and

759

drove over to talk to him. The weight of the material in the
backhoe was insufficient to affect the balance of the equipment.
Mr. Ramsey described the terrain over which he drove as
being smooth and it could not flip over a backhoe in any manner.
As he also indicated, he had never seen any vehicle roll over on
that terrain, nor had he ever received any reports to that effect.
It was not his intention to flaunt the seat belt rule.
On the day of the inspection, all of the individuals at work
were experienced operators who had been told about the necessity
of wearing seat belts.
CHRISTOPHER VARRA testified he is the general manager of
Varra Companies Incorporated.
Before the inspection by Mr. Ellis, the operators of the
equipment had been told to use seat belts. The company had not
received any prior seat belt citations (see Ex. G-1).
DISCUSSION
belt.

It is apparent the superintendent was not wearing a seat
Accordingly, the citation should be affirmed.

It is further uncontroverted, as stated in Varra's brief,
that Mr. Ramsey was driving over level terrain to meet the
inspector. The loader was not out of balance and a loader had
never overturned in this area.
these circumstancesu I conclude Mr. Ramseyvs conduct
i:nvol vedl ordinary negligence. The terms owunwarrantable
:::ailureQu and 0'negligence 11 are distinguished in the Mine Act. A
finding by an inspector that a violation has been caused by an
operator's unwarrantable failure to comply with a mandatory
health or safety standard may trigger the increasingly severe
enforcement sanctions of section 104(d). 30 u.s.c. § S14(d).
Negligenceu on the other handu is one of the criteria that the
Secretary and the Commission must consider in proposing and assessingv respectively 0 a civil penalty for a violation of the Act
or of a mandatory health or safety standard.
430 u.s.c. S§
815(b} (1) (B) and 820(i). Although the same or similar factual
circumstances may be included in the Commission's consideration
of unwarrantable failure and negligence, the concepts are distinct. See Quinland Coals. Inc., 7 FMSHRC 1117, 1122 (August
1985); Black Diamond Coal Co., 9 FMSHRC 1614, 1622 (September
1987). Nevertheless, as explained in Emery, (9 FMSHRC 1997} and
Youghiogheny and Ohio, (9 FMSHRC 2007) aggravated conduct constitutes more than ordinary negligence for purposes of a special
finding of unwarrantable failure.
"Highly negligent" conduct
involves more than ordinary negligence and would appear, on its

760

face, to suggest an unwarrantable failure. Thus, if an operator
has acted in a highly negligent manner with respect to a violation, that suggests an aggravated lack of care that is more than
ordinary negligence.
Eastern Associated Coal corp., 13 FMSHRC 178, 186 (February
1991) .
Varra's brief observes that cases interpreting "unwarrantable failure" do not yield any facts which match the seat belt
issues here. I agree. However, the Commission has recognized as
relevant to unwarrantable failure determinations such factors as
the extent of the violative condition, length of time it existed,
whether the operator was placed on notice that greater efforts
are necessary for compliance, and the operator's efforts in abating the violative condition. Peabody Coal Co., 14 FMSHRC 1261
(August 1992).
Mr. Ramsey's conduct involved only ordinary negligence.
Accordingly, it follows that the unwarrantable failure allegations should be stricken.
Citation No. 3905711 should be affirmed.
Citation No. 3905715

§

This citation alleges a violation of 30 C.F.R.
56.14130(i). The citation reads as follows:
The operator of the Cat D-9 Dozer, Serial No. 66A7250,
was not wearing a seat belt. The seat belt was rotten
and one side was torn almost in two pieces. While
examining the belt, it fell in two pieces. The dozer
was being operated in the pit on sloped and uneven
ground. Management was not requiring seat belt use.
This is an unwarrantable failure.

The regulation provides as follows:
qi)

Seat belt aaintenance.

Seat belts shall be maintained in functional
condition, and replaced when necessary to assure
proper performance.

Mr. Ellis indicated the D-9 dozer involved here is a crawler
tractor with the blade on the front.

761

In Mr. Ellis's opinion, the operator was highly negligent.
He based this view on the fact that the superintendent said he
was aware of the defective seat belt. In addition, MSHA had
issued a program manual relating to seat belts. The condition
that existed here had been there for some time.
It takes five minutes to install a seat belt. Mr. Ramsey
testified that he was not aware that there was anything wrong
with the seat belt before the inspection. After the citation was
issued, the seat belt was replaced.
Mr. Ramsey is familiar with the types of equipment that are
required to have seat belts, but he was not aware that the seat
belt on this equipment had anything wrong with it before the
inspection. After the citation was issued, the seat belts were
replaced.
At the pit there are no heavily traveled roads, although
some of the heavy equipment has to go up and down the slopes.
Mr. Ramsey did not know how long it would take for a seat
belt to rot.
CHRISTOPHER VARRA stated the D-9 dozer had been purchased a
few months before the inspection. He was not aware that the seat
belt had rotted. Before the inspection, the operator of the
equipment had been told to use seat belts. Mr. Varra opined that
the seat belt was probably overlooked when the equipment was
purchased.
Mr" Varra agreed he
responsible for enforcing the seat
la'tv and _:f any violations are found they will lbe written up.
Howeve~: he doesn•~ personal
check to see that seat belts are
used
operators.
t

DISCUSSION
The evidence establishes the seat lbelt was not maintained in
a functional condition. The belt was rotten and one side was
torn
almost two pieces. In factQ the belt fell in two pieces
when the inspector examined
The described conditions should
have been readily observableo
Although Messrs. Ramsey and Varra testified they were not
aware of the defective beltv they should have been since the
equipment had been purchased only a few months before the
inspection.

762

The above facts indicate a high degree of negligence on the
part of the operator. As a result, the violation was due to the
operator's unwarrantable failure.
Citation No. 3905715 should be affirmed.
citation No. 3905716

This citation was amended to allege a violation of 10 C.F.R.
(cited above). The citation reads as follows:

§ 56.14130(g)

Seat belts were not provided on the Komatsu Dozer
Model No. 355A, exposing employees to the possibility
of being thrown about and from the cab of the dozer.
The dozer was used in the pit to mine with. Management was aware of this·eondition. This is an unwarrantable failure.
The dozer was provided with
R.O.P.S.

MSHA Inspector Arthur Ellis issued this citation when he
observed Jim Whitley, an employee, operating the Komatsu dozer
without wearing a seat belt. The seat belt had been missing
since a new seat had been installed on the dozer. Mr. Ellis
indicated the regulations require a seat belt on this type of
equipment, which is a crawler tractor.
Mr. Ellis further designated this situation as one of high
negligence. This is based on the fact that Mr. Ramsey said he
was aware that seat belts were required and an MSHA policy manual
had been sent to all operators.
The company offered no excuse.
The violation was abated by seat belts being installed and
employees being instructed
their use.
Mr. Ramsey indicated that after the seat was unbolted, a
seat belt was found lying under the seat. The first time that
Mr. Ramsey learned the seat belts were not visible was when
Mr. Ellis so advised him.
The equipment operator, Jim Whitleyu had some 40 years'
experience in operating dozers, and Mr. Ramsey himself has been
aware of the seat belt requirement since he has been in the sand
and gravel business.
The terrain where the Komatsu dozer was operated was on
about a 35 degree angle.

763

DISCUSSION
The operator again challenges the unwarrantable failure
designation.
However, I conclude the operator was highly negligent.
The company was aware seat belts were required. An MSHA
policy manual had been sent to all operators. Any cursory check
would have established that the seat belt on this Komatsu dozer
had been bolted under the seat.
High negligence establishes the designation of unwarrantable
failure.
Citation No. 3905716 should be affirmed.
In support of its position, Varra mentioned a prior citation
(No. 3905429) where the operator was cited under§ 104(a) for not
wearing a seat belt while operating the loader. The loader was
being operated on uneven ground.
(Ex. R-1).
This evidence does not damage Mr. Ellis's testimony, since
he explained the operator involved in the prior citation was not
aware its employee was not wearing the seat belt.
CIVIL PENALTIES
Section llO(i} of the Act mandates consideration of certain
criteria
assessing
1 penalties.
Varra is a small operator.

(Stipulation 9) •

Varra has a favorable history with only 19 violations
assessed in the two years ending November 4v 1991.
(Ex. G-1).
~ions

The operator was negligent as to all the seat belt violasince the violative conditions were open and obvious.
Concerning the operatorvs gravity~

Order No. 3905711 involved a terrain where the CAT 416 would
not likely turn over. As a result, the gravity should be considered as low.
In Order No. 3905715 the seat belt was not properly maintained. The inadequate belt establishes a situation of high
gravity.

764

In Order 3905716, the seat belt was not worn.
The terrain,
at 35 degrees, establishes a situation of high gravity.
Varra abated the violative conditions and the company is
entitled to statutory good faith.
The penalties set in the order of this case are appropriate.
For the foregoing reasons I enter the following:
ORDER
1.
Order No. 3905712 and the proposed penalty of $400 are
AFFIRMED.

Order No. 3905713 and the proposed penalty of $400 are
2.
AFFIRMED.
3.
Order No. 3905714 and the proposed penalty of $400 are
AFFIRMED.
4.
Order No. 3905711 is AFFIRMED and a penalty of $100 is
ASSESSEDo

5.
Order No. 3905715 is AFFIRMED and a penalty of $400 is
ASSESSED.
6.

Order No. 3905716 is AFFIRMED and a penalty of $400 is

.I&.SSESSED.

Law Judge
Distribution~

Kristi Floydu Esqo~ Office
the Solicitoru U.S. Department of
Laboru 1585 Federal Office Buildingu 1961 Stout Street, Denver,
Colorado 80294
~Certified Mail)

Mr. Thomas Ripp, 4315 Wadsworth Boulevard, Wheat Ridge,
(Certified Mail)

765

co 80033

:FEDERAL IUHB SAFETY ARD HEALTH UVI:D COI!DliSSJ:OB
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

APR 2 91993
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on Behalf of
GERALD SAPUNARICH,
complainant

LEHIGH PORTLAND CEMENT
COMPANY,
Respondent

.

DISCRIMINATION PROCEEDING
Docket No. YORK 93-65-DM
cementon Plant & Quarry

.
:-

.

DECISION APPROVING SETTLEMENT

Before:

Judge Fauver

This case involves an alleged discrimination against miner
Gerald Sapunarich in violation of § 105(c) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seg.
The parties propose to settle the case by assessment of a
civil penalty of $1,500.00 and by posting the settlement
agreement on the mine bulletin board for a minimum of 30 dayso
: find the settlement to be consistent with the purposes of
§

105(c) and § llO(i) of the Act.
ORDER

motion to approve settlement is GRANTEDa
2o
Respondent shall pay the approved civil penalty of
$lu500.00 within 30 days of this Decisionu and upon such payment
this proceeding is DISMISSEDa

0~7-~t/~

William Fauver
Administrative Law Judge

Distribution:
James A. Magenheimer, Esq., Office of the solicitor, u.s.
Department of Labor, 201 Varick Street, Room 707, New York,
NY 10014 (Certified Mail)

766

J. Michael Better, Esq., 315 A. Washington Avenue, Albany,
NY 12206 (Certified Mail)
Mr. Gerald M. Sapunarich, P.
(Certified Mail)

o. Box 113, cementon, NY

12415-0133

Patrick Lydon, Esq., Lehigh Portland Cement Company, 7660
Imperial way, Allentown, PA 18195 (Certified Mail)
Mr. Leslie w. Copple, Plant Manager, Lehigh Portland Cement
Company, P. o. Box 117, Cementon, NY 12415 (Certified Mail)
/fcca

767

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

APR 3 01993
SECRETARY OF LABOR,
JUNE SAFETY AND HEALTH
.ADMINISTRATION (MSHA),
Petitioner
. v.

CIVIL PENALTY PROCEEDING
Docket No. WEVA 92-922
A.C. No. 46-01453-04008
Humphrey No. 7 Mine

CONSOLIDATION COAL COMPANY,
Respondent
,J)ECISION
Appearances:

Charles M. Jackson, Esq., Office of the Solicitor,

u.s. Department of Labor, Arlington, Virginia, for
the Petitioner;
Daniel E. Rogers, Esq., Consol, Inc., Pittsburgh,
Pennsylvania, for Respondent.

Before~

Judge Maurer
Statement of the Case

In this case, the Secretary of Labor (Secretary) seeks a
l penalty of $1,000 for an alleged violation of section
03(f of the Federal Mine Safety and Health Act of 1977
1
UoSoCc § 813(f
which authorizes designated walkaround
Section 103(f) states~
to regulations issued by the Secretary, a
representative of the operator and a representative authorized by
his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the
provisions of subsection (a)r for the purpose of aiding such
inspection and to participate in pre- or post-inspection
conferences held at the mine. Where there is no authorized miner
representative, the Secretary or his authorized representative
shall consult with a reasonable number of miners concerning
matters of health and safety in such mine. Such representative
of miners who is also an employee of the operator shall suffer no
loss of pay during the period of his participation in the
inspection made under this subsection. To the extent that the
Secretary or authorized representative of the Secretary
determines that more than one representative from each party
would further aid the inspection, he can permit each party to
u9 Subject

768

representatives to accompany inspectors during their inspection
of the mine.
Inspector Thomas W. May issued to the respondent section
104(a) citation No. 3108715 which charges the following:
The operator did not give the representative,
authorized by the miners, the opportunity to accompany
an authorized representative of the Secretary. On day
shift and afternoon shift on 01-13-92, the miner
representative was not permitted to accompany me on my
physical inspection of the Northwest bleeder system.
On day shift John Higgins, General Superintendent,
would not permit Sam Woody, the miner representative
the opportunity to accompany me into the bleeder
system. On afternoon shift Ron Weaver, Superintendent,
would not permit Richard Matthews, the miner
representative the opportunity to accompany me into the
bleeder system. On afte:fiioon shift I was accompanied
by Rick Pauley, representative of the operator.
Pursuant to notice, a hearing was held on the alleged
violation in Morgantown, West Virginia, on December 17, 1992.
Both parties have filed posthearing letter-briefs, which I have
duly considered in making the following decision.
Stipulations
(Tr

o

The parties stipulated to the following, which I accepted
7-9) ~
Consolidation Coal Company is the owner and
operator of the coal mine at which the citation in this
proceeding was issued"
2o
Operations of Consolidation Coal are subject
to the jurisdiction of the Federal Mine Safety and
Health Act of 1977"

3" This case is under the jurisdiction of the
Federal Mine Safety and Health Review Commission and

have an equal number of such additional representatives.
However, only one such representative of miners who is an
employee of the operator shall be entitled to suffer no loss of
pay during the period of such participation under the provisions
of this subsection. Compliance with this subsection shall not be
a jurisdictional prerequisite to the enforcement of any provision
of this Act."

769

its designated Administrative Law Judges pursuant to
sections 105 and 113 of the Mine Act.
4. The individual whose signature appears in
block 22 of the citation at issue in this case was
acting in his official capacity and as an authorized
representative of the Secretary of Labor when the
citation was issued.
5. True copies of the citation at issue in this
case were served on the Respondent or its agent as
required by the Mine Act.
6. The total proposed penalty for the citation
contested by Consolidation Coal Company in this case
will not affect the Respondent's ability to continue in
business.
7. For the purposes of assessing any penalty that
may be assessed in this case, Consolidation Coal
Company is a large coal mine operator with an average
history of violations.
8. The citation contained in Exhibit A attached
to the Secretary's petition is an authentic copy of the
citation at issue in this case with all appropriate
modifications for abatements.
Discussion
on the morning of January 13, 1992v Inspector May informed
Mr. Robert smith, who works in Consolidation°s Safety Department
and Mrc Sam Woodyu ·the minerus representative, that he was going
Y::o go bacJc
the northwest bleeder system to inspect the Brock
Four Bleeder Fan. He also informed them both at this time that
they had the right to travel with him or not, as they chose.
This area had not been inspected for 8 months because the
company had requested and been given a waiver to examine that
area with the proviso that they take their air and gas readings
on the surface. Prior to the issuance of this waiver 7 the area
had been the subject of a weekly examination.
Mr. Woody was willing to go, but Mr. Higgins, the general
superintendentv told Inspector May that the company
representative and the minerus representative, Sam Woody would
not be traveling with him to the fan.
He told the inspector that
he could go anywhere in the mine he wanted to, but that he
(Higgins) was not going to permit company employees to go back
there. Higgins felt that the area was too dangerous; it had not
been inspected in 8 months and he was not going to allow company

770

personnel to go into that area. He informed the inspector that
his men would stop at the six northwest cut-through.
Inspector May testified that he then told Mr. Higgins that
under the Mine Act, the miner's representative had the right to
travel with him and assist him in his inspection. Higgins again
stated that the miner's representative, in this situation, Sam
Woody, was a company employee and his responsibility if he were
to get injured. He reiterated that he was not going to permit
it.
Subsequently, Inspector May, accompanied by Smith and Woody
arrived at the man door at the six northwest cut-through.
Inspector May proceeded into the bleeder system alone. Smith and
Woody remained on the outby side of the man door at the cutthrough.
Inspector May remained in the bleeder system for
approximately an hour. As a result of his inspection, he issued
a section 107(a) order because of methane concentrations. That
order is not the subject of this proceeding, but I understand it
was later vacated as part ot-a settlement negotiation.
There was a second inspection of the area that day by
Inspector Mayp to terminate the order. He arrived at the mine
about 8:30 p.m. At this time John Webber was the Safety
Department representative and Richard Matthews the minervs
representative. On this occasion, Mr. Ron Weaver, the
superintendent of the Bowers Portal stopped him and informed him
that Webber and Matthews would not be going into that area with
him, but that a shif~ foreman, Rick Pauley would travel with him
back to the bleeder. Inspector May advised Weaver of the right
of the minervs representative under the Act to travel with the
inspector and assist
the inspection. Weaver repeated that
Matthews "tt>Jould not be
with himp
he didn 1 t. The
inspectorr accompanied
Foreman
carried out
·cermina"c
inspectionu leaving Webber and Matthews behind at the
man door at the six northwest cut~through.
In
s caser respondent maintains that it was their
corporate dutv ·to
··
t.hei:c emolovees from potential harm and
·chat.
have a reasona.bJ..e bas · for considering going back
into 'chat bleeder system ·to be ·too dangerous.
Upon
lection,
am not going
get into the issue of
whether or not it "tvas too dangerous or dangerous at all for that
matter
inspect the northwest bleeder system as Inspector May
insisted on doing on the day in question. The Commission has
emphasized repeatedly that the walkaround rights granted miners 1
representatives by section 103(f) of the Mine Act are a vitally
important statutory right granted to miners and their
representatives by the Act. And I can find no authority, nor has
respondent been able to cite me any, for the proposition that the
opportunity to engage in walkaround can be restricted by the

771

operator based on potential danger to the employee/miner's
representative. Accordingly, I am going to affirm the citation
at bar.
Civil Penalty Assessment
Taking into consideration all of the civil penalty
assessment criteria found in section 110(i) of the Act, I
conclude and find that the petitioner's proposed civil penalty
assessment of $1000 for the violation in question is reasonable,
and it will be so ordered.
ORDER
Based on the above findings of fact and conclusions of law,
IT IS ORDERED:
1.

Citation No. 3108715 IS AFFIRMED.

2. Respondent, Consolidation Coal Company shall within
30 days of the date of this decision pay the sum of $1,000 as a
civil penalty for the violation found herei~

Law Judge
Distribution:
Charles M. Jackson, Esq., Office of the Solicitor, U.S.
Department of Laborv 4015 Wilson Boulevard, Room 516; Arlington,
VA 22203 {Certified Mail)
Daniel Eo Rogers, Esq., Consol 1 Inc. 1 Consol Plaza,
1800 Washington Road, Pittsburgh, PA 15241 (Certified Mail)
fb

wU.S COVERNMENTPRlNTINCOfFJCE, 1993·542·145' 9337 9

772