Jut.Y 1984
Commission Decisions
7-02-84
7-'05-84
7-11-84
7-12-84
7-17-84
7-18-84

WEST 82-146-RM
WEVA 81-36-R
PENN 82-336
LAKE 82-89
WEST 80-158-M
WEVA 83-65-R

Pg. 1566
Pg. 1571
Pg. 1573
Pg. 1577
Pg. 1583
Pg. 1596

Carbon County Coal Company
WEST 83-106
Grandview Dock Corporation
LAKE 84-24
U.S. Steel Mining Co., Inc.
PENN 83-96
Earth Coal Company
LAKE 84-14
H J and H Coal Company, Inc.
VA
83-56
UMWA for James Rowe, ~ al. v.
KENT 82-103-D
-Peabody Coal Company
James L. Dowdell v. Consolidation Coal LAKE 83-96-D
U.S. Steel Mining Company, Inc.
PENN 83-121
Westmoreland Coal Company
WEVA 83-260-R
MSHA for Paul Sedgmer, et al. v.
LAKE 82-105-D
Consolidation Coal Company
Louisiana Industries, Inc.
CENT 84-43-M
Cobra Resources, Inc.
KENT 83-54
Buckeye Coal Mining Company
LAKE 84-2
Emiliano Rosa Cruz v. Puerto Rican
SE 83-62-DM
Cement Company, Inc.
Industrial Mining Company
LAKE 84-69
Lee Lime' Corporation
YORK 84-9-M
Local 2274, UMWA v. Clinchfield Coal
VA
83-55-C
Freeman United Coal Mining Company
LAKE 84-38
Vesta Mining Company
PENN 83-212-R
Pyro Mining Company
KENT 84-151
MSHA for Z.B. Houser v. Northwestern
WEST 83-101-D
Resources Company
Jim Walters Resources, Inc.
SE
84-11
Glinn Gates & Peter Johnstone
WEST 83-31-M
Cicconi Coal Company
PENN 83-158

Pg. 1607
Pg. 1611
Pg. 1617
Pg. 1627
Pg. 1629
Pg. 1634

FMC Corporation
Badger Coal Company
U.S. Steel Mining Co., Inc.
Freeman United Coal Mining Co.
Roy Glenn (Climax Molybdenum Co.)
Kitt Energy Corporation

Administrative Law Judge Decisions
7-02-84
7-03-84
7-03-84
7-05-84
7-06-84
7-11-84
7-11-84
7-11-84
7-11-84
7-16-84
7-17-84
7-17-84
7-18-84
7-19-84
7-20-84
7-20-84
7-23-84
7-24-84
7-24-84
7-26-84
7-26-84
7-30-84
7-30-84
7-31-84

Pg. 1651
Pg. 1664
Pg. 1717
Pg. 1740
Pg. 1747
Pg. 1749
Pg. 1751
Pg. 1753
Pg. 1778
Pg. 1780
Pg. 1782
Pg. 1785
Pg. 1787
Pg. 1789
Pg. 1798
Pg. 1815
Pg. 1826
Pg. 1829

JULY 1984
The following case was directed for review during the month of July:
Secretary of Labor, MSHA v. Magma Copper Company, Docket No. WEST 83-17-M.
(Judge Vail, June 14, 1984)
Review was denied in the following case during the month of July:
Lonnie Jones v. D & R Contractors, Docket No. KENT 83-257-D(A). (Judge Melick,
Interlocutory Review of May 15, 1984 order.)

COMMISSION DECISIONS

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

July 2, 1984
SECRETARY OF LABOR,.
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEST 82-146-RM
WEST 82-207-M

FMC CORPORATION
DECISION
This consolidated proceeding involves the interpretation and
application of 30 C.F.R. § 57.6-5, a mandatory safety standard dealing
with storage of blasting agents. 1/ A Commission administrative law
judge held that the operator, FMC-Corporation ("FMC"), violated the
standard and assessed a civil penalty. 5 FMSHRC 627 (April 1983)(ALJ).
We granted FMC's petition for discretionary review. We affirm.
The relevant facts were stipulated. On March 10, 1982, during an
inspection of FMC's trona mine located in Green River, Wyoming, an
inspector of the Department of Labor's Mine Safety and Health Administration ("MSHA") issued FMC a citation alleging a violation of section
57.6-5. The citation stated, in relevant part, that ammonium nitrate
fuel oil ("ANFO"), a blasting agent, was stored impermissibily close
to combustible hydraulic oil. ]:_/
1/

30 C.F.R. § 57.6-5 provides:
Areas surrounding magazines and facilities for the
storage of blasting agents shall be kept clear of rubbish, brush,
dry grass, or trees (other than live trees 10 or more feet tall),
for a distance not less than 25 feet in all directions, and other
unnecessary combustible materials for a distance of not less than
50 feet.
Mandato~y.

2/
ANFO is a blasting agent as defined by 30 C.F.R. § 57.2, which
incorporates by reference the Department of Transportation's classification scheme for blasting agents set forth at 49 C.F.R. § 173.114a.
Ammonium nitrate is an essential ingredient in nearly all commercial
explosives, including dynamite and water gels. Its predominant use is
in the form of AN prill, a small porous pellet mixed with fuel oil for
use as a blasting agent. Du Pont Co., Blasters' Handbook 12-15, 55-66
(16th ed. 1977). This ammonium nitrate fuel oil mixture is referred to
as ANFO. The most widely used ANFO product is an oxygen-balanced, freeflowing mixture of about 94 percent ammonium nitrate prills and six
percent No. 2 diesel fuel oil. Id. at 55.

156t3

•

At approximately 9:40 a.m. the inspector observed 9.5 pallets of
ANFO within the supply yard located near the No. 3 shaft. The ANFO,
which had an approximate total weight of 10 tons, was located within
eight feet of a portable 500-gallon oil dispensing tank that was filled
with combustible hydraulic oil. ]/ The inspector further observed that
a small quantity of the hydraulic oil was located on the ground under
the tank. Vehicular traffic in the area presented a possible ignition
source.
Upon making the foregoing observation the inspector informed FMC
personnel of the condition. Thereafter the inspector issued the subject
citation charging a violation of 30 C.F.R. § 57.6-5 because hydraulic
oil was located within eight feet of ANFO; because the operator failed
to place a warning sign in the area; and because the supply yard was not
guarded. The operator removed the hydraulic oil from the supply yard
within minutes and indicated that the oil had been mistakenly located
there •. The operator further contended that the supply yard had been
routinely used over the years for the placement of materials to be taken
to the underground work areas and that ordinarily the materials would be
located therein for approximately 5 hours. However on this day, because
of unspecified problems, the process of removing the materials underground had been delayed. In fact the ANFO, which had been delivered
into the supply yard at approximately 8:00 a.m., was not completely
removed from the supply yard and taken into the mine until sometime
between 4:00 p.m. and 5:00 p.m.
The sole issue litigated by the parties before the Connnission's
administrative law judge was "whether the agreed upon facts show that
9.5 pallets of ANFO, a blasting agent, w[ere] in 'storage' as that term
is used in the mandatory safety standard set forth in 30 C.F.R. § 57.6-5."
5 FMSHRC at 627. The judge found that the supply yard near the No. 3
shaft was a "facility" used as a holding area for materials, including
blasting agents, intended for use in the underground parts of the mine.
5 FMSHRC at 629. The judge stated, "All storage connotes a temporary
placement awaiting further movement or transport to the place of.
ultimate rest or use." Id. The judge further found that for an hour
and a half, 9.5 pallets of ANFO had been stored in impermissible proximity
to combustible hydraulic oil. Id. Based on these findings, the judge
concluded that the operator had-Violated section 57.6-5, and assessed a
civil penalty of $119, an amount stipulated to by the parties. The
judge also held that the other conditions described in the citation, the
absence of a guard and a danger sign, were not covered by the cited
standard. The Secretary of Labor has not appealed this latter aspect
of the judge's decision.

On review, FMC argues that "storage," for the purpose of the safety
standards governing explosives, means "the setting aside of blasting
agents and explosives in a building or structure until needed." FMC
contends that because the supply yard in question was neither a structure

11

"Combustible" is defined in 30 C.F.R.
ignited and consumed by fire."

§

57.2 as "capable of being

nor a building it was not a "facilit(y] for the storage qf blasting
agents" within the meaning of section 57.6-5. FMC argues also ~hat the
ANFO in question was in the process of delivery to the mine when the
citation was issued and, accordingly, was not subject to the s~andards
governing storage of explosives and blasting agents. Rather, FMC
asserts that the delivery process is governed by the standards dealing
with the transportation of explosives and blasting agents. 30 C.F.R.
§§ 57.6-40 through 57.6-77. On the facts of this case, we do not agree.
There is no dispute that some 10 tons of ANFO, a blasting agent,
were placed.for a period of time.within eight feet of a tank filled with
500 gallons of hydraulic oil, a combustible material. Therefore, the
issues to be decided on review are whether the No. 3 shaft supply yard
was a "facilit[y] for the storage of blasting agents" within the meaning
of section 57.6-5, and whether FMC's temporary placement of the ANFO in
the supply yard constituted "storage" within the meaning of the standard.
Section 57.6-5 applies to the storage of blasting agents in "magazines"
and "facilities for the storage of blasting agents." The term "magazine"
is defined in 30 C.F.R. § 57.2 as "a facility for the storage of explosives,
blasting agents, or detonators." 30 C.F.R. § 57.6-20 provides detailed
criteria for the construction of magazines. However, there is no
comparable definition of the term "facilities." While it is clear that
the word facility may connote an enclosed structure, its meaning in
ordinary usage is broader. Facility is defined as "something ••• that
is built, constructed, installed, or established to perform some particular
function or to serve or facilitate some particular end." Webster's Third
New International Dictionary (Unabridged) 812 (1981). In other words,
the primary significance of the term is functional rather than structural.
Therefore, while a magazine is a structure that must meet the specifications
set forth in section 57.6-20, a facility, considered from the standpoint
of ordinary u~age, can be.either an enclosed structure like a magazine,
or simply an area designated for storage.
The No. 3 shaft supply yard was a demarcated area regularly used
for the holding of supplies, including blasting agents to be transported
underground. Thus, we conclude that the supply yard was a storage
facility. When blasting agents were stored therein, such storage was.
required to be in conformity with section 57.6-5. !!.I

!!.I

In relevant part, the citation in this case dealt only with the
impermissible presence of a combustible material. This case does not
require us to, and we do not, reach the question of whether, under the
cited standard or other standards, "facilities for the storage of
blasting agents" must also be enclosed. We conclude merely that the
supply yard as used at the FMC mine was a storage facility for blasting
agents, not that it was a storage facility conforming to all possibly
applicable requirements.

1568

The next question is whether FMC's temporary placement of the ANFO
in the supply yard facility constituted storage. In ordinary usage, the
term storage, "the act of storing or the state of being stored," covers
a wide variety of meanings, including, to accumulate, to supply, to
amass, or to keep for future use. Webster's, at 2252. Thus, the term
is sufficiently broad to include short-term, long-term and semi-permanent
storage, and as used in section 57.6-5, encompasses both short-term and
long-term storage.
Applying the foregoing construction of the standard to these facts,
we conclude that the ANFO was stored in the supply yard within the
meaning of the standard. Although FMC argues that the ANFO was in
transit, the 9.5 pallets of ANFO observed by the inspector had been in
the supply yard for over an hour and some of those pallets were not
moved below for more than six hours. This situation was not placement
for a de minimis period of time during an essentially uninterrupted
transit process. The standard was developed to prevent the very
situation that existed in this case~-the storage of blasting agents in
close proximity to a c~mbustible material. The judge's applicatio,n of
the standard in this case properly effectuates that purpose. Because
the ANFO was stored in impermissible proximity to the hydraulic oil, a
violation of section 57.6-5 occurred.
Accordingly, on the bases discussed above, we affirm the judge's
decision. ~_/

1/

Connnissioner Nelson did not participate in the consideration or
disposition of this case.

1569

Distribution
John A. Snow, Esq.
James A. Holtkamp, Esq.
Van Cott, Bagley, Cornwall & McCarthy
50 South.Main Streett Suite 1600
P.O. Box 3400
Salt Lake City, Utah 84110
Linda Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Joseph Kennedy
Federal Mine Safety & Health. Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1570

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

J\lly s, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

Docket Nos. WEVA 81-36-R
WEVA 81-37-R
WEVA 81-277
WEVA 81-285

v.
BADGER COAL COMPANY
ORDER

Badger Coal Company's petition for discretionary review of the
administrative law judge's final decision in this matter was granted
by this Commission on May 21, 1984. Subsequently, by motion dated
June 22, 1984, counsel for the operator requested that its petition
for review be dismissed by the Commission. The Secretary of Labor
has responded stating that he has no objection to Badger's motion.
Accordingly, our order granting review in this case is vacated and
the operator's petition for discretionary review is dismissed. By
operation of law, the administrative law judge's April 11, 1984, decision
(6 FMSHRC 874) constitutes the Commission's final decision in this matter.
30 u.s.c. § 823(d)(l).

1571

Distribution
David J. Romano, Esq.
Young, Morgan, Cann & Romano
Suite One, Schroath Building
Clarksburg, West Virginia 26301
Michael McCord, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Administrative Law Judge Richard Steffey
Federal Mine Safety & Health Review C6mmission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1512

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

July 11, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION . (MSHA)

Docket No. PENN 82-336

v.
U.S. STEEL MINING CO., INC.
DECISION
In this case arising under the Federal Mine Safety and.Health Act of
1977, 30 u.s.c. § 801~~· (1982), United States Steel Mining ("USSM")
has challenged a finding by the Commission's administrative law judge that
a violation was "significant and substantial" as that term is used in
section 104(d)(l) of the Act. 30 u.s.c. § 814(d)(l).
USSM's Maple Creek No. l coal mine was inspected in May 1982 by an
inspector from the Department of Labor's Mine Safety and Health
Administration ("MSHA"). During the inspection a six-inch gash was
discovered in the outer jacket of insulation of a trailing cable leading
to a continuous mining machine. Approximately two inches of the gash
had been covered by electrical tape, leaving exposed about four inches
of ground wire. Three live power wires carrying 480 volts of current
also were contained within the trailing cable but each of them was
covered by a separate layer of insulation; there was no visible damage
to that insulation at the time of the inspection. The inspector issued
a citation alleging a violation of 30 C.F.R. § 75.517, and he indicated
that the violation was "significant and substantial." 1/
USSM contested the designation of the violation as "significant and
substantial" and the matter came before an administrative law judge of
this independent Commission. USSM did not contest the underlying
violation. At the hearing, witnesses for both MSHA .and USSM agreed that
because the power wires remained individually insulated at the time of
inspection there was no immediate danger of electrical shock even if a
miner should inadvertently grab the cable. However, the witnesses

1/

30 C.F.R. § 75.517 in part provides:
Power wires and cables ••• shall be insulated
adequately and fully protected.

157~

also agreed that a tear in the outer jacket weakened the overall system of
protective insulation and increased the risk of danger to the internal
layer of insulation on the power wires. Tr. 19, 27-29. ];./
The administrative law judge found that the violations were of a
"significant and substantial" ("S&S") nature because a trailing cable is
subject to "extraordinary abuse" in the harsh environment of a coal mine.
5 FMSHRC at 1569. For this reason,"both the outer jacket and the conductor
wire insulation are important." Id. 3/ The judge stated further that a
determination of "significant andsubstantial" must be made at the time the
citation is issued (without any assumptions as to abatement), but in the
context of "continued normal mining operations." Id.
USSM challenges those findings on review. It argues that the gash in.
the trailing cable insulation observed by the inspector would not have
resulted in injury absent the occurrence of some future additional aggravating condition. Therefore, USSM submits that there was no likelihood
that serious injury would have resulted from the cable condition, as it
existed at the time of inspection and citation. In essence, USSM argues
that the scope of consideration, for determining whether a significant
and substantial violation exists, should be limited solely to consideration
of the condition as it exists at the precise moment of inspection.
We reject this narrow interpretation of the statutory language.
Section 104(d)(l) specifies that a violation is to be designated S&S if
i t "significantly and substantially contribute[s]" to a mine hazard. 4/
This contribution is measured according to whether there is a "reasonable
likelihood that the hazard contributed to will result in an injury ••• of
a reasonably serious nature." Cement Division, National Gypsum Co.,
3 FMSHRC 822, 825 (April 1981). Such a measurement cannot ignore the
relevant dynamics of the mining environment or processes; indeed this
cable was in normal use at the time it was observed by the inspector.
Under these circumstances, it was not error for the judge to evaluate
the cited violation in terms of "continued normal mining operations."
2/
USSM provided testimony as to the presence of a ground fault system
in the trailing cable used at this mine. The ground fault system is
designed to deenergize the trailing cable if a power wire comes in contact
with the ground wire. The administrative law judge found that despite this
system, electrical shock of some degree could occur.· United States Steel
Mining Co., Inc., 5 FMSHRC 1567, 1569 (September 1983)(ALJ).
3/
The judge also discussed the effect of water, if present, upon the
electrical hazard posed by the violation. 5 FMSHRC at 1569. We regard
this discussion as an example of how conditions could develop in the
mining environment which could cause an improperly protected cable to
become more hazardous.
4/
The Mine Act states that violations that are "of such nature as could
significantly and substantially contribute to the cause and effect of a
coal or other mine safety and health hazard" may serve as the basis for
certain enforcement mechanisms. 30 u.s.c. §§ 814(d)(l) and (e)(emphasis
added).

1574

The administrative law judge considered those mining conditions to
which the damaged cable predictably would be exposed. He found that both
the outer and inner layers of insulation provided important protection
against electrical shock. These findings are fully supported by the testimony of the MSHA inspector and the operator's witness, each of whom stated
that the mining environment is harsh and that damage to the outer layer of
insulation weakened the protection afforded by the inner layer.
Accordingly, we conclude that the violation in this case properly was
designated "significant and substantial" in that there was a reasonable
likelihood that the condition of the trailing cable could contribute,
significantly and substantially, to the cause and effect of a safety
hazard. The decision of the administrative law judge is affirmed.

1575

Commissioner Lawson
concurring:
. .
..
.

~

.

:

.

'

On the basis of the criteria set forth in my separate opinion in
Cement Division, National Gypsum Co.,. 3 FMSHRC 822 (April 1981), I concur
in finding the violation in this case to be significant and substantial
within the meaning of section 104(d)(l) of the Mine Act, 30 U.S.C.
§ 814 (d) (1) •
I join my colleagues in rejecting USSM's invitation to consider
"spatial-temporal variables" in determining whether the violation was
significant and substantial. At the time of citation the continuous
mining machine was in operation and the damaged trailing cable was in
use. It is reasonable to conclude that absent intervention by a federal
enforcement official operations would have continued and miners would
have remained exposed to the electrical hazard the cited standard was
designed to protect against. If, as USSM suggests, all factors necessary
for the occurrence of an occupational injury must be present before a
significant and substantial finding can be made, the violation would
constitute an imminent danger subject to a section 107(a) withdrawal
order. As the Secretary maintains, this interpretation would be inconsistent with the enforcement scheme of the Mine Act and its preventive
goals. In order to be designated significant and substantial, under
section 104(d)(l) of the Mine Act, a violation must "contribute to the
cause and ~ffect of a ••• ¢ne safety or health hazard," it need not
constitute one.
Accordingly, the administrative law judge properly considered whether
the violation was significant and substantial in light of the extraordinary
abuse to which a continuous miner trailing cable is subjected during continued normal mining operations.

A. E. Lawson, Commissioner

1576

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

July 12, 1984
SECRETARY OF LABOR,•
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. LAKE 82-89

FREEMAN UNITED COAL MINING
COMPANY
DECISION
This civil penalty proceeding involves the interpretation and
application of the requirement in 30 C.F.R. § 50.20(a) that an operator
report to the Department of Labor's Mine Safety and Health Administration
("MSHA") each "occupational injury ••• at the mine." l/ The Connnissi<>n's
administrative law judge concluded that Freeman United Coal Mining
Company ("Freeman") violated the regulation, and assessed a civil
penalty. 5 FMSHRC 505 (March 1983) (ALJ). For the reasons that follow,
we affirm the judge's decision.
1/ 30 C.F.R.

§

50.20(a) provides in part:

Preparation and submission of MSHA Report Form 7000-1--Mine
Accident, Injury, and Illness Report.
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. 20-7. • •.• 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.
30 C.F.R.

§

50.2(e) defines an "occupational injury" as follows:

"Occupational injury" means any injury 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 afte~ an injury, temporary assignment to other
duties, or transfer to another job.

.,

~

1 t) i.f( '":'

The facts are undisputed and were stipulated below. On February 18,
1982, at about 11:00 p.m., approximately one hour before the beginning
of his shift, Fred Albers, a plant cleaner who had worked for Freeman
for about 12 years, experienced back pain while putting on his work
boots in the wash house at Freeman's Orient No. 6 Mine. He was taken by
ambulance to a hospital emergency room and subsequently.admitted as an
inpatient. Albers, who had a history of back trouble, was diagnosed as
having acute lumbosacral (lower back) strain, and was treated with
physiotherapy, a m~scle relaxant, and a pain reliever. He was discharged from the hospital on February 24, 1982. Albers returned to work
on March 10, 1982, after missing 13_work days. Freeman did not report
Albers' injury to MSHA.
On March 25, 1982, an MSHA inspector cited Freeman for a violation
of 30 C.F.R. § 50.20(a) because it had not completed and mailed Form
7000-1 to report Albers' injury within ten working days after the
occurrence of the injury. Freeman abated the violation the same day by
completing and mailing the form to MSHA.

The principal issue considered by the Commission administrative law
judge was whether Albers' injury was an "occupational injury" within the
meaning of the cited regulation and as that term is defined in section
50.2(e). The judge found that the facts established an occupational
injury because (1) there was an injury to a miner; (2) it occurred at a
mine; and (3) medical treatment was required and it caused disability.
He stated that "the facts fit the definition and the definition is
controlling." 5 FMSHRC at 508.
In urging reversal, Freeman argues that the section 50.2(e) definition
of occupational injury contemplates that there must be a causal nexus
between the miner's work and the injury sustained. Freeman contends
that Albers' injury was not work-related and, consequently, Freeman was
not required to report the injury to MSHA pursuant to section 50.20(a).
Freeman argues in the alternative that the regulation is invalid to the
extent that it requires reporting injuries lacking a causal nexus with
the miner's work. We reject both arguments.
I.

In interpreting the term "occupational injury," as defined in
section 50.2(e), we look first to the plain language of the regulation.
Absent a clearly expressed legislative or regulatory intent to the
contrary, that language ordinarily is conclusive. As noted above,
section 50.2(e) defines an occupational injury as "any injury 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." The term "injury" is not further
defined. The ordinary meaning of injury is: "an act that damages, harms,

or hurts"; or "hurt, damage, or loss sustained." Webster's Third
New International Dictionary (Unabridged) 1164 (1977). The remaind~r of
the definition in section 50.2(e) refers only to the location where the
injury occurred ("at a mine"), and to the result of an injury ("medical
treatment," "death," etc.). Thus, 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. These regulations do not
require a showing of a causal nexus.
Nor does the regulatory history show any intent to require such a
specific causal connection. In fact, just the opposite is true. 30
C.F.R. Part 50, in which sections 50.2(e) and 50.20(a) are contained,
was originally promulgated by the Department of the Interior's Mining
Enforcement and Safety Administration ("MESA," the predecessor agency to
MSHA) under the authority of the Federal Metal and Nonmetallic Mine
Safety Act, 30 U.S.C. § 721 et~· (1966)(repealed 1977)("Metal Act"),
and the Federal Coal Mine Health and Safety Act, 30 U.S.C. § 801 ~ seq.
(1976) (amended 1977) ("Coal Act"). ]:./ Part 50 revised and consolidated
previously separate reporting requirements under the Part 58 standards
for metal and nonmetal mines and the Part 80 standards for coal mines.
42 Fed. Reg. 55568 (October 17, 1977). When promulgated by MESA,
section 50.2(e) deleted the Parts 58 and 80 requirement that an occupational injury arise out of and/or in the course of work and added the
present requirement that, to be reportable, an occupational injury need
only occur at a mine. See 42 Fed. Reg. 65534. MESA's deletion of a
more specific work-related criterion militates against our according
such a construction to these regulations. See,~., U.S. v. Guthrie,
387 F.2d 569, 571 (4th Cir. 1967). We conclude that the above-noted
regulatory history and the plain language of the section 50.2(e) definition
of occupational injury control in construing the related reporting
requirement of section 50.20(a). ]_/
•
II.

It is well settled that when considering the validity of an
administrative regulation, the proper standard of review is whethe~ th~
regulation is consistent with, and reasonably related to, the statutory
2/
After the Mine Act took effect on March 9, 1978, the Secretary of
Labor made only minor nomenclature changes in Part 50. 42 Fed. Reg.
65535 (December 30, 1977); 43 Fed. Reg. 12318 (March 24, 1978).
3/
In oral argument before the Commission, both Freeman and the
American Mining Congress, as amicus curiae, argued that the Part 50
reporting requirements apply only to preventable work-related injuries.
In Freeman's view, it could not have prevented the injury involved in
this case. However, the Secretary asserts that it is the compilation of
data regarding all injuries occurring at mines that provides MSHA with
a basis for determining which injuries may be prevented.

provisions urider which it was promulgated and is not in conflict with
any other statutory provisions. See Sewell Coal Co., 3 FMSHRC 1402,
1405-08 (June 1981). !±_/ SectiOn lll(b) of the Coal Act and sections 4
and 13 of ·the Metal Act broadly empowered the Secretary of the Interior
to require operators to maintain and submit accident, injury, and illness
data, without imposing limitations on the types of data. Similarly, the
legislative histories of these Acts discussed the reporting requirement
in extremely broad terms. See S. Rep. No. 411, 91st Cong~, 1st Sess. 92
(1959), reprinted in Senate Subcommittee on Labor and Public Welfare,
94th Cong., 1st Sess., Legislative History of the Federal Coal Mine
Health and Safety Act of 1969 at 218 (1975), and Legislative History
of the Federal Metal and Nonmetallic Mine Safety Act, 1966 U.S. Code
Cong. and Ad. News 2856-57. We conclude that section 50.20(a) is
consistent with and reasonably related to the st.atutory provisions under
which it was promulgated. i/
III.
The Secretary asserts that Freeman is precluded under the Mine Act
from challenging the regulation's validity because the operator did not
raise the question below. 30 U.S.C. § 823(d)(2)(A)(iii). We disagree.
Before the administrative law judge, Freeman asserted that the Mine Act
"should not be applied in an unreasonable, illogical manner as attempted
here." Freeman argued further that an interpretation of the regulation
which does not require that an occupational injury be work-related
"stretches the application of the Act and is not in compliance with the
intention and purpose of the Act." We find that these broad statements
"afforded the administrative law judge an opportunity to pass" upon the
question, as required by 30 U.S.C. § 823(d)(2)(A)(iii).

!±./

This is essentially the same standard of review applied by courts
of appeals for judging the validity of rules promulgated pursuant to
informal notice and comment rulemaking. (Section 50.20(a) was the
product of informal rulemaking.) See,~., Nat'l Indus. Sand Ass'n. v.
Marshall, 601 F.2d 689, 696-700 (3d Cir. 1979), citing Citizens to
Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); and
American Mining Congress v. Marshall, 671 F.2d 1251, 1254-55 (10th Cir.
1982).
.
ii Freeman's argument that section 50.20(a) conflicts with section
103(e) of the Mine Act, 30 U.S.C. § 813(e), which requires the Secretary
to minimize burdensome reporting requirements, is unpersuasive because
there is no evidence as to this alleged burden. Nor is there support
for Freeman's argument that the requirement as interpreted needlessly
duplicates the state workers' compensation reports that the operator is
required to file. Workers' compensation statutes differ both in purpose
and effect from the Mine Act and, in any event, in promulgating section
50.2(e), MESA expressly rejected reliance for reporting purposes on
diverse state workers' compensation criteria. See 42 Fed. Reg. 65534.
For these same reasons we would not find state workers' compensation
statutes analogous.

The Secretary also asserts that we lack authority to review the
validity of the cited regulation. Previously, we have rejected the
same argument by the Secretary in the context of the validity of a
mandatory safety standard promulgated under section lOl(a) of the Coal
Act. See Sewell Coal Co., 3 FMSHRC at 1405. .Although the present case
involves a reporting regulation promulgated under sections 508 and
lll(b) of .the Coal Act and sections 4 and 13 of the Metal Act, our
reasoning in Sewell applies. We conclude that a challenge to the validity
of a regulation promulgated under the Coal and Metal Acts can be raised
and decided in adjudication before this Commission.
Accordingly, applying the regulation thus construed to the undisputed facts of this case, we affirm the judge's findings that a
reportable injury occurred because there was an injury to a miner, which
occurred at a mine, and which required medical treatment. We note that
this injury also resulted in an "inability to perform all job duties •••• "
Therefore, we affirm the judge's conclusion that Freeman violated
§ 50.20(a) by not reporting this occupational injury to MSHA.

1581

Distribution
Debra L. Feuer, Esq.
Off ice of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Harry M. Coven, Esq.
Gould & Ratner
300 West Washington Street
Suite 1500
Chicago, Illinois 60606
Michael F. Duffy, Esq.
Henry Chajet, Esq.
American Mining Congress
1920 N Street, N.W.
Suite 300
Washington, D.C. 20036
Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

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

July 17, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION. (MSHA)
Docket No. WEST 80-158-M

v.
ROY GLENN, Employed by, and
Agent of CLIMAX MOLYBDENUM
COMPANY
DECISION
This is a civil penalty case brought under section llO(c) of the Federal
Mine Safety and Health Act of 1977, 30 u.s.c. § 820(c). 1/ Roy Glenn, a
shift boss employed by Climax Molybdenum Company, seeks review of the administrative law judge's finding that he violated section llO(c) of the Mine Act
by knowingly authorizing a violation of 30 C.F.R. § 57.15-5. 4 FMSHRC 13
(January 1982)(ALJ).
We granted Glenn's petition for discretionary review and heard oral
argument. For the reasons that follow, we reverse the decision of the judge.
At the time of the events at issue, Glenn worked as a shift boss
supervising a crew of miners in the Climax mill and crusher where
molybdenum ore is processed. Glenn's crew consisted of 10 miners including Chris Martinez, a first class welder, Ron Robinson, a first class
mechanic and John Payne, a mechanic welder. On January 5, 1979, Glenn's

l/

Section llO(c) provides:
Whenever a corporate operator violates a ~andatory
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
(a) or section. lOS(c), any director, offker, or
agent of such corporation who knowingly authorized,
orde~ed, 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).

158'3

c~ew was engaged in welding a new valve onto an oxygen line.
Glenn
instructed Payne to open and bleed all the existing valves on the line.
Martinez and Robinson were to weld the new valve onto the line. To do
this it was necessary to work from an adjacent girder which was approximately 20-21 inches wide, 511 inches thick and 30 feet long with a vertical
upright in the middle. After assigning the tasks to the crew, Glenn went
to the back of the crusher and began checking each of the existing oxygen
valves to be certain they had been opened. After checking the valves,
Glenn walked to a place where he could observe the girder.

At. the time of assignment, there were two ways for the miners to reach
the workplace on the girder. It could be reached by using a 20 foot extension
ladder which was approximately 40-50 feet away. (Robinson had used the ladder
in the past to reach the end of the girder where the welding operation was to
be performed.) Another means of reaching the girder was to ascend a staircase,
climb onto the girder and walk across it. Glenn had told his crew t9 take
their safety belts and lines with them, but he gave them no precise instructions regarding how to reach the workplace on the girder. The men·were
experienced and had worked on girders many times. On this occasion, Martinez
and Robinson walked across the girder, with the safety belts and lines unsecured,
rather than using the ladder. Upon reaching their workplace on the girder, they
secured their safety belts and lines. Glenn did not return from checking the
valves and observe them until.after they had reached the workplace and tied-off.
Despite the fact that Payne had been assigned a task different from the
task of Robinson and Martinez, on his own he decided to assist them in their
work. Thus, Payne climbed the stairway and began to walk across the girder
without his safety line being hooked up. As Payne was walking across the
girder, Glenn saw him and waved him down with a flashlight. At this time,
an MSHA inspection team arrived. The MSHA inspector thereafter issued a
citation alleging a violation of 30 C.F.R. § 57.15-5 • 2/ The citation
stated:
Three welders were observed working on an oxygen
line about 30 feet off the ground. One of them
was observed walking a distance of about 30 feet
on a steel girder without a safety line hooked up.
Roy Glenn, shift bqss, was directing the work from
below. Crusher Building No. 2.

2/

30 C.F.R.

§

57.15-5 provides:

Mandatory. Safety belts and lines shall be worn when
men work where there is danger of falling; a second
person shall tend the lifeline when bins, tanks, or
other dangerous areas are entered.

The cited condition was abated by removing Robinson and Martinez from the,
girder with a cherry picker obtained from another department.of the mine. 3/
(Apparently Payne had walked back across the girder .and down the stairway.)
On February 22, 1980, as a result of an MSHA ·special investigation, the
Secretary filed an action against Glenn under section llO(c) of the Mine Act
for knowingly authorizing, ordering, or carrying out the cited vi9lationof
30 C.F.R. § 57.15-5. Glenn contested the 'secretary's· action and. a l:iearing
was held.
The administrative law judge found that· insofar as the actions of Payne
were concerned, Glenn had not knowingly authorized, ordered, or carrie~ out
a violation of the standard. The Secretary has not challenged this aspect
of the ju~ge's decision. As to Robinson and Martinez, the judge found that·
"there is no evidence to support MSHA's allegation that Glenn himself carried
out the violation or directly ordered the two miners to walk across the
girder without the benefit of a safety belt."
4 FMSHRC at 20. We agree.
We also agree with his further finding that Glenn did not "presume" that
the miners would walk across the girder. 4 FMSHRC at 21.
Nevertheless, the judge proceeded to find that Glenn violated section
llO(c) of the Act because he "indirectly authorized the violation." Id.
We hold that the judge's finding of a violation is incorrect as a matter
of law and, further, that a finding of corporate agent liability cannot
be sustained on the facts of this case even when the appropriate legal
test is applied.
Regarding the statutory language of section llO(c), we have held
previously that the proper legal inquiry for purposes of determining
corporate agent liability is whether the corporate agent "knew or had'
reason to know" of a violative condition. Secretary v. Kenny Richardson,
3 FMSHRC 8, 16 (January 1981), aff'd, 689 F.2d 623 (6th Cir. 1982), cert.
denied, 77 L.Ed. 2d (1983). There, we stated:
If a person in a position to protect safety and
health fails to act on the basis Qf information
that gives him knowledge or reason to know of
the existence of a violative condition, he has
acted knowingly and in a manner contrary' to the
remedial nature of the statute.

1/

The abatement notice stated:
Lift truck was brought in to take the other two
welders down in a safe way. The work was completed with the use of the lift truck.

A penalty proceeding brought against the corporate operator for the
violation was settled by the parties. FMSHRC Docket No. WEST 79-375-M.

1585

In Kenny Richardson the underlying violation of .a mandatory standard
existed at the time that the section llO(c) corporate agent violation
occurred (use of unsafe equipment). Here, however, Robinson and Martinez
had not yet violated the involved mandatory safety standard by walking
the girder at the time of Glenn's alleged violation of section llO(c).
We now apply our holding in Kenny Richardson to those situations
where, as here, a violation of a mandatory standard does not exist at
the time of the corporate agent's failure to act, but occurs subsequent
to that failure. Accordingly, we hold that a corporate agent in a
poeition to protect employee safety and health has acted nknowingly",
in violation of section llO(c) when, based upon facts available to him,
he either knew or had reason to know that a violative condition or
conduct would occur, but he failed to take appropriate preventive steps.
To knowingly ignore that work will be performed in violation of an
applicable standard would be to reward a see-no-evil approach to mine
eafety, contrary to the strictures of the Mine Act.
Our decision is supported by the legislative history of the
1969 Coal Act, in which Congress first set forth the basis for
establishing personal liability for agents of corporate operators.
House Committee on Education and Labor stated:

The

The Committee expended considerable time in discussing the role of an agent of a corporate
operator and the extent to which he should be
penalized and punished for his violation of the
·act ••••
••• The Committee chose to qualify the agent as
one who could be penalized and punished for
violations, because it did not want to break the
chain of responsibility for such violations after
penetrating the corporate shield.
R.R. Rep. No. 563, 9lst Cong., 2d Sess. 11-12 (1969), reprinted in Legis- lative History of Federal Coal Mine Health and Safety Act, at 568, 569 (1970).
I~ passing the 1977 Mine Act, Congress evidenced its concern over
the continuing high rates of preventable death and injury. Quoting a
study by a Special Mine Safety Board appointed by the Secretary of the
Interior, Congress observed:

On the basis of this analysis, 50.7 percent of the
fatal injuries were classified as resulting "from
circumstances over which the workmen had no control,
but which were within the scope and range of supervisory responsibility." That is: approximately half
of the 270 men killed were victims of inadequate
supervision, failure to provide safety devices,

158\3

defective equipment, collapses of roof which supervisors permitted to be unsupported, inadequate
ventilation, and other hazardous environmental
conditions reasonably within the power of management to prevent. (emphasis added)
R.R. Rep. No. 312, 95th Cong., 1st Sess. 4 (1977), reprinted in
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 360 (1977).
Consistent with this expressed legislative intent, the Commission
held in Kenny Richardson that a supervisor's blind acquiescence in
unsafe working conditions would not be tolerated. Onsite supervisors
were put on notice by our decision that they could not close their
eyes to violations, and then assert lack of responsibility for those
violations because of self-induced ignorance. Our decision here today
is buttressed by the same concerns and principles.
Under Kenny Richardson, the question is whether, given the facts
found in this case, Glenn either "knew or had reason to know" that
Robinson and Martinez would, in fact, walk the girder instead of
climbing the ladder and thereby violate the standard.
We answer this question in the negative. The judge specifically
found, and we agree, that there is no evidence that Glenn "carried out
the violation or directly ordered the miners to walk across the girder
without the benefit of a safety belt." 4 FMSHRC at 20. Nor does the
record establish that Glenn indirectly authorized the violation. Glenn
instructed Robinson and Martinez to take their safety belts and lines
with them in working. on the oxygen line. 4 FMSHRC at 17; Tr. 241.
Glenn did not observe either man actually cross the girder. 4 FMSHRC
at 20; Tr. 289. Glenn did not presume that Robinson and Martinez would
use the girder. 4 FMSHRC at 21. Glenn relied on Robinson and Martinez
to complete their assigned task safely; both were experienceg and highly
skilled miners who had worked on a girder many times prior to the incident
in question. 4 FMSHRC at 20; Tr. 263, 269, 270-71. Robinson had used
the ladder on occasion to get up to the girder. 4 FMSHRC at l.7. When
Robinson and Martinez crossed the girder, Glenn was busy ensuring·their
safety otherwise by checking to insure the oxygen line valves were shut
off; Glenn did not want the crew to cut into a pressurized oxygen line.
4 FMSHRC at 16; Tr. at 116, 272-73. !:_/
The findings of fact by the judge as to what Glenn had "reason
to know" when he assigned Robinson and Martinez the task of welding
the oxygen line do not support a legal conclusion that a violation of
section llO(c) occurred. The judge found only that Glenn had "reason

!!_/

In 21 years of Glenn's employment by Climax, neither he nor any
member of any crew that he had supervised had ever lost time from work
as a result of an accident. Tr. 283, 285.

1587

to know" that the two miners "might" use. the girder without the use
of safety belts and that, therefore, he had "reason to know" of a
"possible violative condition" because the men "might" or "could" walk
across the girder and forego use of the ladder. 4 FMSHRC at 20. As
a practical matter, supervisors will always have "reason to know" that
miners "might" perform tasks in an unsafe manner. This degree of knowledge, acct.irately phrased by the judge in the subjunctive mood, is too
contingent and hypothetical to be legally sufficient under our test
enun~iated above that a supervisor can be held personally responsible
under sectionllO(c) "when,.based upon the facts available to him, he
either knew or had reason to know that a violative condition or conduct
would occur, but he failed to take appropriate preventive steps." Moreover, for the reasons above, we reject the judge's legal conclusion that
Glenn violated section llO(c) by not instructing the miners to use the
ladder "because walking across the girder was at least as likely a means
of getting to the oxygen line." 4 FMSHRC at 21.
Before personal liability under section llO(c) can be imposed on an
operator's agent for "knowingly" authorizing, ordering, or carrying out
a violation, the Secretary's proof must rise above mere assertion that,
at the time of assignment, an assigned task could have been performed by
the miners in an unsafe as well as a safe manner. Adoption of this
rationale could mean that, in every instance in which a miner engages in
violative conduct, an operator's agent could be held personally liable
under section llO(c) for failing to anticipate the miner's unsafe
actions and not giving specific instructions to each miner, at the time
of assignment, to avoid all of the hazardous approaches to a task that
could be followed. We cannot accept as probative evidence to fill this
void in the record, the assertion made by counsel for the Secretary at
oral argument that "any reasonable man should have known at that time
that given the situation, ••• [the miners] clearly would take the
easiest course to get there." Oral Arg. Tr. 36. ]_I
In sum, although we agree with the judge's statement that agents of
corporate operators have a duty to prevent violations that they have
reason to know will occur, we hold that in this case Glenn, based upon
the facts available to him at the time of the work assignment, did not

5/
Although the Secretary argued in his brief that it is "obvious that
walking on girders without a safety belt is a common practice at Climax,"
he disavowed that position at oral argument and agreed that there is no
record evidence of such a practice. Oral Arg. Tr. at 46.

1588

6/
In light of this disposition we need not reach the other issues
raised by the parties.

1583

Commissioner Jestrab dissenting:
I respectfully dissent.

The statute provides in part:

Whenever a corporate operator violates a mand~tory
••• safety standard ••• any ••• agent of such
corporation who knowingly authorized ••• such
violation ••• shall.be subject to the same civil
penalties •••• 30 U.S.C. § 820(c).
Here the experienced Admininstrative Law Judge weighed the evidence
presented and found that the agent, Roy Glenn, knowingly authorized a
violation of the standard cited and he held the agent liable. I most
respectfully submit to my esteemed colleagues that there is substantial
evidence to support the finding.
The work to be performed was a welding job on a girder over 20 feet
above the floor. Tr. 22, 263. There were two ways to reach the workplace. Tr. 237. One way was to use a staircase and then walk across the
girder, which had no siderails or lines to which one could tie off a
safety belt. Tr. 24, 237. The other way was by use of a nearby ladder.
Tr. 237, 289. The former route was selected by the workmen and thus
neither workman could use his safety belt. Tr. 230, 231. The inspector
cited the employer for a violation of 30 C.F.R. § 57.15-5, which provides:
Mandatory. Safety belts and lines shall be worn when
there is a danger of falling ••••
~SHA

also cited the agent, Glenn, under 30 U.S.C. § 820(c) above.

The question here is whether the agent, Roy Glenn, knowingly
authorized the violation by the employer. Glenn knew of the two alternatives for reaching the site when he assigned the workman to the welding
task. Tr. 289. Glenn claimed he did not know how the workmen intended
to get to the workplace. See, e.g., Tr. 269, 292. Indeed, he suggested
that it was of no concern to him how they proceeded to the worksite. Id.
But the statute imposes upon him as an agent the duty not to authorize""""i
violation of the standard. He is charged with knowing that which was
clearly before him. His omission to eliminate the route across the girder
which violated the standard, or to bring it into compliance with handrails
or lines, was a knowing authorization implied in fact for the workmen and
hence the corporate operator to violate the standard. There was no showing
at the hearing by the agent, Glenn, that he had any expectation that the
ladder would be used or if used that it would have complied with applicable
safety regulations.
I would affirm the order.

1580

Commissioner Lawson dissenting:
Despite the rhetorical flourishes and obligatory obeisance to
precedent and legislative history, today the Commission majority vitiates
the principles established by Kenny Richardson. My colleagues err in
concluding that the findings of the judge below are legally insufficient
to support a finding of corporate agent liability under section llO(c)
of the Mine Act. The Mine Act places primary responsibility for maintaining safe and healthful working conditions in our nation's mines on mine
operators and their corporate agents. Sections 2(e) and lIO(c). In
Kenny Richardson the Commission held that a supervisor, as an agent of
management, is in a position to protect the safety and health of individual
miners and has a statutory duty to take affirmative action to prevent
violative conduct or conditions. By their decision in this case, my
colleagues have permitted corporate agents to abdicate that responsibility
and permit individual miners the choice of performing their work in an
unsafe manner, regardless of the hazard to them and their fellow miners.
This result is inconsistent with the Mine Act's preventive goals and
enforcement scheme. If through adequate supervision a violation can be
prevented, it is contrary to the purpose of the Act to permit this shift
of statutory responsibility.
The legislative history reflects, as the majority acknowledges, that
Congress was particularly concerned over the high number of mining injuries
and fatalities that resulted from inadequate supervision and hazardous
workplace "conditions reasonably within the power of management to prevent"
(emphasis added). H. R. Rep. No. 312, 95th Cong., 2d Sess. 4 (1977),
reprinted in Legislative History of the Federal Mine Safety and Health Act
of 1977, 95th Cong., 2d Sess. 357, 360 (1978). The key is prevention-management's duty to stop violations before they occur. This requires the
exercise of forethought by those responsible for maintaining safety in the
mines, and is a duty that is essential to achieve the statutory purpose.
The majority in this case fails to erect any affirmative standard
or framework against which one is to measure, not whether or not the
admittedly violative conduct might, or could occur, but indeed whether
it "would." Determining whether a violation "would" occur in the absence
of supervisory action is an exercise more suited to retrospective application than to prospective intervention. If intervention is not demanded
of an agent when unsafe conduct is "at least as l.ikely" as safe conduct,
but is to be required only when a violation is imminent, or has already
occurred, the Act's protections would indeed be hollow.
Under the
majority's rationale, i f the facts in this case had revealed that the
miners were proceeding into an area of unsupported roof, although an
1alternate route was available, no supervisory duty to intervene would
arise other than a last minute tackle by their supervisor, until they
had actually entered the hazardous area. One searches the statute and
legislative history in vain for support for such a standard.

1591

The jud·ge below found that Glenn had "sufficient information to give
him reason to know of a possible violative condition." 4 FMSHRC 13, 20.
He concluded that Glenn had a duty to instruct the miners he had ordered
to go up on this girder to use the ladder, finding that "walking across
the girder was at least as likely a means of getting to the oxygen lines
as using the ladder." 4 FMSHRC at 21. Substantial evidence, including
Glenn's own uncontroverted testimony, supports the judge's finding.
Glenn was aware of the construction of the girder, knew that there
were no handrails thereon, nor cable for attachment of safety lines (Tr.
286-7). 1/ The ladder, presented as the alternative means of access, 2/
was located 40 to 50 feet distant from the job site, "up on another deck"
(Tr. 286). Glenn was not only unaware of whether the ladder had been used
previously to reach the girder (Tr. 286), but testified that he "did not
think" about how the miners would reach the girder. According to Glenn,
the miners "had two choices: they could have walked across or they could
have got the ladder" (Tr~ 289). He did not even believe that walking this
girder, situated twenty feet above a concrete floor, presented a safety or \
falling hazard, despite the prohibition of the standard, of which Glenn was '
aware (Tr. 295). It is also undisputed that all three miners under Glenn's
supervision had not used the ladder--nor safety belts or lines--but had
traversed this girder without protection on the day in question. Slip op.
at 2. There is no dispute as to the propriety of Payne's attempting to
assist his fellow miners in the performance of the task at hand. In fact,
the miners were waiting on the girder for Payne to tell them when the
oxygen line had been bled and welding could begin (Tr. 130, 133). Work on
this girder had been undertaken twice prior to the date of this violation,
and Glenn did not know how the miners gained access to their work station
on those occasions. (Tr. 251, 271, 286, 293.) Finally, and perhaps of
greatest significance, if Glenn had seen miner Robinson walking across the
girder, he probably would not have stopped him, "because I have seen him
walk other things" (Tr. 297).

1/ It is true, as the majority states, that Glenn told his crew to take
their safety belts and lines with them. However, it is also true, as
Glenn acknowledged, that there was nothing to attach them to until the
crew reached the assigned work area on the girder, 28 to 30 feet from
the staircase.
2/ The very existence of a ladder at this mine capable of providing access
to the girder is questionable. The ladder itself was, according to Glenn,
"used for ventilation purposes," not for this girder. (Tr. 269.) It is
most unlikely that a 20-foot extension ladder, which simple observation
would reveal to have a maximum side-rail extension of 17 feet, would reach
a 5-1/2 inch thick girder that is 20 feet 2 inches above the floor, even
if (1) the ladder was positioned vertically rather than at the necessary
angle for stability, and (2) there was something to lean it against other
than the vertical support beam located 14 feet away from the work station
involved in this case. See 30 C.F.R. §§ 57.11-4. It is significant
that after arrival of the inspection party, rather than using this ladder
to remove Robinson and Martinez from the girder, Glenn had a cable strung
along the girder, upon instruction from his superior, and then personally
went and obtained a cherry picker to bring the two miners down. (Tr.
280-82, 287.)

1592

The judge below phrased Glenn's responsibility in terms of "indirect
authorization." Read in context, this does not appear to differ from
constructive "knowledge or reason to know," under the Kenny Richardson
test, that these miners would utilize the girder to reach their work site.
Indeed, it would appear that Glenn had actual knowledge of at least
Robinson's earlier noncompliance with the safety standard, and had
through inaction condoned such in the past. (Tr. 297.) Failing to
correct an unsafe practice which is known is indistinguishable from
authorizing that practice to continue.
Here, there was a "high probability of the existence of the fact in
question," U.S. v. Jewell, 532 F.2d 697, 700, (9th Cir.), cert. denied.
426 U.S. 951 (1967): walking the girder without utilizing safety belts.
Knowledge by Glenn of the violation of this standard by a member of his
crew is thus properly imputable to him. The facts in this case do not
present the situation, so alarming to the majority, in which a supervisor
fails to anticipate "all of the hazardous approaches to a task that could
be followed." (slip op. at 6). It is thus unnecessary to determine the
outer limits of an agent's liability under some factual construct not·
presented by this record. The judge's finding that use of the girder to
gain access to the work area was at least as likely as use of the--it
would appear inadequate--ladder, is no more than a restatement of Glenn's
own view of the alternatives presented. Glenn, as the judge found, did
not consider it to be unsafe for Robinson and Martinez to walk across
the girder without safety belts, preferring to rely on their opinion of
the hazard involved, rather than insisting that there be compliance with
the regulation. (Tr. 295, 4 FMSHRC at 20). This is, simply put, not only
to ignore, but to condone, unsafe and violative work practices by knowingly
allowing the individual miners that option.
The test under Kenny Richardson is whether Glenn had information
that would lead a person exercising reasonable care, who is responsible for the proper performance by miners of their assigned duties and
is in a position to forestall safety and health hazards, to be aware of
the existence of a violative condition, and whether he failed to act on
the basis of that information. 3 FMSHRC at 16. It is abundantly clear
from this record that Glenn should have known with the exercise of
reasonable, even minimal, diligence of the hazardous conduct involved in
this case, as the judge below found. See Austin Building Co., v. OSHRC,
647 F.2d 1063, 1067-68, (10th Cir. 1981). To ignore work performed or
to be performed, or not to think about how that work is to be done (Tr.
289), in violation of an admittedly applicable standard, is to reward
the type of see-no-evil approach to mine safety that the majority claims
to disavow. The judge's finding that Glenn had sufficient information
to give him reason to know of the existence of a violative condition and
a duty to act on the basis of that information is the relevant determination under Richardson, and is supported by substantial evidence. ]./

3/ To the extent that any doubt may have existed as to the degree of
Glenn's negligence and responsibility, the response of the judge below,
which was to reduce the proposed penalty from $500.00 to $40.00, would
appear to be both equitable and eminently reasonably. 4 FMSHRC at 21, 22.

1593

For the reasons set forth, I would affirm the decision and order of
the judge. 4/
I therefore join with Commissioner Jestrab and dissent.

A. E. Lawson, Connnissioner

4/ The judge's rulings on the constitutional and procedural issues raised
below and renewed before the Connnission are correct, for the reasons given.

1591.l

Distribution
W. Michael Hackett, Esq.
1310 South Denver
Tulsa, Oklahoma 74119
Michael McCord, Esq.
Anna L. Wolgast, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Edward H. Sherman, Esq.
Sherman & Sherman, P.C.
Suite 475, Capital Life Center
16th at Grant Street
Denver, Colorado 80203
Richard W. Manning, Esq.
Climax Molybdenum Company
1707 Cole Boulevard
Golden, Colorado 80401
Administrative Law Judge John Morris
Federal Mine Safety & Health Review Commission
333 West Colfax Ave., Suite 400
Denver, Colorado 80204

1595

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

July 18, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)

v.

Docket No. WEVA 83•65-R

KITT ENERGY CORPORATION
DECISION
This proceeding, arising under the Federal Mine Safety and Health Act
of 1977, 30 u.s.c. § 801 et~· (1982), involves the interpretation of
section 104(d) of the Mine Act. Section 104(d) authorizes the Secretary
to issue mine withdrawal orders for a certain chain of violations, the
chain to be broken only by an intervening "clean" inspection. The principal issue in this case is whether an inspection under section 104(d)(2)
of the Mine Act, commonly referred to as a "clean inspection," must be a
complete regular quarterly inspection. Also at issue is whether Kitt
Energy Corporation (Kitt)' unwarrantably failed to comply with 30 C.F ~R.
§ 75.1722(a), a machine guarding standard. A Commission administrative
law judge concluded that Kitt unwarrantably failed to comply with the
cited standard and affirmed the section 104(d)(2) withdrawal order issued
to Kitt, concluding that an intervening clean inspection of the mine had
not occurred so as to break the section 104(d) withdrawal order chain.
5 FMSHRC 201 (February 1983)(ALJ). For the reasons that follow, we reverse
on the clean inspection issue, but affirm the conclusion that Kitt unwarrantably failed to comply with § 75.1722(a).
On December 1, 1982, during a regular quarterly inspection of Kitt's
underground coal mine, an inspector of the Department of Labor's Mine
Safety and Health Administration (MSHA) issued a section 104(d)(l) citation
to Kitt alleging a violation of§ 75.1722(a). The citation stated that
"[a] guard was missing from the eccentric on the scalping screen and the
guard over the belt drive was not adequate in the bin area." J:./ The citation
1/

30 C.F.R. § 75.1722(a) provides:
Gears; sprockets; chains; drive, head, tail, and
takeup pulleys; flywheels; couplings, shafts;
sawblades; fan inlets; and similar exposed moving
machine parts which may be contacted by persons,
and which may cause injury to persons shall be
guarded.

indicated that the violation was "significant and substantial" and caused by
Kitt's "unwarrantable failure." See section 104(d)(l), 30 u.s.c. § 814(d)(l).
The citation was terminated 1-1/2 hours later, after Kitt blocked access to
the area with a mesh screen and posted a danger sign.
On December 22, 1982, the inspector issued a modification converting the
section 104(d)(l) citation to a section 104(d)(2) withdrawal order. 2/
He
did so after reviewing MSHA records and determining from those records that a
clean regular inspection of the mine had not been completed since the issuance
of a prior section 104(d)(2) withdrawal order on July 14, 1982. 1/

The alleged violative condition cited by the inspector involved moving
parts of a vibrator machine which controlled the flow of coal and sorted it
by size. The vibrator caused small pieces of coal to drop onto and through
a scalping screen down onto the slope conveyor belt carrying the coal to the
surface. Large pieces of coal were moved first to a crusher and then to the
slope belt. The citation alleged that the belt drive on the vibrator motor
was inadequately guarded and that the eccentric, a crescent-shaped wheel
behind the belt drive that rotated and moved the scalping screen, was
unguarded. The belt drive guard consisted of a sheet metal frame to which
a mesh screen was attached. The frame was not bolted to the floor. The
screen was attached loosely by wires, ended about 23 inches above the floor,
and had a hole in its upper right-hand corner. The eccentric protruded above
the belt guard at times during its rotation.
The inspector issued the citation during a regular inspection conducted
from October 14 through December 17, 1982. MSHA had issued a prior section
104(d)(2) order on July 14, 1982, during a regular inspection conducted at
Kitt's mine from July 2 through September 28, 1982. The administrative law
judge construed section 104(d)(2) of the Mine Act as requiring· a complete
regular inspection of the entire mine, during which no "similar" violations
are discovered, before an operator is removed from that section's continuing
withdrawal order sanctions. Finding that no such intervening complete regular
inspection had occurred here, he affirmed the order. The judge further found,
however, that MSHA had "visited" all active sections of the.mine in the period
between the issuance of the July 14 withdrawal order and the order at issue in
this proceeding.
On review, Kitt asserts that the judge's affirmance of the second section
104(d)(2) order is inconsistent with Commission case law, and that the Secretary failed to carry his burden of proving the absence of an intervening clean
inspection. Kitt further argues that the judge's finding that MSHA "visited"
all sections of the mine, without citing another similar violation, required
him to conclude that an intervening clean inspection sufficient to remove
Kitt from section 104(d)(2) sanctions had been completed.

2/
The inspector subsequently issued another modification deleting his
finding that the violation was significant and substantial.
11 The term "regular inspection" refers to the quarterly or semi-annual
inspections of underground or surface mines, respectively, "in [their]
entirety" mandated by section 103(a) of the Mine Act. 30 U.S.C. § 813(a).

159·;·

Section 104(d)(2) of the Mine Act provides:
If a withdrawal order with respect to any area in a
coal or other mine has been issued pursuant to
[section 104(d)(l)], a withdrawal order shall
promptly be issued by an authorized representative
of the Secretary who finds upon any subsequen~
inspection the existence in such mine of violations
similar to those that resulted in the issuance of
the withdrawal order under [section 104(d)(l)] until
such time as an inspection of such mine discloses no
similar violations. Following an inspection of such
mine which discloses no similar violations, the
provisions of [section 104(d)(l)] shall again be
applicable to that mine.
30 u.s.c. § 814(d)(2)(emphasis added). The dispute in the present case
concerns the meaning of the phrase "an inspection of such mine" as used
in section 104(d)(2). 'lhe Secretary argues that the judge correctly concluded that the phrase means only a complete regular inspection conducted pursuant to section 103(a). In the Secretary's view, only a complete
regular inspection is comprehensive enough to satisfy section 104(d)(2)'s
requirement, because only through such an inspection is a mine inspected
"in its entirety." The Secretary further asserts that to hold otherwise
would impose "serious enforcement problems" upon MSHA because the task of
determining whether a complete inspection has occurred since the issuance
of a preceding withdrawal order is complicated if a series of separate
inspections can comprise "an inspection" of the mine.
We have previously considered and rejected these same arguments in construing the identical statutory provision in the Federal Coal Mine Health
and Safety Act of 1969, 30 u.s.c. § 814(c)(l976)(amended 1977) • .£!!.!.
Steel Corp., 2 FMSHRC 3459 (December 1980); U.S. Steel Corp., 3 FMSHRC 5
(January 1981); Old Ben Coal Co., 3 FMSHRC 1186 (May 1981). In £!!.!. we
stated:
The requirement of a clean inspection before an
operator could avoid being subjected to section
104(c)(2) [now 104(d)(2)] withdrawal orders was
intended to further public interest in promoting
earnest and continuous compliance with mandatory
safety and health standards. Nothing in the
record, however, suggests that the Secretary's
position--that only a complete regular quarterly
inspection can constitute a "clean" inspection of
the entire mine--is necessary to achieve this
interest.
2 FMSHRC at 3461. Our conclusion on this issue was in accord with the longstanding adjudicative interpretation of the Coal Act provision by the
Department of Interior's Board of Mine Operations Appeals. In Eastern
Associated Coal Corp., 3 IBMA 331 (1974), the Board held that the language
at issue "appears to us to direct a thorough examination of the conditions
and practices throughout a mine." 3 IBMA at 358 (emphasis in original).

1598

On reconsideration, the Board stressed that "several completed partial or
completed spot inspections of a mine may be required to constitute a
'complete inspection' of a mine in order to lift the withdrawal order
liability of an operator from the provisions of section 104(c)(2) (now
104(d)(2)]." 3 IBMA 383, 386 (1974)(emphasis in original).
Nothing in the text of the Mine Act or its legislative history indicates
that this construction of the Coal Act's "clean inspection" provision was
flawed or contrary to legislative intent. Furthermore, nothing in the arguments repeated by the Secretary here persuades us that our prior construction
of this provision is inconsistent with and should not be applied to the Mine
Act. In fact, as explained below, we believe that adoption of the Secretary's
argument could prove a disincentive to maximum compliance efforts by mine
operators.
By its terms section 104(d)(2) requires that there be "an inspection of
such mine" disclosing no similar violations. A narrow, literal interpretation
of the term "an inspection" to mean any inspection, including an inspection of
only a portion of a mine, previously has been rejected. Eastern, 3 IBMA at
357-58. Instead, the term consistently has been construed to require the
inspection of a mine .!!!, its entirety. CF&I, supra; Eastern. Tilis construction is in complete accord with the passages in the Mine Act's legislative
history cited and relied upon by the Secretary in his brief. See s. Rep.
No. 181, 95th Cong., 1st Sess. 31-34 (1977), reprinted in Sena~
Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess.,
Legislative History of the Federal Mine Safety and Health Act of 1977,
at 619-22 (1978).
The Secretary's attempt to exclude from consideration under section
104(d)(2) all inspections other than the so-called regular inspections is
unconvincing. In previous litigation the Secretary has argued successfully
that "spot inspections," i.e., any inspection conducted for enforcement
purposes other than regular inspections, are conducted pursuant to section
103(a). ~ v. FMSHRC and Helen Mining Co., et al., 671 F. 2d 615 (D.C. Cir.
1982), .£!!.!~· SQb.!!2!!!_. Helen Mining Co. v. Donovan, 459 U.S. 927 (1982).
In that case the Secretary asserted that his designations of inspections as
"spot" or "regular" inspections are administrative designations not established
in the Act and that there is "substantial overlap" between the two "types"
of insp~ctions. See Sec. Brief in UMWA v. FMSHRC at 20, 21, 24. We find
this position conSIS'tent with our c"OriCTusion that inspections other than
"regular" inspections can be taken into account under section 104(d)(2).
Any MSHA inspector conducting any enforcement inspection authorized by
the Mine Act is required to cite every observed violation of the Act or its
standards. The fact that during a particular inspection an inspector may
give emphasis to particular types of hazards does not serve to place blinders
on the inspector or prevent the issuance of citations for other violations.
For example, an inspector is required to cite roof control violations he
observes even if he is present for an electrical inspection. Furthermore,
the fact that a miners' representative is entitled to accompany a federal
inspector during inspections (30 u.s.c. § 813(£); ~ UMWA v. FMSHRC, supra)
lessens the possibility that an inspector conducting an inspection with a
particular emphasis will fail to detect the presence of other hazards.

1598

We also believe that adoption of the Secretary's interpretation of section
104(d)(2) could undercut the incentive for maximum compliance efforts by mine
operators. Under the Secretary's interpretation, if a "similar violation"
under section 104(d}(2} results in the issuance of a withdrawal order at the
beginning of a regular inspection (which can last for three months), the
incentive to avoid further violations may be lessened because section
104(d)(2)'s sanctions have already been triggered. Thus, there is no
possibility that the operator can remove itself from the operation of
section 104(d)(2) until after the completion of the following regular
inspection. In contrast, ·applying the plain words of section 104(d)(2),
an operator has an immediate incentive to avoid future "similar" violations:
the operator knows that continued avoidance of similar violations will
remove it from the possible sanctions of section 104(d}(2} as soon as the
mine has been inspected in its entirety through any combination of regular
and spot inspections.
We are not persuaded by the Secretary's argument that extending the
construction consistently given to section 104(c)(2) of the Coal Act to the
identical language of section 104(d)(2) of the Mine Act will result in insurmountable problems of enforcement and proof. The Secretary asserts that MSHA
will be unduly burdened if, in order to sustain a section 104(d)(2) order, it
is required to establish that it has not inspected a mine in its entirety,
rather than simply showing that a clean regular inspection has not been
completed. The burden complained of is in part caused by the fact that mines,
or portions thereof, may be inspected at different times, in different
sequences, by different MSHA inspectors. According to the Secretary, unless
an inspector.is permitted to refer to the simple benchmark of whether a
complete clean regular inspection has occurred since the issuance of a prior
section 104(d) order, the enforcement purpose behind section 104(d)(2) will
be seriously frustrated by "complicated and time consuming problems of
record keeping and proof." Sec. Brief at 16.
We have difficulty reconciling the result sought by the Secretary with
the statutory requirements. Administrative convenience cannot be.a basis for
determining statutory rights. Section 104(d)(2) authorize& the issuance of
withdrawal orders "until such time as an inspection of such mine discloses no
similar violations." The burden of establishing the validity of such an order,
necessarily including proof that an intervening clean inspection has not
occurred, appropriately rests with the Secretary. It is not necessary to
view this burden, as the Secretary asserts, as requiring proof of a negative.
Rather, the Secretary must only demonstrate that when his inspector issued
the contested order, portions of the mine remained to be inspected. We do
not believe that this burden requires the Secretary to depend on evidence
unavailable to him in order to establish his case. In order to carry out
his statutory duties properly, the Secretary maintains records of all
inspections conducted in a mine and the extent of those inspections. The
contention that the Secretary or his representative cannot determine the
areas of a mine that have been inspected in any given period, or the areas
that remain to be inspected in a future period, gives us great concern.
The very same record keeping, which the Secretary claims to be burdensome,
is necessary in order to support the claim that a "regular" clean inspection
has not occurred. If the Secretary's record keeping system is not presently

1600

up to this task, of which we are not persuaded, proper administration of the
Mine Act requires that the Secretary maintain a workable mine inspection
record keeping system. ~/
For the foregoing reasons, we reject the Secretary's argument that under
section 104(d)(2) of the Mine Act, a clean inspection can only be comprised of
a complete regular inspection. Instead, we extend to section·l04(d)(2) the
prior consistent interpretation of section 104(c)(2) of the Coal Act, and hold
that the essential determinant of a clean inspection under section 104(d)(2) is
whether the entire mine has been inspected since the issuance of a prior 104(d)
order with no "similar" violations cited. 2_/
The factual question presented in this case is whether the inspections
conducted by MSHA between the first section 104(d)(2) order issued on July 14,
1982, and the second order issued on December
1982, comprised, in the
aggregate, a clean inspection of the entire mine. The judge made three
findings crucial to this question:

+,

[l]

MSHA began a complete quarterly inspection ("AAA inspection")
of the subject mine on July 2, 1982, and completed it on
September 28, 1982. Another quarterly inspection was begun
on October 14, 1982 ••••

[2]

A special technical inspection ("CEF investigation") was
commenced on July 19, 1982, and completed on August 6,
1982.

[3]

All the active sections of the mine were visited by MSHA
inspectors (in either the regular inspection or the
technical inspection) between July 19, 1982, and
September 28, 1982.

5 FMSHRC at 202. If supported by substantial evidence, these findings lead
to the conclusion that an intervening clean inspection had occurred between
the two withdrawal orders. (The Secretary does not atgue, and there is no
suggestion in the record, that the judge's use of the term "visited" was
intended to mean anything other than "inspected.")
Because of his view that a complete regular inspection was necessary to
remove the operator from the effect of section 104(d)(2), maintained despite
~, U.S. Steel, and O~.d Ben, supra, the Secretary did not attempt to

!!./

The Secretary further claims that rejection of his view would lead to
section 104(d)(2) orders being issued as a "matter of hindsight." We note
that in this case, where the inspector followed the Secretary's interpretation, he issued the subject· 104(d)(2) order only as a modification
to a citation issued three weeks earlier, after reviewing relevant MSHA
records.
5/
Administrative law judges of this Commission must follow our precedent
where applicable. The judge's failure in this case even to mention our prior
decisions construing section 104(c)(2) of the Coal Act is inexplicable.

1601.

establish that portions of Kitt's mine had gone uninspected since the issuance
of. the July 14 order. Therefore, the Secretary failed to establish an essential
element of his prima facie case. In addition, in this case the operator presented evidence as to the extent of the inspections made during the relevant
period. The prior section 104(d)(2) withdrawal order was issued on July 14,
1982, during a regular inspection that had begun only twelve·days earlier.
This regular inspection was not completed until September 28, 1982. During
the period of July 14 to September 28, two to three MSHA inspectors were in
all active sections of the mine conducting the regular inspection as well as
a combination of spot and technical inspections. During this period no other
unwarrantable failure citations were issued by any of the inspectors. On
October 14, 1982, another regular inspection was begun. Between that date
and December 1, 1982, when the violation at issue was cited, no other unwarrantable failure citations were issued. 6/ Thus, substantial evidence
supports the judge's finding that all active sections of the mine were
inspected in the period between the issuance of the July 14 order and the
December 1 citation. Therefore, we reverse the judge and vacate the order.
Invalidation of the order does not end the case, however. We have
held that the underlying violation survives the vacation of a section 104(d)
withdrawal order. Island Creek Coal Co., 2 FHSHRC 279, 280 (February 1980);
see also Consolidation Coal Co., 4 FMSHRC 1791, 1793-97, (October 1982). 7/
ifere, the inspector cited a violation of 30 C.F.R. § 75.1722(a). Kitt does
not challenge the judge's finding that one of the conditions described by the
inspector, i.e., the unguarded eccentric, violated the standard. Kitt does
contest, however, the judge's finding that the belt guard was inadequate.
Although our affirmation of the judge's finding of a violation of § 75.1722(a)
could rest on the unguarded eccentric alone, we will address briefly Kitt's
arguments regarding the~belt drive.
The judge concluded that the belt guard was in violation of the cited
standard because injury could result from contact with the moving belt drive
due to the gap at the bnttom of the screen, the hole in the upper right-hand
corner of the screen and its looseness. He found further that at least one
employee was in the area. during each of three shifts and that a rope or wire
across the area was not adequate to prevent access and in any event was not
present on the day the inspector issued the citation. 5 FMSHRC at 204-05, 207.
These findings are supported by substantial evidence. The record establishes
that on each of three shifts a miner was in the area to remove spillage from

6/
The dates of the MSHA inspections and the sections inspected were
contained in Exhibit C-18, a cumulative record of MSHA inspections of
active sections of the mine during this period. The Secretary objected
to the introduction of the exhibit solely because it did not specify the
types of inspections conducted, particularly the regular quarterly inspections, without which in his view there could be no intervening clean
inspection. The judge properly admitted the exhibit.
7/
Since the "significant and substantial" designation was removed from
the 104(d)(2) order, it does not become a 104(d)(l) order but a 104(a)
citation.

1. 6 Ln'~:,. _,

the scalping screen and other miners were intermittently in the area to perform
maintenance work. These miners had access to the scalping screen; they merely
lifted the rope or wire across the area when it was present. The scalping
screen operated almost continuously. Although most of the spillage dropped
through the metal floor grating, some spillage and grease were on the floor
near the scalping screen, creating a slip and fall hazard. The defects in
the screen and the level of employee exposure, taken together, support
affirmance of the judge's conclusion that the condition of the belt guard
violated the standard.
The judge further concluded that the lack of a guard on the eccentric,
as well as the inadequate guard on the belt drive, were caused by Kitt's
unwarrantable failure to comply with the standard. The judge found Kitt's
awareness of the unguarded eccentric demonstrated by recurring notations of
the condition in the preshift book, fabrication of replacement guards, the
ordering of a new guard, and the ineffective use of a wire to block access
to the area. - 5 FMSHRC at 207-08. He found unwarrantable failure as to the
belt guard because it was clearly visible and Kitt's chief electrician, who
visited the area monthly, should have been aware of it. 5 FMSHRC at 208.
Kitt challenges both of these findings.
For the reasons stated by the judge, we affirm his determination that
Kitt unwarrantably failed to guard the eccentric. ~U.S. Steel Corp.,
Docket Nos. LAKE 81-102-IDi, et al., June 26, 1984. Whether the judge
properly found unwarrantable-Yailure as to the belt drive guard is a closer
question, and we might have reached a different result de novo. The judge's
finding is based on his apparent belief that the belt drive guard had existed
in the condition observed by the inspector for some time and that the operator
had to have been aware of its ·condition. The record sheds little direct
light on the questions of how long the condition had existed and who was aware
of the violative condition. Nevertheless, in view of the conspicuous nature
of the defective condition of the belt guard, the testimony of Kitt's chief
electrician that he was in the area per~odically, and the lack of compelling
contrary record evidence on these points, we conclude that substantial
evidence supports the judge's unwarrantable failure finding as to the belt
drive guard. We note, however, that only one citation was issued and only
one violation alleged.

1 SO~J

Accordingly, we reverse the judge's finding that the section 104(d)(2)
withdrawal order was validly issued, but affirm his conclusions that Kitt
violated the standard and that the violation was caused by Kitt's unwarrantable failure.

Distribution
Linda L. Leasure, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
B. K. Taoras, Esq.
Kitt Energy Corporation
455 Race Track Road
P.O. Box 500
Meadow Lands, PA 15347
Gregory A. Riley
Safety Comm. Chairman
Local 2095, Dist. 31
· 1306 Pennsylvania Ave.
Fairmont, West Virginia

26554

Administrative Law Judge James Broderick
Federal Mine Safety & Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia 22041

1603

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MIMI: SAFETY AND HEALTH REVIEW t.OMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
F~LLS CHURCH, VIRGl!lllA 22041.

JULY 2, 1984

•

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

.
.

v.
CARBON COUNTY COAL COMPANY,
Respondent

CIVIL PENALTY PROCEEDING
Docket No: WEST 83-106
A/O No: 48-01186-03031
Carbon Mine

..

RULING ON MOTION AFTER REMAND FROM THE COMMISSION
AND RECONSIDERATION
The Commission has remanded this case to me for reconsideration of Respondent's Motion for Summary Decision. The
Commission did not give instructions as to what I should do
subsequent to reconsideration of the motion. I am therefore,
going to treat the matter as though I were ruling on it for
the first time. For the reasons stated hereinafter, I will
DENY respondent's motion for summary judgement and will
anticipate going to trial in this case. */ If the respondent
feels it to be worth while, it can again-petition the Commission
for interlocutory review and if the petition is granted I
will again stay with the proceedings.
The holding in Zeigler Coal Company vs. Kleppe, 536
Fed. 2d. 398 (O.C. cir. 1976) is that the violation of a
non-controversial ventilation plan is the equivalent of a
violation of a mandatory standard. The terms of the ventilation
plan involved in that case were not in dispute. The Court
went on however, to discuss hypothetical plans which might
contain controversial requirements. The Court said for
example at Page 406-407:
The statute makes clear that the ventilation
plan is not formulated by the Secretary, but is
"adopted by the operator•" While the plan must be
approved by the Secretary's representative who may

V

Certain language in the Commission's opinion indicates to
me· tbat the Commission wanted me to grant the Motion for
Summary Judgement in favor of Carbon County Coal. But the
Commission had before it all the facts that I have before me
and if it wanted the motion granted it could have done so
itself or it could have ordered me to grant it.

1607

on that account have some significant leverage in
determining its contents, it does not follow that
he has anything close to unrestrained power to
impose terms. For even where the agency representative
is adamant in his insistence that certain conditions
be included, the operator retains the option to
refuse to adopt the plan in the form required.
Were the statute not clear enough on its face, the·
IBMA's recent decision in Bishoaccoal Company
estaplishes beyond doubt that a option of the plan
by the operator is an essential prerequisite to
the enforcement of any of its terms.
The agency's recourse to such a refusal to
adopt a particular plan appears to be invocation
of the civil and criminal penalties of section
109, which require an opportunity for public
hearing and, ultimately, appeal to the courts. At
such a hearing, t.he operator may offer argument as
to why certain terms sought to be included are not
proper subjects for coverage in the plan. Because
we believe that the statute offers sound basis for
narrowly circumscribing the subject matter of
ventilation plans, we conclude that this opportunity
for review is a substantial safeguard against
significant circumvention of the section 101
procedures.
The last paragraph quoted above describes a situation
very similar to what occurred in the instant Carbon County
case. The procedire in the instant case is succintly described
on pages 2 and 3 of the Commission's decision as follows:
The Carbon No. 1 Mine is located in MSHA Coal
Mine Safety and Health District 9,.headquartered in
Denver, Colorado. District 9 had published "guidelines" regarding the contents of ventilation system
and methane and dust control plans. The District 9
guideline regarding the amount of air to be made
available to auxiliary exhaust fans stated "]T[he
volume of intake air delivered to the fan prior to
the fan being started shall be greater than the free
discharge capacity of the can." The District 9 guideline essentially restated MSHA's national guideline
regarding the amount of air to be made available to
exhaust fans. The national guideline stated in part:
"]T]he volume of positive intake air current available • • • shall be greater than the free discharge
capacity of the fan." The legal effect of the
District 9 guideline, and of MSHA's possible reliance
upon it during the plan review process, are at issue
in this case.

1608

By Auqust 1981, neqotiations over the free
discharqe capacity requi·rement reached an impasse,
and the parties were unable to aqree on a plan
requirement qoverninq the amount of air to be made
available to the auxiliary fans. In a letter dated
August 21, 1981, MSHA revoked its approval of
carbon county's plan dated August 25, 1980, and
stated that it would not approve Carbon County's
plan unless the plan contained the free discharge
capacity provision. After MSHA's revocation of
approval of Carbon County's plan, Carbon County
failed to submit a plan containing the provision
sought by MSHA and continued to operate the mine.
As a result, MSHA issued a citation and withdrawal
order to Carbon County, under sections 104(a) and (b)
of the Mine Act, respectively, for operating without
an approved ventilation plan. The violation was
abated when MSHA approved, and Carbon County adopted,
a plan which contained the free discharge capacity
requirement. MSHA then sought a civil penalty for
the alleged violation.
On Paqe 407, the Zeigler court stated that the
ventilation plan "was not to be used to impose general requirements of a variety well suited to all or nearly all coal
mines, but rather to assure there is a comprehensive scheme
for realization of the statutory goals in-the particular
instance of each mine." This is the language principally
relied on by re.spondent. As I understand respondent's
position, inasmuch as MSHA is following a guideline which
contains a requirement that is not a mandatory standard, it
must be following that guideline universally in apparent
violation of the language in the Zeigler opinion. As to
the guidelines themselves MSHA has habitually instructed its
district offices and inspectors by the various Cook, and
Crawford memorandums as well as by the inspection manuals.
This Commission has never felt that it or the operators were
bound by such guidelines and many of them have been either
set aside or ignored by the Commission and its judges. If
this case ever comes to trial I may decide that the guideline
in question is invalid and that the proper amount of air to
be supplied at the face must exceed the capacity of the
exhaust fan if the tubing fails at the worst possible place.
In all likelihood such a requirement would not be "suited to
all or nearly all coal mines" and would not contradict the
court's dicta. In fact any quantity of air that I might
decide upon, unless I uphold the MSHA guideline in its
entirety, would ~robably not be a quantity of air suited to
all or nearly all mines. But if on the other hand, I find,
as a matter of engineering fact, that in order to avoid recirculation as prohibited by a mandatory standard, it is
necessary to have the air at the face exceed the free

1609

discharge capacity of the exhaust fan in any mine, then the
guideline should apply to all mines and the fact that the
provision is not a specific mandatory standard and the
quoted language of the Ziegler case should not be allowed to
stand in the way of mine safety.
I find that there are unresolved factual issues necessary
for the resolution of this case and that a summary decision
is not appropriate. The Motion is accordingly DENIED.

~e./ll~,J.

Charles C. Moore, Jr.,
Administrative Law Judge
Distribution:
Robert E. Vagley, Esq., Preston, Thorrngrimson, Ellis and
Holman, Suite 500, 1735 New York Avenue, N.W •. , Washington,:.
D.C. 20006 (Certified Mail)
Robert A. Cohen, Esq., Office of 'the Solicitor, U.S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203.
(Certified Mail)

/db

1610

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

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

JUL 3 19a.4

.: CIVIL PENALTY PROCEEDING
: Docket No. LAKE 84-24
: A.C. No. 12-01729-03502
.
.: Grandview Dock

v.
GRANDVIEW DOCK CORPORATION,
Respondent

DECISION
Appearances:

Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor, Chicago,
Illinois, for Petitioner;
Cedric Hustace, Esq., Bowers, Harrison, Kent
& Miller, Evansville, Indiana, for
Respondent.

Before:

Judge Melick

Hearings were held in this case on April 24, 1984, in
Evansville, Indiana. A bench decision was thereafter rendered and appears below with only non-substantive changes.
That decision is now affirmed.
This case is, of course, before me upon the petition
for assessment of civil penalty, filed by the Secretary of
Labor, pursuant to section 105Cd) of the Federal Mine Safety
and Health Act of 1977, for five violations of mandatory
standards. The issues before me are whether there were violations of the regulatory standards as-cited, and, if so,
whether the violations were "significant and substantial,"
as set forth in the Act and as defined by the Commission.
If violations are found to exist, I must also determine the
appropriate civil penalty to be assessed. The operator in
this case, Grandview Dock Corporation (Grandview), challenges only the amount of penalty to be assessed and does
not challenge the existence of the violations or that they
were "significant and substantial."
Citation No. 2319454 charges a violation of the regulatory standard at 30 C.F.R. § 77.1710Cd) and reads as
follows: "Kermit Harlen, miner, was not wearing a suitable
1

1611

hard hat <no hat) •. He was in the workinq area of the coal
crusher facilities." The cited standard provides in essence
that a suitable hard hat or hard cap must be worn when in or
around a mine or plant where fallinq objects may create a
hazard.
Now, the evidence in this case indicates that durinq
the course of a spot inspection of the Grandview facilities
on October s, 1983, Inspector Stanley ozalas observed two
miners, Kermit Harlen and Richard Briqqeman, workinq in the
mine premises without hard hats. There is no dispute that
the violation was accordinqly committed by the operator.
Accordinq to the undisputed testimony of Inspector
Ozalas, the hazard here was created by the fact that there
was only 20 to 30 feet from where these miners were working
an elevated coal conveyor belt from which chunks of coal,
varying in size from the size of a fist to the size of a
man's head, were falling. The conveyor was on an incline,
risinq to a height of approximately 25 to 30 feet. Beneath
the conveyor was a travelway on which miners were walking.
Considerinq the weiqht of the chunks of coal, the· inspector
opined that serious injuries and, indeed, a fatality could
occur from such a condition. That is, a miner walking
beneath the conveyor, without a hard hat, exposed to the
fallinq chunks of coal. The inspector also observed that
the conveyor rollers weighing about 15 pounds have been
known to fall off the conveyor.
Foreman, Jack Crowe, also admitted in essence that he
was aware of the 'coal chunks falling off of the conveyor
inasmuch as he told the inspector that he had intended to
install sideboards to prevent the coal from falling off. It
is also clear from the inspector's testimony that Mr. Crowe
could easily have seen the men working without their hard
hats. So under all the circumstances, I do consider that
this violation was of a serious nature,-and was the result
of operator negligence. The cited condition was abated in a
timely fashion, when the miner immediately retrieved his
hard hat and put it on.
It is not disputed that the violation charged in Citation No. 2319455 was the same as that charged in the prior
citation except that it involved a different miner, Richard
Briggeman, not wearing his hard hat. The two men were working side by side and were exposed to the same hazards. I .
therefore find that this violation was also serious and was
caused by operator negligence.,

1612

Citation No. 2319446 charges a violation of the regulatory standard at 30 C.F.R. § 77.410, and reads as follows:
"The automatic warning device did not give an audible alarm
when the 988B Caterpillar No. 1 end loader was put in
reverse. The end loader was operating over the entire coal
crusher site."
The cited standard reads as follows: "Mobile equipment, such as trucks, fork lifts, front end loaders, tractors and graders shall be equipped with an adequate
automatic warning device, which shall give an audible alarm
when such equipment is put in reverse."
According to the undisputed testimony of Inspector
Ozalas, there was indeed no backup alarm on the cited frontend loader. Moreover, during the course of the inspection,
the loader nearly backed into the inspection party. The
violation was hazardous because of the number of pedestrians
moving about the premises, including truck drivers who
occasionally exit their trucks, a coal sampler, the foreman,
the operator of the small Bobcat front-end-loader and two
other miners. The hazard was increased because of the
limited visibility to the rear, and the fact that the loader
was being operated carelessly. In addition, since no one
was acting as a spotter, it was impossible for the machine
operator to know whether pedestrians were behind him.
Although the loader operator claimed that he did not
know the alarm was defective, I accept the inspector's undisputed testimony that the backup alarm is loud enough so that
the operator should know when it fails. Moreover, since the
foreman was situated within 20 feet of the loader, he should
have been aware of the malfunctioning alarm. I find that
serious and fatal injuries were likely under the circumstances and that it was therefore a serious hazard. I further
find that the violation was caused by operator negligence.
Citation No. 2319457 charges a violation of the standard
at 30 C.F.R.· § 77.400Ca) and reads as follows: "A guard was
not provided to prevent a person from contacting the rotating
pulley and conveyor belts, and result in injury. The conveyor
belt was transferring coal from the coal crusher." Citation
No. 2319458 also charges a violation of that standard and
reads as follows: "A guard was not provided to prevent a person f rom;.contacting the rotating pulley and conveyor belt and
result in injury. The conveyor belt was transferring coal to
the coal crusher."

1613

The cited standard provides that, "Gears, sprockets,
chains, drive, head, tail, and takeup pulleys, flywheels,
couplings, shafts, saw blades, fan inlets, and similar exposed
moving machine parts, which may be contacted by persons and
which may cause injury to persons shall be guarded." Inspector Ozalas testified that the exposed belt and rotating pulley
noted in Citation No. 2319457 was located only 12 inches off
the ground and within 2 or 3 feet of a walkway. The unguarded
area was described as approximately 4 feet long, 2 feet wide,
and 5 feet across the end and over the top of the belts. In
other words, both the sides and the top of the exposed area
needed covering or other protection.
The conveyor was in operation when cited, and the rapidly
moving pulley, indeed, posed a serious hazard to miners working nearby and to passersby contacting the moving parts, becoming entangled and having limbs crushed or broken, and even
causing fatalities. Indeed, according to Inspector Ozalas,
there has been a history of fatalities resulting from miners
caught. in such moving machine parts. The greaser and the
miner responsible for cleanup around the conveyor were the
most likely persons exposed to the hazard. While the foreman
indicated that it was the practice for the machinery to be
shut down before cleanup and/or greasing operations, it is not
unusual according to Ozalas for employees to nevertheless disregard such practice and to work near these dangerous exposed
moving machine parts resulting injuries and, indeed, fatalities. Under the circumstances, I find that there was a
serious hazard created by this violation.
.
I also find that the violation was the result of a high
degree of negligence and in fact was a violation known by
mine management. The guard was lying adjacent to the
exposed area and was partially covered with coal, indicating
to the inspector that it had been lying there for some time.
The mine foreman also admitted to Inspector Ozalas that he
knew the protective guard had been removed.
The facts surrounding Citation No. 2319458 are similar,
in that the protective guard had been removed. The guard in
this case had been damaged and a part was missing. The
exposed conveyor and pulley were only about a foot off the
ground and the pulley was only 2 or 3 feet from a walkway
known as an employee short cut. It thereby posed a serious
hazard to miners working on the belt or passing nearby. The
fast moving conveyor was also operating when cited and under
the circumstances I find that serious hazard existed. There
was also a high degree of negligence, based on the admissions

1614

of the foreman that he had, indeed, had the guard removed
from the conveyor and pulley.
Now, in determining the amount of penalty to be assessed
in this case, I must look also, of course, to the size of the
mine operator, and the history of its violations. The mine
operator is apparently small in size, but I am particularly
concerned in this case with its history of violations. The
inspector has testified, and this is supported by the computer
printout of record (Petitioner's Exhibit No. 6), that there
has been a pattern of prior violations of the standards cited
in this case. This evidence shows that on December 15, 1981,
there had been an equipment guarding violation, on January 20,
1982, there had been two equipment guarding violations, and ori
March 2, 1983, there had been another equipment guarding violation. In addition, with respect to the failure to have a
backup alarm in this case, I note that qn January 20, 1982,
there were two violations for failing to have operative backup
alarms and again on March 2, 1983, a violation for failing to
have an operative backup alarm.
This pattern of violations, with, I note, rather small
assessments given, shows to me that the mine operator has
not been impacted sufficiently to take corrective m~asures
with respect to these violations. I therefore am going to
assess penalties in excess of those proposed by the
Secretary of Labor in this proceeding.
ORDER
The Grandview Dock Corporation is ordered to pay the
following civil penalties within 30 days of the date of this
decision:
Citation No.
Citation No.
Citation No.
Citation No.
Citation No.

2319454
2319455
2319456
2319457
2319458

$

112
112
300
250
250

,~·

l
lick
nt Chief
I

\

\

\
1615

dministrative Law Judge

Distribution:
Miguel J. Carmona, Esq., Office of the Solicitor, U.S.
Department of Labor, 230 South Dearborn Street, 8th Floor,
Chicago, IL 60604 (Certified Mail)
Cedric Hustace, Esq., Bowers, Harrison, Kent & Miller, 4th
Floor, Permanent Federal Savings Building, Evansville, IN
47708 (Certified Mail)
/fb

1616

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, loth FLOOR
15203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

JUL 3 1984
CIVIL PENALTY PROCEEDINGS

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

Docket No. PENN 83-96
A.C. No. 36-03425-03516

v.

Docket No. PENN 83-97
A.C. No. 36-03425-03517

U.S. STEEL MINING COMPANY,
INC.,
Respopdent

Maple Creek No. 2 Mine
DECISION

Appearances:

David A. Pennington, Esq., and Thomas A.
Brown, Esq., Office of the Solicitor, U.S.
Department of Labor, Philadelphia,
Pennsylvania, for Petitioner1
Louise Q. Symons, Esq., Pittsburgh,
Pennsylvania, for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The above cases involve alleged safety violations in
the same mine cited during inspections in December 1982.
The cases were consolidated for the'p~rposes of hearing and
decision. A total of eight citations are involved in the
two dockets, and the parties have proposed to settle three
of them. Pursuant to notice, the cases were called for hearing in Washington, Pennsylvania, on November 29 and 30, 1983.
Because of the unavailability of a government witness, the
cases were continued to April 24, 1984, when the hearing was
completed. Alvin Shade, Okie Wolfe and Francis E. Wehr testified on behalf of Petitioner1 Paul Gaydos, Brian Howarth
and Wayne Croushore testified on behalf of Respondent. Both
parties have filed posthearing briefs. Based on the entire
record and considering the contentions of the parties, I
make the follow decision.

.,
16 .l *
1""'1

PROPOSED SETTLEMENT
Citation No. 2013974
This citation charged a violation of 30 C.F.R. § 75.503
because a conduit was out of the packing gland on the left
headlight and. on the methane monitor of the continuous miner.
The violation was originally assessed at $136 and was designated significant and substantial. By the settlement agreement, the parties agreed that the violation was not
significant and substantial and proposed to settle for a
payment of $50. Because of the construction of the headlight, it was not possible for the condition to cause a
safety hazard. I accept the representations in the motion
and will approve the settlement agreement.
Citation No. 2013976
This citation charged a violation of 30 C.F.R. § 75.1105
because a battery charging station was not vented directly
into return air. The violation was originally assessed at
$136. The parties propose to settle for $100. Respondent
had attempted to vent to the return by knocking holes in
nearby stoppings but the inspector required a check curtain
at the charging station. I accept the representations in the
motion and will approve the settlement.
Citation No. 2102667
.

I

This citation charged a violation of 30 C.F.R. § 75.1403
because a locomotive being operated on track haulage was not
equipped with a suitable lifting jack and bar. The violation
was originally assessed at $98. The parties propose to
settle for $50. Subsequent investigation disclosed that the
locomotive was tramming to the motor: barn and would have
reached that destinatiGn in about 5 minutes and would have
been provided with a lifting jack and bar before leaving the
barn. I accept the representations in the motion and will
approve the settlement agreement.
FINDINGS OF FACT COMMON TO ALL VIOLATIONS
1. At all times pertinent to this proceeding, Respondent
was the owner and operator of an underground coal mine in
Washington County, Pennsylvania, known as the Maple Creek No.
2 Mine.
'
2. Respondent is a large operator, producing in excess
of 15 million tons of coal annually.

1618

3. In the 2-year period prior to the issuance of the
citations involved herein, the subject mine had 469 paid
violations of mandatory safety and health standards, 394 of
which were designated as significant and substantial. This
history is not such that penalties otherwise appropriate
should be increased because of it.
4. The imposition of penalties in this proceeding will
not affect Respondent's ability to continue in business.
5. The violations involved in this case were abated
.timely and in good faith.
DOCKET NO. PENN 83-96
Citation No. 2013973
6. On December 9, 1982, Federal Coal Mine Inspector
Francis E. Wehr issued Citation No. 2013973 alleging a violation of 30 C.F.R. § 75.503 because the battery covers on a
scoop tractor being operated-at the last open crosscut were
not secured to the frame of the battery.
7. On December 9, 1982, the battery covers were not
locked or bolted to the frame of the battery compartment on
a Kersey scoop tractor used in the last open crosscut in the
subject mine. The covers consisted of four separate lids
made of one-quarter inch steel plate. They fit over the
battery compartments "like the top of a shoe box fits over
the shoe box." Two of them weighed about 80 pounds each1
the other two weighed about 50 pounds each. There was a
1-inch lip around the outside edges of the compartment.
Each lid has insulating material on the undersurface. The
lids are approximately 1 to 1-1/4 inches from the battery
terminals.
8. The subject mine liberates more than one million
cubic feet of methane in a 24-hour period.
9. Devices were provided on the lids to lock the
battery covers in place, but the bolts needed to secure them
were missing.
10. When the scoop is in use, the batteries are
normally recharged each shift. When they are recharged, the
lids have to be lifted to help ventilate the battery.

1618

11. Citations have been issued at the subject mine for
the same condition as described in this citation.
12. In the normal operation of a scoop tractor, battery
covers can be jarred. However, there is a lip of 1 inch on
the lids and a tongue in the back that fits through the lids.
Therefore, in order for the lid to pick up from its place, it
would have to bounce up at least an inch and then slide back.
Citation No. 2102601
13. On December 14, 1982, Federal Coal Mine Inspector
Alvin L. Shade issued Citation No. 2012601 alleging a violation of 30 C.F.R. S 75.1003 because the energized trolley
feeder wire on a track haulage switch was not guarded.
14. On December 14, 1982, the trolley feeder wire on
the track haulage switch in the 6 Flat 1 chute was not
guarded. Miners were required to travel under this switch
regularly. The wire was approximately 5 and 1/2 feet from
the mine floor. It was not insulated and carried 550 volts
of direct current. The section was not producing coal, but
cars and supplies were stored in the area.
15. The guard boards which normally guarded the
trolley wire at the switch had been dislodged and were lying
on the ground when the citation was issued.
16. The area is preshift examined daily. A "shopped"
mine car was parked in the chute at the time the citation
was issued.

Citation No. 2102602
17. On December 15, 1982, Inspector Shade issued
Citation No. 2102602 charging a violation of 30 C.F.R.
§ 75.516 because eight energized power wires were in contact
with combustible material.
18. On December 15, 1982, eight energized power wires
supplying power to signal lights and an electric switch on
track haulage in the subject mine were hung on wooden planks
bolted to the roof and were not insulated. The wires were
also touching the coal roof.
19. The wires carried 550 volts of direct current.
The area was subject 'to preshift examinations. The area was
damp. There was no tension on the wires at the time the
citation was issued.

1620

DOCKET NO. PENN 83-97
Citation No. 2013980
20. On December 14, 1982, Inspector Wehr issued
Citation No. 2013980 charging a violation of 30 C.F.R.
§ 75.400 because of an accumulation of combustible material
around the track dusting machine.
21. On December 14, 1982, there was an accumulation of
approximately 53 empty rock dust bags at No. 23 room along
the 2 Flat main haulage room in the subject mine. The bags
were piled in and around the track rock dusting machine.
22. The bags had apparently been left by the prior
shift. The rock duster has an electric motor and its power
is supplied by a cable. The cable was fully insulated.
Rock dust was present on the mine floor, approximately
16 inches deep.
23. There were energized trolley wires and trolley
feeder wires approximately 20 feet from the' area of the
empty bags. The rock duster was not operating at the time
the citation was issued.
24. Respondent has a verbal clean up program which
provides that the crew using the bags pick them up before
they leave the mine, place them on a supply truck and park
it on a side chute until the next supply crew picks up the
truck and takes it to the outside.
25. Respondent has been cited for this same condition
several times in the past.
Citation No. 2102666
26. On December 15, 1982, Fed~ral Coal Mine Inspector
Okey H. Wolfe issued Citation No. 2102666 charging a violation of 30 C.F.R. § 75.1106 because stored oxygen and acetylene cyliners were not properly secured.
·27. On December 15, 1982, there were four oxygen and
two acetylene cylinders stored in a block building at the
mouth of No. 5 flat belt in the subject mine, which cylinders were not secured to prevent being accidentally tipped
over. The cylinders were pressurized.

1621

28. The storage area for the cylinders was subject to
preshift examination.
29. The tanks were standing upright. The oxygen
bottles contained metal caps. A chain bolted to the wall
was provided to hold the cylinders but was not secured
around them.
APPLICABLE REGULATORY PROVISIONS
30 C.F.R.

§

75.503 provides as follows:

The operator of each coal mine shall
maintain in permissible condition all
electric face equipment * * * which is taken
into or used inby the last open crosscut of
any such mine.
30 C.F.R. § 18.44Cc> provides as follows: "Battery-box
covers shall be provided with a means for securing them in a
closed position."
30 C.F.R. § 75.1003 provides in part as follows:
Trolley wires, trolley feeder wires, and
bare signal wires shall be insulated adequately where they pass through doors and
stoppings, and where they cross other power
wires and cables. Trolley wires and trolley
feeder wires shall be guarded adequately:
(a) At all points where men are
required to work or pass regularly under the
wires7
Cb) On both sides of all doors and
stoppings7 and
Cc)
30 C.F.R.

At man-trip stations.
§

75.516 provides as follows:

All power wires (except trailing cables
on mobile equipment, specially designed
cables conducting high-voltage power to underground rectifying equipment or transformers,
or bare or insulated ground and return wires)
shall be supported on well-insulated insulators and shall not contact combustible material, roof, or ribs.

1 ue.· .').,,..,
!')

30 C.F.R. § 75.400 provides as follows: °Coal dust,
including float coal dust deposited on rock-dusted surfaces,
loose coal, and other combustible materials, shall be
cleaned up and not be permitted to accumulate in active workings, or on electric equipment therein. 0
30 C.F.R. § 75.1106-3 provides in part as follows:
Ca> Liquified ~nd nonliquified
compressed gas cylinders stored in an underground coal mine shall be

*

*

*

*

*

*

*

(2) [P]laced securely in storage areas
designated by the operator for such purpose,
and where the height of the coalbed permits,
in an upright position, preferably in
specially designated racks or otherwise
secured against being accidentally tipped
over.
ISSUES
With respect to each citation the issues are Cl>
whether the cited violation occurred1 (2) if it did, whether
it was significant and substantial1 and (3) if it did, what
is the appropriate penalty.
CONCLUSIONS OF LAW
1. Respondent is subject to the provisions of the
Federal Mine Safety and Health Act ot 1977 in the operation
of the Maple Creek No. 2 Mine, and I have jurisdiction over
the parties and subject matter of this proceeding.
1

2. The condition described in Findings of Fact Nos. 7
through 12 did not constitute a vioiation of 30 C.F.R.
§ 75.503.
DISCUSSION
Two Administrative Law Judges have considered similar
alleged violations of 75.503 and ruled that the lip around
the covers and the tongues on the covers constituted means
for securing the battery box covers in a closed position.
Secretary v. U.S. Steel,· 6 FMSHRC 155 (1984) CALJ).
Secretary v. U.S. Steel, __ FMSHRC _ _ (June 8, 1984>

162 u' )

(ALJ). Since the issue here was decided in these prior
proceedings involving the same parties, the prior decisions
are !.!!. judicata. See Secretary v. U.S. Steel 5 FMSHRC 1334
(1983) CALJ). Therefore, I conclude that the condition
cited was not a violation of the mandatory standard.
3. The condition described in Findings of Fact Nos. 14
through 16 constituted a violation of 30 C.F.R. § 75.1003.
Respondent does not contest the finding that the trolley
feeder wire in question was not guarded.
4. The violation was significant and substantial.
Miners travelled in the area regularly and could receive
electric shocks if they touched the bare wire. Reasonably
serious injuries would likely result from the violation.
5. The violation was serious. Respondent should have
been aware of it. An appropriate penalty for this violation
is $200.

6. The condition described in Findings of Fact Nos. 18
and 19 constituted a violation of 30 C.F.R. § 75.516. The
energized eiectric power wires going to the signal lights
and electric switch had been placed on top of a wooden plank
bolted to the roof. They were also in contact with the coal
roof. Apparently some of the coal had potted out and the
insulated hooks which held the wires had fallen down and the
wires were placed on the plank.
7. The hazard created by the above violation was the
possibility of a mine fire in the event of a short in the
wire and a failure or melting of the fuse. I conclude that
the violation was significant and substantial.
8. The violation was moderately serious. Respondent
should have been aware of the condition and should have
corrected it. I conclude that an appropriate penalty .for
the violation is $150.
9. The condition described in Findings of Fact Nos. 21
to 25 constituted a violation of 30 C.F.R. § 75.400. The
rock dust bags which are combustible had been permitted to
accumulate.
10. The hazard created by the violation was a mine
fire. The likelihood of such an occurrence was remote. The
violation was not significant and substantial.

162 1
1

11. The violation was not serious. The negligence was
slight - consisting in permitting the bags to be strewn on
and against the rock dusting machine. Except for that, the
clean up plan was being followed.. I conclude that an appropriate penalty for this violation is $50.
12. The condition described in Findings of ract Noa.
27 to 29 constituted a violation of 30 c.r.R. S 75.1106.
The oxygen and acetylene tanks were not properly secured
although they were in a storage area.
13. The hazard created by this violation is that.the
cylinders could be knocked over and the valve broken or the
cylinder ruptured. Such an occurrence is less likely in a
storage area than in a roadway, compare Secretari v. u.s.
Steel, S FMSHRC 1728, 1732 Cl983) CALJ), but it s nevertheless reasonably likely. The violation was significant and
substantial.
14. The violat;on was serious and since it should have
been known by Respondent, was caused by its negligence. I
conclude that an appropriate.penalty for this violation is
$125.
ORDER
Based on the above Findings of Fact and Conclusions of
Law, it is ORDERED
1.

Citation No. 2013973 is VACATED.

2. Citation Nos. 2013976, 2102601, 2102602, 2102~67,
2012666 are AFFIRMED as properly charging significant and
substantial violations.
3. Citation Nos. 2013974 and 2013980 charge violations
not properly designated as significant·· and substantial.
4. Respondent shall within 30 days of the date of this
decision pay the following civil penalties for violations
found herein to have occurred.

CITATION

PENALTY

2013974
2013976
2102601
2102602

$

1625

so

100
200
150

2102667
2102666
2013980
Total

j

{l...it.<.S

50
125
50
$ 725

A-6','?'ci:/'/el

James A. Broderick
Administrative Law Judge

Distribution:
David A. Pennington, Esq., and Thomas A. Brown, Esq., Office
of the Solicitor, U.S. Department of Labor, Room 14480
Gateway Building, 3535 Market Street, Philadelphia, PA 19104
(Certified Mail)
Louise Q. Symons, Esq., 600 Grant Street, Room 1580,
Pittsburgh, PA 15230 (Certified Mail)
/fb

162G

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

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

o1984

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-14
A.C. No. 12-01890-03507
Lengacher Mine No. 1

EARTH COAL COMPANY, INC.,
Respondent
DECISI'ON
Appearances:

Miguel J. Carmona, Esq., Office of the
Solicitor, U.S. Department of Labor,
Chicago, Illinois, for Petitioner;
Mr. Byron w. Terry, Tell City, Indiana,
for Respondent.

Before:

Judge Melick

This case is before me upon a petition for assessment of
civil penal·ty under section 110 {a) of the Federal Mine Safety
and Health Act of 1977 (the Act). At hearings in Evansville,
Indiana, Petitioner moved to withdraw and vacate Citation
No. 2353623 on the grounds that the cited Caterpillar Model
627 Scraper did not come within the scope of equipment covered
by the cited regulation, 30 C.F.R. § 77.1605(b). The motion
was granted at hearing and is now af:firmed. Following
hearings on the merits, Petitioner filed a motion to approve.
a Eettlement agreement and to dismiss the case. A reduction
in penalties from $326 to $250 was proposed. I have considered the testimony 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.
WHEREFORE, the motion for approval of settlement is
GRANTED, and it is ORDERED that Respondent pay the following
penalties within 30 days of this decision:

Citation No. 2343622
Citation No. 2353624
Citation No. 2353625

$150
50
50

-

,,
'

!

'
I

-Ga:t'y M

Assist
Distribution:
Miquel J. Carmona, Esq.,·o f'ce of the Solicitor, U.S.
Department of Labor, 230 So th Dearborn Street, 8th Floor,
Chicaqo, IL 60604 (Certified Mail)
Mr. Byron w. Terry, Safety Director, Grandview Dock Corporation,
P.O. Box 306, Tell City, IN 47586 (Certified Mail)
/fb

1628

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

JUL 6 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. VA 83-56
A.C. No. 44-04920-03513

v.

Docket No. VA 83-57
A.C. No. 44-04920-03514

HJ AND H COAL COMPANY, INC.,
Respondent

...

Docket No. VA 83.-58
A.C. No. 44-04920-03515
Docket No. VA 83-59
A.C. No. 44-04920-03516
No. 3 Mine

DECISION
'Appearances:

Patricia L. Larkin, Esq., Office of the
Solicitor, u.s. Department of Labor, Arlington,
Virginia, for Petitioner;
John L. Bagwell, Esq., Grundy, Virginia,
for Respondent.

Before:

Judge Broderick

STATEMENT OF THE CASE
The above cases all involve the s~~e mine and were consolidated for the purposes of hearing and decision. Of the nine
alleged violations in the four dockets, the parties moved for
approval of settlement agreements concerning six of them.
Pursuant to notice, the cases were heard in Abingdon, Virginia,
on June 5, 1984. Respondent admitted that the violations
occurred, and testimony was taken on the three which were not
settled for the purpose of determining appropriate penalties.
Federal Mine Inspectors Ronald Matney and Donald Shortridge
testified on behalf of Petitioner. No witnesses were called
by Respondent. The parties waived their rights to file
posthearing briefs.
•

162 dn

SETT·LEMENT PROPOSAL

Docket No. VA 83-56
1 • . citation No. 2158823 charged a violation of 30 c.F.R.
75.313 because of an inoperative methane monitor on a cutting
machine. The violation was originally·assessed at $20 and the
parties propose.to settle for $60. There. is no history of
methane at the mine. The machine operator was carrying a
methane detector. The mine is above the water table. I
accepted the representations in the motion and approved the
settlement.
§

2. Citation No. 9925742 charged a violation of 30 C.F.R.
20.208(a) because of the failure of Respondent to take
respirable dust samples for the 2-month period June and
July 1982. The violation was originally assessed at $20 and
the parties propose to settle for $40. Respondent's dust
samples are now taken by a contraqtor. Respondent represents
that the contractor is reputable, and that Respondent will see
to it that samples are taken on a bi-monthly basis. I accepted
the representations in the motion and approved the settlement.
§

Docket No. VA 83-57
1. Citation No. 2159242 charged a violation of 30 C.F.R.
77.1103(d) because of Respondent's failure to keep a transformer station area free of weeds. The violation was originally assessed at $20,and the parties propose to settle for
$20. The violation was stated not to be serious. The weeds
had just begun to grow and were not high. The condition had
not been cited in the past. I accepted the representations
in the motion and approved .the settlement.
§

2. Citation No. 2159243 charged a violation of 30 C.F.R.
77.509 because of Respondent's faflure to keep a transformer
station locked against unautqorized entry. The violation was
originally assessed at $20 and the parties propose to settle
for $80. The area is somewhat isolated, and unauthorized
entry is unlikely. However, .the condition has been cited in
the past, and serious injury is possible. I accepted the
representations in the motion and approved the settlement.
§

3. Citation No. 2159244 charged a violation of 30 C.F.R.
75.403 because of Respondent's failure to record the results
of onshift daily inspections. The violation was originally
assessed at $20, and the parties propose to settle for $20.
The inspections had in fact been made, but not recorded. I
accepted the ·representations in the motion and approved the
settlement.
§

Docket No. VA ·83-58
1. Citation No. 936387 charged a violation of 30 C.F.R.
75.305 for failure to make weekly examinations for hazardous
conditions in an abandoned section. The violation was originally assessed at $20, and the parties propose to settle for
$20. The operator believed the area was unsafe for entry to
conduct the tests and filed a petition for check points.to
conduct the examinations. Ultimately the area was ordered
sealed. I accepted the representations in the motion and
approved the settlement.
§

CITATIONS .IN WHICH THE PENALTY IS CONTESTED
1. Respondent does not contest the fact of violation
in any of the three citations involved.
2. Between August 24, 1980 and August 23, 1982, there
were 11 violations assessed and paid at the subject mine.
This is a moderate history of prior violations.
3. The subject mine· produces 200 to 300 tons of coal
daily and employs from 7 to 15 miners. Respondent is a small
operator.
4. There is no evidence that penalties assessed herein
will affect Respondent's ability to continue in business.
5. The mine employs a conventional mining system with
one section. The coal is removed. by conveyor belt. The coal
seam is 36 to 40 inches high.
6. The mine is 2,000 to 4,000 feet deep. It has a very
hazardous slate roof and a history of roof falls.
7. On June 6, 1983, Inspector Matney issued Citation
No. 2159241 charging a violation of 30 ~.F.R. § 75.1714(a).
8. On June 6, 1983, there were ten miners working
underground. Only three self-contained self rescuers were
present. Coal was being produced.
9. Respondent had an approved self-contained self rescuer
storage plan which required that such devices be stored not
more than 400 feet outby the face at the power station on
intake air with two approac;:hes •.
10. An investigation and checking of serial' numbers disclosed that Respondent had sent the self rescuers to a· nearby
mine owned by M P & M Coal Company to enable the latter to
abate a citation for failure to have a self rescuer for eac·h
employee.

1631

11.

The violation was deliberate.

12. The violation was v.ery serious. The mine had seals
·erected in it, and there was a high degree of possibility of
cutting into oxygen deficient atmosphere. Without an adequate
number of self rescuers, this could result in fatal injuries
to miners.
13 •. I· conclude that an appropriate penalty for the violation is $2,500.
14. On July 12, 1983, Inspector Matney issued Citation
No. 2159249 charging a violation of 30 C.F.R. § 75.202.
15. On July· 12, 1983, there were four or five dislodged
timbers in the main haulage area of the subject mine. They
had probably been knocked out by a scoop.
16. The roof in the area was not bad. This is a heavily
travelled area and Respondent should have been aware of it.
17. An injury was not·likely to occur as a result of the
violation.
18. I conclude that an appropriate penalty for the
violation is $50.
19. On July 12, 1983, Inspector Matney issued Citation
No. 2159250 charging a violation of 30 C.F.R. § 75.200.
20. On July 12, 1983, at numbers 5, 6 and 7 entries and
adjoining crosscuts on the working section, the roof bolts
were spaced from 53 inches to 60 inches at several locations.
21. The approved roof-control plan at the subject mine
required that roof bolts be installe'd on 4 foot centers.
22. The roof was composed of slate and was fragile. A
number of. unplanned roof falls have-occurred at the subject
mine.
23. The operator should have been aware of the condition.
It occurred on the working section which was heavily travelled.
24. The violation was .. serious. Because of the· condition
of the roof, strict following of the roof-control plan is
imperative.
25. I conclude that an appropriate penalty for this
violation is $150.

1632

ORDER
Based on the above f indinqs of fact and conclusions of
law, Respondent is ordered to pay the followinq civil penalties
within 30 days of the date of this decision.
CIT:ATI'ON

PENALTY

2158823
9925742
2159242
2159243
2159244
936387
2159241
2159249
2159250

$

60
40
20
80
20
20
2,500

so

Total

J

1

·

150

$2,946

f(

t1.iVtM>5 )-.611i cfe V1.
James A. Broderick
Administrative Law Judqe

Distribution:
Patricia L. Larkin, Esq., Office of the Solicitor, U.S~
Department of Labor, 4015 Wilson Boulevard, Arlinqton, VA
22203 (Certified Mail)
John L. Bagwell, Esq., P.C., P.O. Box 923, Grundy., VA 24614 (Certified Mail)
/fb

•

1633

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

July 11, 1984
UNITED MINE WORKERS OF
AMERICA {UMWA),
ON BEHALF OF
JAMES ROWE, et al. ,

DISCRIMINATION PROCEEDINGS
Docket No. KENT 82-103-D
MADI CD 81-23

JERRY D. MOORE ,

Docket No. KENT 82-105-D
MADI CD 82-05

LARRY D. KESSINGER,

Docket No. KENT 82-106-D
MADI CD 82-04 .

v.

Complainants
Eastern Division Operations

PEABODY COAL COMPANY,
Respondents
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
~
ADMINISTRATION {MSHA) ,
ON.BEHALF OF
THOMAS L. WILLIAMS,
Complainant

Docket No. LAKE 83-69-D
VINC CD 83-04

v.
Eastern Division Operations
PEABODY COAL COMPANY,
Respondent
DECISION
•

Appearances:

Mary Lu Jordan, Esq., United Mine Workers of
America, Washington, D.C. on behalf of Complainants James Rowe, et al., Jerry D. Moore
and Larry D•. Kessinger;-.
Frederick W. Moncrief, Esq., Office of the
Solicitor, Arlington, Virginia, on behalf
of Complainant, Thomas L. Williams;
Michael o. McKown, Esq., Peabody Coal Company,
St. Louis, Missouri, for Respondent.

Before:

Judge Merlin.

These cases are before me pursuant to the Commission's
order dated June 18, 1984.

Introduction
These cases present the question whether under section
105(c) of the Federal Mine Safety and Health Act of 1977
(hereinafter referred to as "the Act"), 30 U.S.C. § 815(c),
the operator discriminated against laid off miners by violating their statutory rights regarding training set forth
in section 115 of the Act, 30 U.S.C. § 825, and Part 48 of
the Regulations, 30 C.F.R., Part 48.
The Act and the regulations set forth certain training
which miners must receive.
In determining which laid off
miners to recall to work, the operator gave preference to
miners who met the training requirements of the Act and
regulations. The Complainants contend that under the Act,
it was the operator's responsibility to provide the necessary training and that by not doing so with respect to laid
off miners and then taking their lack of training into
account in deciding who to put back to work, the operator
discriminated by violating the statutory right to training.
LAKE 82-69-D is a complaint of discrimination brought
by the Secretary of Labor under section 105(c) (2) on behalf
of Thomas L. Williams, a laid off miner. KENT 82-105-D and
KENT 82-106-D are complaints of discrimination brought by
the United Mine Workers (hereinafter referred to as the
"UMW") under section 105(c) (3) on behalf of Jerry D. Moore
and Larry D. Kessinger, respectively, both of whom are laid
off miners. KENT 82-103-D is a complaint of discrimination
filed by the union as a class action on behalf of Peabody's
Eastern Division laid off employees.
Statutory Provisions
Section 115 of the Act, supra, provides as follows:
Sec. 115. (a)
Each operator of a coal or other mine
shall have a health and safety training program which
shall be approved by the Secretary. The Secretary
shall promulgate regulations with respect to such
health and safety training programs not more than 180
days after the effective date of the Federal Mine
Safety and Health Amendments Act of 1977. Each training program approved by the Secretary shall provide as
a minimum that (1)
new miners having no underground mining experience shall recei~e no less than 40 hours of
training if they are to work underground. Such
training shall include instruction in the statutory rights of miners and their representatives

1635

under this Act, use of the self-rescue device and
use of r~spiratory devices, hazard recognition,
escapeways, walk around training, emergency procedures, basic ventilation, basic roof control,
electrical hazards, first aid, and the health and
safety aspects of the task to which he will be
assigned1
(2) · new miners having no surface mining experience shall receive no less than 24 hours of training if they are to work on the surface. Such
training shall include instruction in the statutory rights of miners and their representatives
under this Act, use of the self-rescue device
where appropriate and use of respiratory devices
where appropriate, hazard recognition, emergency
procedures, electrical hazards, first aid, walk
around training and the health and safety aspects
of ·the task to which he will be assigned;
(3) all miners shall receive no less than eight
hours of refresher training no less frequently
than once each 12 months, except that miners
already employed on the effective date of the
Federal Mine Safety and Health Amendments Act of
1977 shall receive this refresher training no more
than 90 days after the date of approval of the
training plan required by this section;
(4) any miner who is reassigned to a new task in
which he has had no previous work experience shall
receive training in accordance with a training
plan approved by the Secretary under this subsection in the safety and ~ealth aspects specific
to that task prior to performing that task;
(5) any training required by paragraphs (1) , (2) ,
or (4) shall include a period of training as
closely related as is practicable to the work in
which the miner is to be engaged·.
(b) Any health and safety training provided under
subsection (a) shall be provided during normal working
hours. Miners shall be paid at their normal rate of
compensation while they take such training, and new
miners shall be paid at their starting wage rate when
they take the new miner training. If such training
shall be given at a location other than the normal
place of work, miners shall also be compensated ~or the
additional costs they may incur in attending such
training sessions.

*

*

*

*

*

*

1636

*

*

*

*

*

Part 48 of 30 C.F.R. sets forth the training requirements for underground mines (Subpart A) and surface mines
(Subpart B) •
Section lOS(c) of the Act, supra, provides as follows:
(c) (1) No person shall discharge or in any ·manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner, representative of miners or applicant for employment in
any coal or other mine subject to this Act because such
miner, representative of miners or applicant for employment has filed or made a complaint under or related
to this Act, including a complaint notifying the operator or the operator's agent, or the representative of
the miners at the coal or other mine of an alleged
danger or safety or health violation in a coal or other
mine, or because such miner, representative of miners
or applicant for employment is the subject of medical
evaluations and potential transfer under a standard
published pursuant to section 101 or because such
miner, representative of miners or applicant for employment has instituted or caused to be instituted any
proceeding under or related to this Act or has testified or is about to testify in any such proceeding, or
because of the exercise by such miner, representative
of miners or applicant for employment on behalf of
himself or others of any statutory right afforded by
this Act.
··
(2) Any miner or applicant for employment or representative of miners who believes that he has been
discharged, interfered with, or otherwise discriminated
against by any person in violation of this subsection
may, within 60 days after such violation occurs, file a
complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the
respondent and shall cause such investigation.to be
made as he deems appropriate. Such investigation shall
commence within 15 days of the Secretary's receipt of
the complaint, and if the Secretary finds that such
complaint was not frivolously brought, the Commission,
on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the
miner pending final order on the complaint. If upon
such investigation, the Secretary determines that the
provisions of this subsection have been violated, he
shall immediately file a complaint with the Commission,
with service upon the alleged violator and the miner,
applicant for employment, or representative of miners

1637

alleging such discrimination or interference and propose an order granting appropriate relief. The Commission shall afford an opportunity for a hearing; (in
accordance with section 554 of title 5, United States
Code, but without regard to subsection (a) (3) of such
section} and thereafter shall issue an order, based
upon findings of fact, affirming, modifying, or vacating the Secretary's proposed order, or directing
other appropriate relief. Such order shall become final 30 days after its issuance. The Commission shall
' have authority in such proceedings to require a person
committing a violation of this subsection to take such
affirmative action to abate the violation as the Commission deems appropriate, including, but not limited
to, the rehiring or reinstatement of the miner to his
former position with back pay and interest. The
complaining miner, applicant, or representative of
miners may present additional evidence on his own
behalf during any hearing held pursuant to this paragraph.
(3) Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in
writing, the miner, applicant for employment, or representative of miners of his determination whether a violation has occurred. If the Secretary, upon investigation, determines that the provisions of this subsection
have not been violated, the complainant shall have the
right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf before
the Commission, charging di'scrimination or interference
in violation of paragraph (1). The Commission shall
afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without
regard to subsection (a) (3) of such section) , and
thereafter shall issue an order, based upon findings of
fact, dismissing or sustaining the Complainant's charges and, if the charges are sustained, granting such
relief as it deems appropriate, including, but not
limited to, an order requiring the rehiring or reinstatement of the miner to his former position with back
pay and interest or such remedy as may be ap~ropriate.
Such order shall become final 30 days after its issuance. Whenever an order is issued sustaining the
complainant's charges under this subsection, a sum
equal to the aggregate amount of all costs and expenses
(including attorney's fees} as determined by the Commission to have been reasonably incurred by the miner,
applicant for employment or representative of miners
for, or in connection with, the institution and prosecution of such proceedings shall be assessed against

1638

the person committing such violation. Proceedings
under this section shall be expedited by the Secretary
and the Commission. Any order issued by the Commission
under this paragraph shall be subject to judicial review in accordance with section 106. Violations by any
person of paragraph (1) shall be subject to the provisions of sections 108 and llO(a).
Factual and Procedural Background
On June 19, 1981, the operator sent a letter to all
laid off employees in its Eastern division, advising them
that Federal and state law required that they meet minimum
standards prior to resuming work after having been laid off.
Effective immediately, if laid off from any Peabody facility, it was their responsibility to keep their training
current. If they failed to do so, they would be bypassed
for recall in favor of panel members whose training was
current.
The "panel" referred to in the operator's letter was
established by Article XVII(d) of the National Bituminous
Coal Wage Agreement of 1981 to which the operator was a
party and which provides in pertinent part as follows:
Employees who are idle because of a reduction in the working force shall be placed
on a panel from which they shall be returned to employment on the basis of seniority as outlined in section (a). A
panel member shall be considered for every
job which he has listed on his layoff form
as one to which he wishes to be recalled.
Each panel member may revise his panel
form once a year.
Article XVII(a) of the 1981 Agreement defines seniority
as "length of service and ability to step into and perform
the work of the job at the time the job is.awarded."
Pursuant to its letter dated June 19, 1981, the operator bypassed a laid off miner, who would otherwise be recalled for a job under the 1981 Agreement, if the operator
determined that such miner required training under 30 C.F.R.
Part 48, before he could "step into and perform the work of
the job.··
In December 1982, Joseph Lamonica, MSHA's administrator
for Coal Mine Safety and Health advised the Director of
Training for Peabody that the operator's policy of requiring
up-to-date training status under Part 45 was inconsistent

1639

with the ·Act.
In April 1983, MSHA revoked approval of the
operator's training plans and issued appropriate citations.
The operator then discontinued its policy and the citations
were terminated.
The parties have divided laid off miners involved in
these suits into three categories. Category I consists of
those individuals who, as a result of the operator's policy,
obtained training on their own time and at their own expense, and were then recalled to work by the operator. The
operator subsequently agreed to pay Category I individuals.
On November 4, 1983, a Decision Approving Settlement was
issued granting a monetary judgment for named miners in
Category I and dismissing all suits regarding Category I
with prejudice.
Category II is comprised of individuals who were bypassed on the recall panel because the operator determined
they would need additional training under Part 48 to fill
the job, and therefo~e were not considered experienced
miners under the regulations.
It is agreed that the named
plaintiffs suing for themselves all fall within Category II,
i.e., laid off miners who were "bypassed" as described
above.
In LAKE 83-69-D, the Complainant, Thomas L. Williams, was an experienced underground miner who, upon being
laid off, was placed on a recall panel and indicated·an
interest in surface mine positions. Because Mr. Williams
had not received the training for a surface miner required
by section 115 and Part 48, the operator bypassed him in
favor of a miner with fewer years of service.
In KENT 83105-D, the Complainant, Jerry D. Moore, also was a laid off
underground miner who wanted a surf ace mine job but was
bypassed by the operator because he did not satisfy the
training requirements of section 115 and Part 48 of the
regulations for surface mines. Similarly, the Complainant
in KENT 83-106-D, Larry D. Kessinger, was a laid off underground miner who was bypassed for a surface job because
the surf ace training he had was insufficient to meet the
training requirements of the Act and regulations.
Category III is composed of individuals who, as a result of the operator's policy, obtained training on their
own time and at their own expense, but whose names were not
reached on the recall panel because of their relatively
shorter length of service.
KENT 82-103-D is a suit by the union on behalf of all
laid off Peabody employees in the Eastern Division. This
includes Category II and Category III miners only since
Category I was settled.
It names James Rowe, a UMW official
at the time KENT 82-103-D was filed, as a representative of
all laid off miners in the operator's Eastern Division.

1640

Summary Decision
All parties have moved for summary decision under
Commission Rule 64, 29 C.F.R. § 2700.64, which provides that
a motion for summary decision shall be ~ranted if the entire
record shows that there is no genuine issue as to any
material fact and that the moving party is entitled to
summary decision as a matter of law.
In the cases brought by the union, the union and the
operator have entered into and submitted 68 stipulations.
Although the stipulations contain material which does not
belong in sets of factual stipulations, I conclude that the
stipulations set forth agreed-upon facts sufficient to
enable me properly to render summary decision. They also
make clear that what is involved is a question of· law. In
the case brought by the Secretary, the operator responded to
the Secretary's Request for Admission of Facts by admitting
the relevant circumstances and showing that the issues of
law involved are the same as those in the other cases.
Accordingly, here too, I conclude that summary decision
would be proper.
Class Action
In KENT 83-103-D, the United Mine Workers seeks to
bring a class action on behalf of all laid off Peabody
employees, Eastern Division. The procedural rules of the
Commission do not specifically provide for class actions,
but under 29 C.F.R. § 2700.1(,b), the Commission or Administrative Law Judge is to be guided so far as practicable by
the Federal Rules of Civil Procedure as appropriate.
Rule 23 of the Federal Rules of Civil Procedure provides in pertinent part as follows:
(a) Prerequisites to a Class Action. One or more
members of a class may sue or be sued· as representative
parties on behalf of all only if (1) the class is so
numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the
class, (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the
class, and (4) the representative parties will fairly
and adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:

1641

•

(1) the prosecution of separate actions by or
against individual members of the class would
create a risk of
(A) inconsistent or varying adjudications
with.respect to individual members of the
class which would establish incompatible
standards of conduct for the party opposing
the class, or
(B)
adjudications with respect to individual
members of the class which would as a practical matter be dispositive of the interests
of the other members not parties to the
adjudications or substantially impair or
impede their ability to protect their interests; or
(2)
the party opposing the class has acted or
refused to act on grounds generally applicable to
the class, thereby making appropriate final injunctive relief or corresponding declaratory
relief with respect to the class as a whole; or
(3)
the court finds that the questions of law or
fact common to the members of the class predominate over any questions affecting only individual
members, and that a class action is superior to
ot~er available methods for the fair and efficient
adjudication of the controversy. The matters
pertinent to the findings include: (A) the interest of members of the class in individually
controlling the prosecution or defense of separate
actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the
desirability or undesirability of concentrating
the litigation of the claims in the particular
forum; (D) the difficulties likely to be encountered in the management of a class action.
As set forth above, a settlement has been reached with
respect to Category I. The union's attempt to br~ng a class
action for Categories II and III remains.
The burden is on the party who seeks to utilize the
class action to establish his right to do so.
Zeidman v.
McDermott, 651 F.2d 1030 (5th Cir. 1981). After due consideration, I conclude that the union has failed to satisfy
several important requirements of Rule 23 .

•

The only named Complainant in KENT 82-103-D, which is
brought by the union on behalf of all laid off Peabody employees, Eastern Division, is James Rowe.
The union's
motion in opposition to the operator's motion to strike
admits Mr. Rowe is not a laid off miner (p. 7-8, UMW's
Opposition to Motion to Dismiss}. At the time suit was
filed, Mr. Rowe was employed by the union but as of December
30, 1982, he had returned to his job at a Peabody surface
mine. The union argued in its motion that since Mr .. Rowe is
a miner at a Peabody mine, he will be subjected to all Peabody policies, including the policy at issue in this case.
Following the union's rationale, every active Peabody
employee would be a party to this suit, although they do not
fall within the class of laid off employees, as delineated
by the union itself.
Assuming the union's description of Mr. Rowe's present
status is correct, it does not provide a basis upon which he
can serve as a representative of the specified class.
Rule 23 requires that a class representative be a part of
the class and possess the same interest and suffer the same
injury as the class members. E. Texas Motor Freight System,
Inc. v. Rodriguez, 431 U.S. 395 (1977}. Mr. Rowe cannot
qualify as a representative of the class merely because he
worked in the Union Safety Division where his duties were
concerned with improving the health and safety of union
members.
His job duties at the union, even if they had
continued, would not put him in the situation of a laid off
employee. Since Mr. Rowe was not a laid off miner, he could
not have the same interest nor did he suffer the same
injury as the putative class. Mr. Rowe must be stricken as
a representative example of the class of laid off employees.
Moreover, the union itself cannot adequately and fairly
represent either Category II or Category III complainants.
In its motion to oppose the operator's motion to dismiss,
the union asserts that because it "is an organization whose
very purpose is to protect the interests of the miners it
represents," it will fairly represent the interests of the
class (pp. 7-8, UMW's Opposition to Motion to Dismiss}.
However, the dilemma of union's counsel in trying to decide
what kind of relief to seek demonstrates the inability of
the union to represent the diverse and conflicting interests
of all members of the bypassed class.
Union counsel could
not decide whether to seek reinstatement of bypassed miners
since such action could require "bumping" a union member
with less seniority (Tr. 80-82, Hearing October 13, 1983}.
In Airline Stewards & Stewardesses Ass'n Local 550 TWU, AFLCIO, v. American Airlines, 490 F.2d. 636 (7th Cir. 1973} the
court held that a labor union, presumably largely under
control of present employees, is not a proper representative

1643

of all separated and present employees in an action charging
discriminatory separation and seeking, inter alia, reinstatement, since there are obvious antagonistic interests
among the class.
It is further clear from the "bumping" issue that not
only is the union unable to represent the class but also
that there are conflicting claims between the members of the
class themselves. The Supreme Court has pointed out that to
the extent that persons have dual and potentially conflicting interests, they cannot be regarded as in the same class.
Hansberry v. Lee, 311 U.S. 32 (.1940).
The union also has not met the requirements of Rule
23(a)(l) because it has failed to show that the members of
Categories II and III are so numerous that joinder would be
impracticable. As support for the class action, the union
relied upon the affidavit dated August 9, 1981, of Mike
Turner, a Peabody employee, which stated that since June 19,
1981, there had been 1000 layoffs and 380 recalls, but that
it was impossible to identify instances of bypassed miners.
With respect to Category II, therefore, the Turner affidavit
expressly states there is no information. With respect to
Category III, the figures in the affidavit are two years old
and more importantly, it is not clear upon what they are
based. Moreover, the information the union itself furnished
strongly militates against allowance of a class action.
Counsel for UMW.has asserted that both Categories II and III
have a finite number of members. This would appear to be
so, especially since the operator has discontinued the challenged policy. At the hearings, union counsel stated that
eight members of Category. II and six members of Category III
had been identified (Tr. 32, 56, Hearing, October 13, 1983;
Tr. 6-9, Hearing, July 5, 1984). In proposed stipulations,
she listed seven in Category II and six in Category III (UMW
letter to Peabody counsel, dated October 3, 1983). Having
fixed the class membership at such a small number of people
who are readily identifiable, she has demonstrated the practicability of joinder and the lack of need for a class
action.
Since Mr. Rowe must be stricken as a representative,
and since the union itself does not qualify and finally
because the purported class has not been shown to satisfy
the requirements of Rule 23, the complaint in KENT 82-103-D
must be dismissed. No class action is allowed. Because the
case does not qualify as a class action and because the individuals mentioned by union counsel were never joined although it was possible to do so, they are not before me and
cannot be granted relief. The claims of the individually
named Category II complainants survive in the other docket
numbers.

1644

Discrimination and Right to Training in Lay Off Situation
Section 115 quoted supra, establishes the right of mine
employees to receive basic safety training and the obligation of the operator to provide that training for them.
Those classified as new miners are to receive 40 hours of
training prior to underground assignment or 24 hours before
surf ace assignment. The training is designed to cover the
primary hazards of each and is to be as mine-related as
possible. Operators are required to provide miners with at
least 8 hours of refresher training once every 12 months and
to provide miners with training in specific safety and
health aspects of the work they are assigned.
The legislative history makes clear that the financial
responsibility and economic burden of providing training are
placed solely upon the operator and not upon the individual
miner or the government. The Senate Report unequivocally
states in this respect as follows:
It is not the Committee's contemplation that
the Secretary be in the business of training
miners. This is clearly the responsibility
of the operator, as long as such training
meets the Act's minimum requirements. S.REP.
NO. 95-181, 95th Cong., 1st Sess. SO (1977),
reprinted in LEGISLATIVE HISTORY OF THE
FEDERAL MINE SAFETY AND HEALTH ACT OF 1977,
95th Cong., 2nd Sess., at 638 (1978) hereinafter referred to as "Leg. Hist.").
The discussion surrounding s. 717 (the Senate version
of the 1977 Act) further demonstrates that the operators
were expected to assume the costs associated with the training requirements.
MR. WILLIAMS. There are certain aspects of
the cost that will arise from this legislation that we feel can be quite precisely estimated. There is, at long last, a clear
precise demand for training of new employees
coming to work in the mines. This· has been
one of the great failures, as I see it, in
the preparation of workers for their jobs in
a very hazardous industry, preparation that
will contribute to a safer work place. We do
have a clear demand for training-- - as a matter of fact, 40 hours for new underground
miners, 24 hours for surface miners, and 8
hours of annual retraining for experienceq
miners. This is one of the large figures
that went into the total estimate of new cost
to industry.

1645

We estimated it this way: With training at $75 a day, for the annual retraining
of 478,000 miners for 1 day, that multiplies
out to $35,875,000.
I mentioned the new surface miners. There
is a demand that they be trained. The training
of 15,000 new surface miners at 3 days will total $3.375 million.
Training 10,000 new underground miners
this is the 40-hour training provision. That
is 5 days.
It comes to $3.750 million. The
total for this training will be $43 million.
123 CONG. REC. S. 10219 (daily ed. June 20, 1977).
The legislative history of section 105(c) shows that
the anti-discrimination provisions apply to the training
provisions. The Senate Report states in this respect:
The Committee also intends to cover within
the ambit of this protection any discrimination against a miner which is the result of
the safety training provisions of section
* * * [115] or the enforcement of those provisions under section* * * [104(g)]. Leg.
Hist. at 624.
The Act and the legislative history do not specifically
address the situation of the laid off miner. The operator's
position is, therefore, plain and simple.
Its responsibility for training under the policy in effect at the pertinent time ran only to those individuals who were actually
performing work for it. The operator asserts that it had
the right to hire (or rehire) individuals who had the requisite training over those who did not. The union and the
Secretary argue, however, that based upon certain rights
accorded laid off miners under the National Bituminous Coal
Wage Agreement of 1981, those who would have been recalled
but were instead bypassed because they did not have the
training required by the Act and regulations, fall within
the scope of sections 115 and 105(c).
As set forth above, Article XVII(d) of the Agreement
establishes recall panels for laid off miners from which.
they are to be returned to employment on the basis of seniority.
"Seniority" is defined in section (a) of Article
XVII as length of service and the ability to step into and
perform the work of the job at the time the job is awarded.
In addition, section (f) of Article XVII provides that employees on layoff status continue to accrue seniority while

1646

they are on the recall panel. Section (c) of Article XIV
includes periods of layoff as part of one's continuous
employment with a particular employer.
I adhere to the view that it is not the principal pro- .
vince of the Administrative Law Judges of this Conimission to
interpret provisions of the collective bargaining agreement.
However, I also believe that the status and rights of individuals under the Mine Safety Act must not be viewed in a
vacuum when to do so would stand the Act on its head by
perversely transforming its protections into unforeseen and
crippling liabilities.
The three named complainants in KENT 82-105-Di KENT 82106-D, and LAKE 83-69-D were reached on recall panels for
jobs to which they.were entitled and which they would have
been given but for the training requirements of the Act and
regulations. As appears from the legislative history quoted
supra, because of the hazardous nature of mining which over
the years had caused a series of appalling disasters, Congress enacted the training provisions of section 115 to
protect miners by making sure that operators adequately
trained them. However, under Peabody's policy which is at
issue here, the effect of the training requirements on laid
off miners would not be to help and protect but rather to
hurt and harm.
The record in the instant cases contains several
decisions rendered by arbitrators in grievance proceedings
brought under the 1981 Agreement by laid off miners who had
been denied jobs because they lacked the required Federal
training. The arbitrators denied the grievances, reasoning
that the complaining miners did not have the ability to step
in and perform the jobs as required by the 1981 Agreement
because they were not adequately trained in accordance with
the Mine Act. In response to the miners• assertion that
under the Act the operator should have provided the training, the arbitrators held that it was not up to them to
interpret the Federal law. Thus, the very.training provisions designed to protect miners became the reason for their
continued unemployment under the collective bargaining agreement. If in interpreting the Mine Act, I now were to
ignore the status and rights given laid off miners under the
collective bargaining agreement, they would end up in a
legal "no-man's-land" between the two. I will not adopt
such an unfair and unrealistic approach.
Accordingly, I conclude that in interpreting the Act in
these cases, account must be taken of the provisions of the
collective bargaining agreement insofar as they affect the

status of laid off miners. As set forth above, the collective bargaining agreement gives the laid off miner several
very important rights, including placement on a recall panel, the right to opt for certain jobs, and the right to invoke the grievance procedure. Also, accrual of seniority
continues as does continuous employment with one employer.
I have considered arbitration decisions which are in conflict .over whether the employment relationship continues or
is severed in the lay off situation.
I do not find them
particularly useful or instructive and in any event, I
believe that the instant cases should be decided in light of
the purposes and goals of the Mine Act.
I conclude that the
laid off miner is certainly in a position far different and
more advantageous than just anyone seeking employment in the
mines. Moreover, some of the laid off miners' rights such
as accrual of seniority and computation of continuous employment with one employer go beyond giving-preference in
applying for a job. The laid off miner clearly is more than
just a preferred job applicant.
I conclude that the rights
accorded a laid off miner under the collective bargaining
agreement contain indicia of an ongoing employment relationship sufficient for him to be considered a miner within the
purview of sections 115 and 105(c) of the Act.
I have not
overlooked the definition of "miner" in section 3(g) of the
Act.
In view of the pertinent provisions of the collective
bargaining agreement and the overriding purposes of the
training provisions of the Act, I conclude that for present
purposes, the laid off miner must be considered an individual working in a coal mine. That is where he would be if
not for an interruption caused through no fault of his own.
I have, of course, considered the decision of the Commission in Secretary of Labor v. Emery Mining Corporation,
5 FMSHRC 1391 (1983) which has been discussed· and analyzed
at length by the parties. That decision which the Commission itself confined to the facts presented, is distinguishable from these cases because it involved miners who
were "strangers" in that they had no previous relationship
with the industry or the employer.
To the extent that the conclusions expressed herein may
be inconsistent with the Judge's decision in United Mine
Workers of America, etc. v. Peabody Coal· Company, 4 FMSHRC
1338 (1982) , I decline to follow it.
Accordingly, I conclude that the operator ·discriminated
against the named Complainants in KENT 82-105-D, KENT 82106-D, a~d LAKE 83-69-D, by violating their statutory rights
regarding training. These Complainants must now be given
the jobs they originally would have been given (or comparable jobs) and must be awarded appropriate damages.

1648

In LAKE 82-69-D, the Secretary declined to file a
motion for temporary reinstatement on behalf of Mr. Williams. In light of the finding for Mr. Williams on the
merits, this issue now becomes moot; but as the analysis
already set forth makes clear, the Secretary should have
sought temporary reinstatement and erred in not doing so.
As set forth above in the discussion regarding class
actions, no valid complaint has been made out with respect
to Category III Complainants. However, in order that this
matter be as comprehensively handled as possible for the
benefit of the Commission, I deem it appropriate to express
my views on the merits regarding Category III. Category III
like Category II is composed of laid off individuals. There
is, however, a difference which is crucial for present purposes. The Category II people have been reached on the recall panel and the Category III people have not. The rights
given under the collective bargaining agreement and the Act
regarding rehiring and training actually exist with respect
to Category II, but are merely inchoate for Category III.
As set forth herein, the right to a job cannot be denied for
a lack of training, but the right to a job itself is predicated upon being reached on the recall panel. If there is
no right to a job, there is no right to training. Whether
an individual will be reached on a recall panel depends upon
a multiplicity of unpredictable factors, including the state
of the coal industry and the well-being of the entire economy. Indeed, an individual may never be reached. Under the
circumstances, the right to training which depends on being
recalled is too speculative to be allowed for Category III
individuals. Finally, since, as held herein, Category II
persons are entitled to training, those in Category III are
not in any way jeopardized since they will be entitled to
the jobs and any necessary training when they are reached on
the recall panel.
ORDER
It is Ordered that the complaint in KENT 82-103-D be
Dismissed.
It is further Ordered that the complaints of discrimination in KENT 82-105-D, KENT 82-106-D, and LAKE 83-69-D be
Allowed.
It is further Ordered that the operator place the named
Complainants in KENT 82-105-D, KENT 82-106-D, and LAKE 8369-D in the jobs they would have been given if they had not
been bypassed, or in comparable jobs, together with all
necessary training.

1643

It is further Ordered that on or before July 23, 1984,
the parties submit a statement setting forth the amounts of
agreed upon monetary relief for each of the named Complainants.
It is further Ordered that if agreement is not reached
on monetary relief, the parties appear before me at 10:00
a.m., July 24, 1984, at 1730 K Street, N.W., Washington, DC
20006.
Finally, it is Ordered that on or before July 23, 1984,
the Solicitor file petitions for the assessment of civil
penalties in KENT 82-105-D, KENT 82-106-D, and LAKE 83-69-D.

Paul Merlin
Chief Administrative Law Judge
Distribution:
Michael o. McKown, Esq., P.O. Box 235, St. Louis, MO
(Certified Mail)

63166

Mary Lu Jordan, Esq., United Mine Workers of America, 900
15th Street, N.W., Washington, DC 20005
(Certified Mail}
Frederick w. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail}
/nw

1650

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

. 1;,-ff'f.'P
UL

11_,_ 198"Alf

JAMES L. DOWDELL;
Complainant
v.

DISCRIMINATION PROCEEDING

CONSOLIDATION COAL COMPANY,
Respondent

MSHA Case No. VINC CD 83-11

Docket No. LAKE 83-96-D

DECISION
Appearances:

James L. Dowdell, Scio, Ohio, pro se;
Jerry Palmer, Esq., Consolidation Coal
Company, Pittsburgh, Pennsylvania, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns a discrimination complaint
filed by the complainant against the respondent pursuant to
section 105(c) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seq. The initial complaint was
filed with the Secretary of Labor, Mine Safety and Health
Administration CMSHA), on July 25, 1983. Following an investigation, MSHA advised the complainant by letter dated
August 24, 1983, that MSHA's investigation failed to disclose any violation on section 1051c).
Following receipt of MSHA's notification that it would
not pursue his claim further, the complainant filed his
pro se complaint with the Commission on September 9, 1983.
In response to further orders issued by the Commission's
chief judge, the complainant furnished additional statements
concerning his complaint, and these statements included allegations of discrimination on the part of five of respondent's
management employees.
Issue
The critical issue presented in this case is whether
Mr. Dowdell's discharge was in any way prompted by his engaging in any protected activity under section lOSCc) of the
Act, or whether it resulted from a violation of company
policy against fighting on mine property, as claimed by the
respondent.

1651

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
30 u.s.c. § 301 et seg.
2. Sections 105Cc)(l), (2) and (3) of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. §§ 815(c)(l), (2)
and (3).
3.

Commission Rules, 29 C.F.R.

§

2700.1, et seg.

DISCUSSION
Complainant's Testimony and Evidence
James L. Dowdell, the complainant in this case, testified that until his discharge in June 1983, he was employed
by the respondent for approximately 12 years. At the time
of his discharge, he was employed as a shuttle car operator
at the Oak Park No. 7 Mine, and he earned the regular union
pay of $10 to $11 an hour. He stated that he has been
unemployed since his discharge, and that he has received
unemployment benefits from the State of Ohio (Tr. 6-9).
Mr. Dowdell asserted that there was consumption of beer
and alcohol in the underground mine, as well as fighting
among miners, and that mine superintendent Matkovich would
do nothing about it. With regard to his fight with
Mr. Thompson, Mr. Dowdell stated that it took place off mine
property on State Road 9 and that Mr. Thompsom pulled a
knife.· Mr. Dowdell stated that the police were not called
and that Mr. Thompson "got skinned up a little bit" (Tr.
14).

Mr. Dowdell admitted that he was wrong in fighting, but
he insisted that the fight did not violate company rules
because it took place off mine property. He asserted that
he cannot read and write, and that at the time of his discharge, he had learned that he and other miner's were being
laid off. He went to the mine to retrieve some clothing,
and when he arrived he asserted that Mr. Thompson "started
hollering and calling me all kinds of names and stuff, and
pulled a knife on me" (Tr. 15).
Mr. Dowdell confirmed that his discharge was arbitrated
under the union-management contract (Tr. 16-18). He was
discharged for fighting with Mr. Thompson, and they were not
drinking (Tr. 19). Mr. Dowdell alluded to several prior
fights between other miners which he claimed occurred "a few
years back," and one which occurred a month or two before

1652

his fight with Mr. Thomspon, and he claimed that no one was
disciplined for these fights (Tr. 21).
Mr. Dowdell alleged that miners were drinking beer on
the job and that nothing was done about it CTr. 27). When
.. asked why the safety committee was never apprised of the
alleged drinking and fighting, Mr. Dowdell' stated "most
union men that sees another fight don't just go out and tell
on_ another union man" CTr. 25), and "they're union men, the
safety men, and they see them fill it up, and see them drink
it. Now who am I going to report it to?" CTr. 29).
Mr. Dowdell asserted that he was assigned certain job
tasks which were not safe, .including the shoveling of coal
on the belt slope CTr. 32) and working in dust CTr. 32-36).
However, he conceded that after complaints were made about
the shoveling on the belt slope, and the dust, the matters
were resolved and the conditions were corrected (Tr. 37).
He also confirmed that when he complained, he was assigned
to other work CTr. 37).
Mr. Dowdell alluded to the fact that he was called into
the mine manager's office to discuss the matter of conversation over the mine phone, including the use of profanity
(Tr. 43-44). He claimed that mine foreman Sikora accused
him of speaking over the phones and that he threatened to
fire him over the matter CTr. 45-46). He also alluded to
the fact that shift foreman Cristini has also threatened to
fire him over the conversation on the mine phones (Tr. 47).
He also alluded to an incident concerning the removal of a
scoop from the mine, and Mr. Dowdell believed that the procedures· used by Mr. Cristini for removing the scoop were
unsafe CTr. 48-54). ·· Mr. Dowdell alluded to instances when
he was taken. off different job tasks. and assigned to others,
and while he believed that this was 'improper, he never filed
any grievances (Tr. 69).
On cross-examination, Mr. Dowdell confirmed that he
fought with Mr. Thompson and struck ·him in the face. However, he asserted that Mr. Thompson had a knife and that he
was simply defending himself, and that the fight took place
on State highway No. 9 (Tr. 72-76). Mr. Dowdell also mentioned some previous fights among miners which he claimed
took place underground, and he also claimed that he had complained about some bad brakes on a shuttle car. He claimed
that he complained to the safety committee about the brakes,
and as a result of his complaints, he was taken off the
shuttle car and someone else was assigned that task CTr. 78).
He also claimed that he had complained to a Federal inspector, and he confirmed that the brake calipers were repaired
and that no citations were issued CTr. 80-81).

1653

Ronald Taylor testified that he has been employed by
the respondent for approximately a year as an unskilled
laborer, and that he has been intermittently laid off from
time to time. ----~He was last called back to work on March 1,
_.1984. Mr. Taylor stated that he did not know what the present case was about other than the fact that the complainant
had a fight with Mr. Thompson. As for any fighting by other
miners and drinking on the job, Mr. Taylor stated that n1
wasn't working there at the time, you know, it's all
hearsay" (Tr. 82-87).
Mr. Taylor stated that the complainant did complain to
mine management about Mr. Thompson's insistance on using a
certain aisle in the wash house to reach his dressing area,
and that this is what precipitated the fight with the
complainant (Tr. 89). Mr. Taylor confirmed that he was not
at the mine when the fight took place (Tr. 90). Mr. Taylor
stated further that the complainant took the matter of
Mr. Thompson insisting on using an aisle where other miners
dressed to the safety committee because Mr. Thompson would
bump other miners with his clothes basket, and he (Taylor)
believed this was a safety issue. Mr. Taylor indicated that
he too complained to a member of the safety committee CTr.
94). The safety committee member spoke to mine management,
and the superintendent and shift foreman spoke to Mr. Thompson
about the matter (Tr. 95).
Mr. Taylor stated that he has personally never observed
any miners fighting, and that he never observed any miners
drinking on the job, nor has he ever heard of anyone having
liquor- in· the mine (Tr. 96). Moreover·, he knows of other
miners, including himself, who drank beer on the parking lot
and in the wash house after their shift was over, and thatthese areas were on company property' (Tr. 96-97).
Mr. Taylor alluded to an encounter-at the mine between
Mr. Dowdell and one Ray Tubble. He _indicated that it started
as "a joke" with the two pushing each other, and Mr. Tubble
got mad and upset when his belt was broken, and Mr. Dowdell
offered to buy him a new one (Tr. 96, 99). He also alluded
to nhearsayn of a fight between Mr. Tubble and one Tank
Stall, but he did not witness the alleged incident (Tr. 101).
Mr. Taylor also alluded to an asserted nproblemn about
shovelling coal on the slope. Moreover, he indicated that
the matter was resolved between mine management and the
safety committee. Mr. Taylor indicated that Federal inspectors come to the mine, and after it was determined where it
was safe to shovel, the matter was mutually resolved.
Mr. Taylor also stated that he was never required to shovel

1654

where he believed it was unsafe, and he could not recall
whether Mr. Dowdell was part of the crew which complained
about the shovelling on the slope (Tr. 106). He also indicated that he was never assigned to shovel on the slope as
"punishment," '·and he conceded that this was part of his job
(Tr. 107).
Mr. Taylor indicated that he had no knowledge about
Mr .. Dowdell being assigned to shovel on the slope after the
other crew which complained was taken off that job CTr. 107).
On cross-examination, Mr. Taylor stated that he did not
know whether Mr. Dowdell or Mr. Thompson complained to mine
management about their fight, nor did he know whether
Mr. Stall or Mr. Tubble informed management about their
alleged fight CTr. 109).
Ronald Stall testified that he never engaged in any
fights in the mine with Ray Tubble. He "has heard" about
fights, including an alleged incident in 1970 involving a
foreman, but ~r. Stall was not at the mine at that time (Tr.
130). He also alluded to an incident which he characterized
as "horseplay," but could furnish no other details (Tr.
121).
When asked if he knew what this case was about,
Mr. Stall responded "Well, he got fired. That's all I know.
I know he's got a discrimination case--some kind" (Tr. 122).
Mr. Stall confirmed that he was not at the mine when
Mr. Dowdell and Mr. Thompson got into a fight CTr. 125).
Dan Hoffman testified that he has been employed at the
mine for approximately 14 years as a mechanic. He could not
recall Mr. Dowdell being taken off his regular job as a
shuttle car operator and being assigned to laborer's work,
and while he "has heard" about fights in the mine, he had no
personal knowledge about any of them (Tr. 132).
Although he alluded to an alleged bad brake condition
on a shuttle car, Mr. Hoffman had no recollection of anything specific (Tr. 134). Further, while he "has heard"
about the fight between Mr. Dowdell and Mr. Thompson,
Mr. Hoffman was not at the mine when the incident occurred,
and he had no personal knowledge about the matter (Tr. 134).
When asked about his understanding of Mr. Dowdell's complaint in this case, Mr. Hoffman stated that "my understanding is that the fight didn't happen on company property-that's the only thing I've heard. I don't really know" (Tr.
134).
.

1655

George Armstrong testified that he is employed by the
respondent as a continuous-miner operator. He stated that
he had no knowledge of any trouble between Mr. Dowdell and
Mr. Thompson other than "walking through the aisle" in the
wash house. Mr. Armstrong also stated that he has . never
.. observed any fights at -the mine (Tr. 137), and he confirmed
that he did not witness the fight between Mr. Dowdell and
Mr. Thompson CTr. 143).
Respondent's Testimony and Evidence
Joe Matkovich mine superintendent, testified that he
hired Mr. Dowdell sometime in 1981 or 1982. He confirmed
that he considered his complaints concerning Mr. Thompson·
and other miners in the bathhouse. One complaint concerned
Mr. Thompson's insistance on using a certain aisle to walk
to his dressing locker, and the other complaint concerned a·
complaint by Mr. Thompson that men were throwing pop cans at·
him in the bathhouse (Tr. 177-182).
Mr. Matkovich stated that he first learned about the
fight between Mr. Dowdell and Mr. ~hompson when he received
a telephone call at his home from acting shift foreman Don
Vanscay on the evening of June 23, 1984. Mr. Vanscay
advised him that the fight took place in the bathhouse. The
mine had officially gone on lay-off status that evening, and
during the next few days while the mine was idle Mr. Matkovich
conducted an inquiry to ascertain the facts surrounding the
fight (Tr. 18 3) •
Mr. Matkovich stated that his inquiry into the fight
.established that Mr. Dowdell struck Mr. Thompson in the mouth
as he got out of his car in the area by the back doors of the
bathhouse. As Mr. Thompson stumbled through the bathhouse ·
doors, Mr. Dowdell kicked him in the rear. Mr. Dowdell claim
that the fight took place on the State Highway road No. 9,
after Mr. Dowdell confronted Mr. Thompson and invited him
there. Mr. Dowdell claimed that Mr. Thompson drew a knife,
and that he kicked it out of Mr. Thompson's hand and punches
were exchanged. Mr. Matkovich stated that a search was
conducted by five or six foremen and a represenative of the
company's industrial relations office, but that no knife was
found (Tr. 183-185) •.
Mr. Matkovich confirmed that he made the decision to
discharge Mr. Dowdell for violating company policy against
fighting, and he identified Exhibit R-1, as a copy of the
discharge letter given to Mr. Dowdell. The letter should
have been dated July 8, 1983, and the June date is simply a
typographical error (Tr. 188). Mr. Matkovich also identified Exhibit R-2, as a copy of the company employee conduct·

1656

rules which are posted at the mine and which served as the
basis for the discharge (Tr. 191).
Mr. Matkovich confirmed that at no time during his
inquiry into the fighting incident did anyone ever.mention
. any safety activities engaged in by Mr. Dowdell. He also
confirmed that Mr. Dowdell appealed his discharge through
the regular union-management contract, and after a hearing
before an arbitrator, the discharge was sustained (Tr. 192,
Exhibit R-3).
Mr. Matkovich stated that he has investigated past complaints of employees fighting at the mine, and in one
instance his discharge of an employee in late 1981 or early
1982 was upheld after it went to arbitration (Tr. 194). As
for drinking on the job, Mr. Matkovich stated that he was
not aware of any drinking on mine property and that no one
ever made any complaints to him about such conduct (Tr. 196).
Mr. Matkovich also indicated that he had no knowledge that
Mr. Dowdell received unemployment compensation after his
discharge (Tr. 196).
Mr. Matkovich confirmed that he had received a complaint
in August 1982, from some miners about shovelling coal on the
slope belt. Miner Karen Overheart had reportedly been hit on
her hard hat by a lump of coal, and the miners complained
that shoveling on the slope belt was unsafe. As a result of
this complaint, the safety committee and Federal inspectors
visited the belt area and certain belt areas were designated
as areas where shovelling could be done while the belt was
idle or on a weekend (Tr. 197-199). Mr. Matkovich·could not
recall· whether Mr. Dowdell was among the group of miner's who
complained (Tr. 200). He confirmed that prior to his discharge, he had never had any problems with Mr. Dowdell concerning safety or his work (Tr. 208)~
Carl Kelly testified that he is employed by the
respondent as a rock duster, and th~t on June 23, 1983, he
worked at the mine during the 4:00 p.m. to 12:00 afternoon
shift. He stated that while in the bathhouse at the end of
his shift he heard some commotion at the back door and as he
turned around he saw Mr. Thompson on his hands and knees
inside the bathhouse. He observed Mr. Dowdell "more or less
hollering at Fred," and saw Mr. Dowdell kick Mr. Thompson in
the rear as he was getting up. He later observed them talking to each other, and he then left the area <Tr. 210-2121
214-218). Mr. Kelly confirmed that he testified at the arbitration in Mr. Dowdell' case (Tr. 213).
Frederick c. Thompson testified that he reported for
work on June 23, 1983, and as he got out of his car and

started for the bathhouse, Mr. Dowdell attacked him and
struck him in the face. Mr. Thompson stated that he did not
strike back because he had his dinner bucket and thermos in
one hand and his car keys in the other. Prior to striking
him, Mr. Dowdell told him that a member of the mine safety
. committee had informed -him that he (Dowdell) was responsible
for harassing Mr. Thompson (Tr. 223).
·
_ Mr. Thompson stated that after he was struck by
Mr. Dowdell, he went down and someone kicked him from the
rear, but that he did not see who did it (Tr. 224). He then
entered the bathhouse and went to the shift foreman's room
to tell him what happened (Tr. 225). Mr. Thompson denied
that he was ever on the bathhouse floor, and he denied that
he had a knife with him or that he ever pulled a knife on
Mr. Dowdell (Tr. 225).
Mr. Thompson stated that he was later interviewed by
the mine superintendent and told him what had happened, and
· that he also testified at the arbitration hearing in
Mr. Dowdell's case. He also indicated that as a result of
being struck by Mr. Dowdell, his lip and denture plate were
broken (Tr. 226).
Mr. Thompson stated that Mr. Dowdell had never hit him
with a clothes basket, push him out of the way as he made
his way down the aisle of the bathhouse, nor did he ever
throw pop cans at him. He also confirmed that he had never
had any trouble with Mr. Dowdell in the bathhouse and he
stated that "I don't know how this all came about" (Tr. 237).
Mr. Thompson stated that he did not seek to prosecute
Mr. Dowdell, and that he has not seen him since his arbitration case (Tr. 242).
James J. Cristini, shift foreman, testified that he
worked the afternoon shift at the mine on June 23, 1983. He
confirmed that he has known Mr. Dowdell . since 1972, and met
him at another mine operated by the .respondent, but he never
directly supervised him. He has supervised him from timeto-time at the Oak Park No. 7 Mine (Tr. 249).
Mr. Cristini confirmed that Mr. Dowdell and two other
miner's helped him load and remove a scoop from the mine so
that it could be repaired. Mr. Cristini stated that proper
procedures were followed in taking out the scoop and
Mr. Dowdell said nothing about these procedures (Tr. 253).
Mra Cristini stated that on June 23, 1983, he heard
Mr. Dowdell comment that "if Fred (Thompson) shows up, I'll
get him" (Tr. 256). A few minutes later Mr. Thompson and
Mr. Dowdell came to his office, and Mr. Thompson's shirt was

1658

torn and "his lip was busted." He stated that Mr. Dowdell
had "sucker-punched him out in the parking lot." Mr. Cristini
stated that he gave a statement to mine management concerning
his knowledge of the incident, but that he did not participate
in the investigation (Tr. 257).
Mr. Cristini denied that he ever threatened to fire
Mr. Dowdell because of his alleged derogatory comments about
him over the mine phone CTr. 266). He also confirmed that
the incident concerning the phone occurred in 1980 (Tr. 267).
He denied that he ever asked Mr. Dowdell to do anything
which was unsafe or that he ever had any problems with
Mr. Dowdell other than the phone incident (Tr. 272).
Jerry L. Truschel, section foreman, confirmed that
Mr. Dowdell worked under his supervision as a shuttle car
operator shortly before his discharge, but that he was not
on his crew at the time he was discharged. He could not
recall Mr. Dowdell ever complaining about the brakes on the
shuttle car, or ever refusing to operate a car. Mr. Truschel
confirmed that due to absenteeism on one day, Mr. Dowdell was
re-assigned to operate a scoop and a cleanup man was assigned
to operate the shuttle car (Tr. 277).
Mr. Truschel was at the mine on June 23, 1983, and
Mr. Thompson walked into the foreman's office. His mouth
was bloody, his shirt was torn, and his arms were scraped.
He stated that Mr. Dowdell struck him when he got out of his
car on the parking lot. Mr. Dowdell then came into the
office and stated that he struck Mr. Thompson, but insisted
that the incident occurred on the highway and not on mine.
property CTr. 278). Mr. Truschel stated that he did not
participate in the investigation of the incident (Tr. 279).
Mr. Truschel denied that Mr. Dowdell ever advised him
that a reel cage was falling off his shuttle car and cutting
eight or nine cables a day (Tr. 280). He also denied that
he told Mr. Dowdell to operate his shuttle car with no
brakes (Tr. 283).
·
Thomas A. Sikora, mine foreman, testified that
Mr. Dowdell worked for him for a short while for 2 or
3 months when an old section of the· mine was being readied
for active production. He never had any problems with
Mr. Dowdell, and Mr. Dowdell never made any safety complaints to him (Tr. 285).
Mr. Sikora did confirm that he spoke to Mr. Dowdell
about his talking over the mine phone, but that he never
disciplined him about the matter and simply had an informal
talk with him (Tr. 286).

1653

With regard to the matter concerning shovelling on the
slope belt, Mr. Sikora stated that the matter came up 2 years
ago, and that after meeting with the miner's who believed
·
that shovelling in certain areas was unsafe, the matter was
.resolved by the implementation of safe working instructions
for the belt ~reas in question (Tr. 288). Mr. Sikora denied
that he ever assigned Mr. Dowdell to shovel under unsupported
roof or in any areas marked unsafe (Tr. 289).
Mr. Sikora confirmed that he participated in the management inquiry concerning the fight between Mr. Dowdell and
Mr. Thompson. At no time was the matter of Mr. Dowdell making safety complaints ever mentioned (Tr. 289). The decision was made to discharge Mr. Dowdell for striking
Mr. Thompson on mine property (Tr. 290).
Mr. Sikora had no knowledge of any prior fighting at
the mine, and he denied any knowledge of Mr. Dowdell
shovelling by himself on the slope belt for 6 months (Tr.
291). He indicated that no one was ever assigned to that
belt for 6 months (Tr. 292).
Mr. Sikor.a denied ever stating that he was going to
fire Mr. Dowdell, and he indicated that he did not participate in the decision to discharge Mr. Dowdell for fighting
(Tr. 295) •
Findings and Conclusions
For the sake of clarity, and in order to insure that
the Commission's task of review is not needlessly complicated in the event this case is appealed, and in keeping
with the Commission's admonition as stated in a recent
opinion in Roger E. Sammons v. Mine Services Co., SE 82-15-D,
June ~' 1984, I feel it advisable to reiterate the basic
analytical precedent guidelines established by the Commission
in the area of discrimination law, a~d these guidelines
follow below.
In order to establish a prima facie case of discrimination under section 105(c) of the Mine Act, a complaining
miner bears the burden of production and proof to establish
(1) that he engaged in protected activity and (2) that the
adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Pasula v.
Consolidation Coal Co. v. Marshall, 2 FMSHRC 2786, 2799-2800
(October 1980), rev'd on other grounds sub .!!2!!!• Consolidation
Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981>1 and
Secretary on behalf of Robinette v. United Castle Coal Co.,
3 FMSHRC 803, 817-18 (April 1981). The operator may rebut

lSGO

the prima facie case by showing either that no protected
activity occurred or that the adverse action was in no way
motivated by protected activity. If an operator cannot rebut
the prima facie case in this matter it may nevertheless affirmatively defend by proving that Cl> it was also motivated by
-the miner's unprotected· activities, and (2) it would have
taken the adverse action in any event for the unprotected
activities alone. · The operator bears the burden of proof
with regard to the affirmative defense. !!!!2, v. Maga Copper
Co., 4 FMSHRC 1935, 1937 (November 1982). The ultimate
burden of persuasion does not shift from the complainant.
Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC,
719 F.2d 194 C6th Cir. 1983>; and Donovan""V. Stafford constr.
co., Nos. 83-1566, D.C. Cir. (April 20, 1984) (specifically
approving the Commission's Pasula-Robinette test). The
Supreme Court has approved the National Labor Relations
Board's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act. NLRB v.
Transportation Management Corp.,~- U.S.~-' 76 L.Ed. 2d
'
667 (1983).
The parties were afforded an ·opportunity to file posthearing arguments in support of their respective positions.
Mr. Dowdell filed a one-page letter in which he reiterates
the assertion that Mr. Thompson was armed with a knife at
the time of their encounter. He also alluded to the fact
that miners had been known to drink on mine property. While
I may sympathize with the fact that Mr. Dowdell brought this
action_ prose, and do not dispute the fact that he may not
be totally literate, his arguments simply do not constitute
a case of discrimination under the Act.
Respondent's arguments, filed by its legal counsel,
conclude that Mr. Dowdell's conduct was not protected activity, that he was not the victim of disparate treatment, that
great weight should be given to the arbitrator's determina•
tion that his discharage for fighting was appropriate, and
that he simply has not made out a pr.ima facie case of
discrimination.
On the facts presented in this proceeding, there is no
credible evidence to suggest or support any theory that
Mr. Dowdell's discharge was in any way connected with any.
protected safety activities on his part. There is no evidence of any protected work refusals or retaliation for those
asserted activities, nor is there any evidence that
Mr. Dowdell made any safety complaints to mine management or
to MSHA or to state mining officials concerning safety
matters peculiar to his particular working environment, or
that mine management retaliated against him by discharging
him. The thrust of his complaint is that his discharge was

1661

arbitrary in that Mr. Thompson was the aggressor and was
armed with a knife during their fight. Mr. Dowdell obviously
believes he was.treated unfairly by the respondent when he
was discharged, and the basis for this conclusion is his
assertion that-~he was simply defending himself and that the
fight t;ook place of.f mine property.
After careful review of all of the evidence and testimony adduced in this case, the respondent has established by
a preponderance of the evidence and testimony adduced at the
hearing, including the testimony of witnesses called by
Mr. Dowdell, that Mr. Dowdell's attack on Mr. •rhompson was
unprovoked, that Mr. Thompson was not armed with a knife,
and that the fight did in fact take place on mine property.
Given the fact that fighting was a dischargeable offense
under the respondent's rules of conduct, I cannot conclude
that the respondent acted arbitarily when it discharged
Mr. Dowdell.
Although one may sympathize with Mr. Dowdell
for losing his job after years of satisfactory service with
the respondent, absent any showing of a connection with
protected safety activities under the Act, I believe that
employee disciplne should be best ·left to the respondent.
In this case, Mr. Dowdell availed himself of all of the
rights afforded him under the applicable labor-management
contract and grievance procedures, and the decision to
discharge him was solely within the discretion of mine
management.
With regard to the question of disparate treatment,
after careful review of the record here, I cannot conclude
that Mr. Dowdell has established that he was treated differently from other employees who may have been similarly situated. Although given a full opportunity to present and
develop his case, even over the objections of respondent's
counsel that I somehow was acting as' his advocate, Mr. Dowdell
was unable to substantiate his charges in this regard. All of
the witnesses called on his behalf, while apearing to me to be
honest and straightforward, still cquld not substantiate his
charges. Their accounts of past fights between miners' on mine
property were lacking in credibility and specific facts, and
were so far removed in time from the. time of Mr. Dowdell's
encounter with Mr. Thompson and his discharge as to render any
sinister motive for the discharge as totaly· lacking in
credibility.
With regard to Mr. Dowdell's charges of drinking on the
job by miners, as well as the implication by the testimony
of several witnesses that tempers were short and that miners
at times armed themselves with various weapons to protect
themselves from other miners, I can only conclude that these
alleged incidents .have not been shown to have any bearing on

Mr. Dowdell' s complaint. Further, if such allegations a·re
true, I believe they are best left to the managerial talents
of those individuals charged with the responsibility of
operating the mine. Since the mine has a safety committee,
and since it is regulated· by MSHA, I would expect that any
.. such complaints which may affect the safety of the work
force at the mine will and should be addressed by these
entities rather than a Commission Judge assuming the role of
a policeman.
Conclusion and Order

In view of the foregoing findings and concJusions, and
after careful consideration of all of the evidence and
testimony adduced in this case, I conclude and find that the
complainant has failed to establish a prima f acie case of
discrimination on the part of the respondent. Accordingly,
the complaint IS DISMISSED, and the Complainant's claims for
relief ARE DENIED.

~~f.ti~
Admi~~rative Law Judge

·

Distribution:
Mr. James L. Dowdell, 41240 New Rumbley Road 2, Scio, OH
43988 (Certified Mail)
Robert M. Vukas, Esq., Consolidation Coal Company, 1800
Washington Road, Pittsburgh, PA 15241 (Certified Mail)
/fb

1663

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

JUL 11 1984

CIVIL PENALTY PROCEEDINGS

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

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

.
..
.
..
..
:

Docket No. PENN 83-121
A.C. No. 36-00970-03516
Docket No. PENN 83-128
A.C. No. 36-00970-03517
Docket No. PENN 83-136
A.C. No. 36-00970-03519
Maple Creek No. 1 Mine
Docket No. PENN 83-129
A.C. No. 36-03425-03522
Docket No. PENN 83-137
A.C. No. 36-03425-03524
Maple Creek No. 2 Mine

DECISIONS
Appearances:

Janine c. Gismondi, Esq., Office of the Solicitor,
U.S. Department of Labor, Philadelphia, Pennsylvania,
for Petitioner;
Louise Q. Symons, Esq., u.s. Steel Mining Company,
Pittsburgh, Pennsylvania, for Respondent.

Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed by
the petitioner against the respondent pursuant to section llO(a)
of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(a), seeking civil penalty assessments for 12 alleged violations of certain mandatory safety standards promulgated pursuant
to the Act.•
Respondent contested the proposed civil penalties, and
pursuant to notice duly served on the parties, hearings were
held in Uniontown, Pennsylvania. The petitioner filed posthearing briefs, and the arguments and proposed findings and
conclusions recited therein have been considered by me in
the course of these decisi~ns. Respondent opted not to filP
any briefs.

Issues
The principal issue presented in these proceedings are
(1) whether respondent has violated the provisions of the Act
and implementing regulations as alleged in .the proposal for
assessment ·of .civil penalty filed, and, if so, (2) the
appropriate civil penalty that should be assessed against the
respondent for the alleged violations based upon the criteria
set forth in section llO(i) of the Act. Additional issues
raised are identified and disposed of where appropriate in
the course of these decisions. Included among these issues is
the question as to whether the cited violations were "significant
and substantial."
In determining the amount of a civil penalty assessment,
section llO(i) of the Act requires consideration of the
following criteria: (1) the operator's history of previous
violations, (2) the appropriateness of such penalty to the
. size of the business of the operator, (3) whether the operator
was negligent, (4) the effect on t~e operator's ability to
continue in business, (5) the gravity of the violation, and
(6) the demonstrated good faith of the operator in attempting
to achieve rapid compliance after notification of the violations.
Applicable Statutory and Regulatory Provisions
1.
The Federal Mine Safety and Health Act of 1977J
Pub. L.95-164, 30 u.s.c. §801 et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c. S820(i).

3.

Commission Rules, 29 C.F.R. S2700.l et se~.

Stipulations
The parties stipulated that the respondent owns and
operates the Maple Creek No. l. and No. 2 Mines, and that the
respondent and the mines are subject to the Act and to the
jurisdiction of the Commission and the presiding judge.
The parties also stipulated that the respondent is a
large mine operator and that the proposed civil penalty
assessments will not adversely affect the respondent's ability
to continue in business (Tr. 5).

lGG~

Findings and Conclusions
Docket No. PENN 83-121
This case .concerns two section 104(a) "S&S" citations
issued by MSHA Inspector Francis E. Wehr on. December 15-, 1982,
and January·l2, 1983. The first citation, No. 2102682, asserts
that 73 roof bolts.were installed in the roof at two overcasts
which had been shot down, but that no washers were provided
between the 6x6 inch bearing plate and the 6-foot conventional
roof bolt. The inspector believed that this was a violation
of the roof control plan and mandatory safety standard 30 CFR
75.200.
The second citation, No. 2102696, asserts that a crosscut
used as a shelter hole 'for the track haulage was obstructed
with three SS-gallon oil drums and 22 stacked bags of rock
dust. The inspector believed that a person would have trouble
getting into the crosscut for shelter upon the approach of
any haulage equipment, and he cited a violation of mandatory
safety standard 30.CFR 75.1403.
During the course of the hearing, petitioner's counsel
advised me that after further consultation with the inspector,
citation No. 2102682 cannot be supported, and that the citation
will be vacated (Tr. 6). Petitioner's counsel presented a
full and complete argument in support of this action (Tr.
504-505).
With regard to citation No. 2102696, petitioner's
counsel stated that upon further reflection, the inspector
was now of the view that the violation was not "significant
and substantial," and that he has agreed to delete that
finding from the violation notice as originally issued.
Petitioner's counsel presented a full argument in support of
this proposed action by the inspector (Tr. 506-511).
Respondent's counsel asserted that the crosscut being
used as a shelter hole was 17-feet wide and that there was
room for persons to manuever in and out. Counsel pointed
out that the only person in that area is a switchman, and
that the chances that he will have to use the shelter are
very slim (Tr. 508). Petitioner's counsel agreed that there
was room enough for persons to manuever between the stated
obstructions, and that is the reason why she believes the
violation is not "significant and substantial" (Tr. 509) •

After careful consideration of the argument presented,
I affirm the inspector's vacation of citation No. 2102682, and
that portion of the petitioner's civil penalty proposal seeking
a penalty assessment for this citation IS DISMISSED, and
the citation IS VACATED.
With regard to citation· 2102696, I take note of the
fact that the.citation cites a violation of section 75.1403,
which provides as follows:
Other safeguards adequate, in the judgment of
an authorized representative of the Secretary, to
minimize hazards with respect to transportation of
men and materials shall be provided.
Inspector Wehr cited a previous safeguard notice, No.
391170, issued by Inspector Eugene w. Beck on March 1, 1979,
to support the citation which he issued. The previous safeguard notice required that all shelter holes and crosscuts
used as shelter holes be kept clean of loose coal, rock,
supplies, and debris.
On the facts of this case, the respondent has not
rebutted the fact that the crosscut in question was used as
a shelter. Further, the respondent concedes that the obstructions as stated by the inspector on the face of his citation
were in fact present. Accordingly, I conclude and find that
the petitioner has established the fact of violation by a
preponderance of the evidence. The previous safeguard notice
served on the respondent required the respondent to maintain
any shelter holes, or crosscuts used as shelter holes, free
of debris and other materials so as to provide ready access
into the shelter. Since this was not done here, petitioner
has established a violation, and the citation IS AFFIRMED.
The "S&S" finding IS VACATED.
Docket No. PENN 83-129
This docket concerns six section 104(a) "S&S" citations
issued by MSHA Inspector Alvin L. Shade at the respondent's
Maple Creek No. 2 Mine, and the conditions or practices cited
are as follows:
Citation 2102605. The energized trolley wire at
.
2 Flat 6 Chute track switch was not adequately guardedwhere men are required to travel under regularly, as
guard boards were broken off the width of track
haulage. Mine was idle at time observed.

Citation 2106208. The continuous mining machine serial
no. JM 3476 approval no. 2 G-3227 A-00 in 4 Flat right
section was not maintained in permissible condition
as the fluorescent light opposite the GM operator was
not securely fastened to the machine as there were
two bolts missing in mounting bracket.
Citation 2102609. The approved roof control plan was
not being complied with in A entry 1 to 2, 4 Flat
section, as temporary roof supports (jacks) were
not installed according to the roof control plan as
center jack was installed first and installed two
jacks at same time.
Citation 2102611. The energized power wires serving
power to the indicator lights for reek latch, and
track haulage switch signal lights at mouth of 6 Flat
A track switch were in contact with combustible
material as reek latch lights were hung on wooden
post and had wires taped to same. Also, switch signal
lights were in contact with wooden cribs, wooden
plank used to saddle beams, and roof coal.
Citation 2102618. The twin boom Fletcher roof bolter,
serial no. 14242 approval no. 29-2607A-3 in 6 Flat 19 rm
section was not maintained in permissible condition
as there were two lights on the operator's side which
were not secured to the machine as bolts were missing
in the mounting.
Citation 2102619. There was a violation of the
approved ventilation, methane and dust control plan
in 20 rm 32 split 6 Flat 19 rm section as there
was only 2400 c.f.m. of air reaching the end of the
line curtain as measured with an anemometer while coal
was being mined with a continuous mining machine and
plan calls for 5,000 c.f.m.
Inspector Shade confirmed that he issued citation 2102605
after observing that an energized overhead trolley wire was
not guarded at a point where it crossed over the main track
where the locomotives, jeeps, and port-a-buses passed under
(Tr. 14), The trolley wire at this point is approximately
five to five and one-half feet above the ground, and it is
usually guarded on both sides by boards to prevent anyone from
coming in contact with the wire. The guard board had broken
off at the point where the wire crossed the main track,
thereby leaving the unguarded wire exposed and unprotected

for a distance of approximately six to eight feet (Tr. 16).
The wire carries 550 DC volts, and at the time he observed
the condition, the section was idle arid coal was not being
mined (Tr. 16). However, section foremen, mechanics, pumpers,
and rock dust crews would be "in the area," and they would
pass under the trolley wire since that was the normal way to
get to the section (Tr. l7)._
·
Inspector Shade testified that if anyone came into
contact with the unguarded wire, they would likely suffer
shock or burns. He also indicated that fatalities have ·
occurred in cases where miners contacted such wires under
-"just the right conditions." He indicated that most of the
trolley wires in the places he cited were lower than in
other places, and that someone could ·contact a wire by
walking under it or when getting out of equipment which has
stopped in the area. He stated that he, as well as pre-shift
examiners, walk under the wire at the location that he cited.
He also indicated that during his inspection, the union
walkaround representative advised him that someone at a
neighboring mine had come in contact with an unguarded trolley
wire and was taken out of the mine, but that the person was ·
"all right." The inspector also alluded to two fatalities
at another mine that he was aware of which were caused by
persons coming into contact with unguarded trolley wires (Tr.
21). He identified the mine as the Mathies Mine, and confirmed
that the accidents occurred about a year prior to his issuance
of the citation here in question (Tr. 22).
On cross-examination, Mr. Shade conceded that 95% of the
trolley wire in the mine is not required to be guarded, and
while it may be true that miners are aware of the locations
and hazards associated with trolley wires, they sometimes
become complacent. Mr. Shade confirmed that an insulated
hard hat would protect someone from .shock if they came in
contact with the wire with the hat (Tr. 29). He conceded
that it is not necessary to stop a piece of machinery under
the unguarded wire, and that there are other areas where the
wire crosses the track where equipment can stop without any
problems (Tr. 31). Someone sitting in a vehicle passing
under the wire would be about two feet from it, but if he
stands up for some reason, he may contact the wire (Tr. 3233) •
Respondent's Testimony
Respondent's counsel made a proffer that if called,
Wayne Croushore would testify that the person performing the
pre~shift examination in the area cited by Inspector Shade 1

would be riding in a vehicle rather than walking, and that
Mr. Croushore would be of the opinion that during the time of
the inspection it would be highly unlikely that anyone would
ever be injured by a trolley wire (Tr. 374). He would also
testify that he has no personal knowledge of anyone at the
mine ever coming in contact with a trolley wire (Tr. 376).
Mr. Croushore testified in connection with a similar
citation issued in Docket No. PENN 83-137, and his testimony
there was that when he is in a piece of equipment traveling
under a wire, he will duck his head to avoid contact with
the overhead trolley wire. He indicated that he has heard
of people "being hit" by such a wire, and when asked what
injuries would result from one coming in contact with a
550 volt trolley wire, he responded "it would depend on how
they hit it" (Tr. 381). He also admitted that he would not
be surprised to learn that someone could be injured or
killed after coming in contact with a 550 volt trolley wire,
and he conceded that this was a lot of power and "you respect
it" (Tr • 3 8 2 ) •
Mandatory safety standard section 75.1003, requires in
pertinent part that trolley wires be adequately guarded at
any point where men are required to work or pass regularly
under such wires. On the testimony and evidence adduced
here, it seems clear to me that the portion of the overhead
trolley wire which Mr. Shade cited was not adequately
guarded. The guard boards usually in place had apparently
fallen off and were not in place. It also seems clear to me
that the location where the trolley wire passed over the
track was in fact where men and equipment regularly traveled
while going into the section, and that during this travel,
men and equipment passed under the wire, either on foot or
in a piece of equipment. I conclude and find that the
petitioner has established a violat~on, and citation· 2102605
IS AFFIRMED.
.
With regard to the two permissibility violations, citations 2102608 and 2102618, petitioner's counsel stated that
Inspector Shade has agreed to delete his "significant and
substantial" findings on the ground that he has now determined
that the cited lights on the continuous mining machine and
roof bolter in question were "instrinsicly safe" under MSHA's
permissibility guidelines. Under the circumstances, MSHA's
counsel was of the view that it was not reasonably likely
that an accident or injury would occur as the result of the
missing bolts on the mounting brackets for the lights in
question (Tr. 73-80; 285).
The respondent does not dispute the fact that the conditions or practices ~tated in citations 2102608 and 2102618,

lfti'O

constituted violations of the permissibility requirements
stated in mandatory safety standard section 75.503. Under the
circumstances, .the citations ARE AFFIRMED.
Inspector Shade confirmed that he issued citation 2102611
for a violation of section 75.516, after observing that certain
signal lights which were hung up·were in contact with wooden
cribs, a wooden plank, and roof coal. He described the reek
latch switch lights as a string of lights used to indicate
wh~re a derail device is located (Tr. 390).
The lights were
hung on a post and were strung down along side of the post,
and the wire and lights were taped to the wooden post (Tr.
391). The wires were single insulated wires carrying 550 volts
od DC power, and this was also true of the lights used for the
track haulage signal (Tr. 393).
Mr. Shade stated that the reek latch lights in question
.are usually installed and hung on.insulators, but that in
this case he speculated that they had been torn down and
someone simply put them back up by using plastic tape' to tape
them to the post (Tr. 393). As for the signal lights, they
were hung where they usually are, but the wire was strung
through the cribs used to support the roof, and the wire was
strung over the crib plank and was in contact with the crib
as well as the roof coal, and it too carried 550 volts DC
power (Tr. 394).
Mr. Shade stated that the wires being in contact with
the wooden cribs and roof coal presented a fire hazard,
and that in the event of a broken wire, damaged·insulation,
or a short there would be such a hazard (Tr. 395). A trolley
pole could jump off and damage the wires, although he conceded
that it would not happen in the area where he found the wires
in question (Tr. 395). He confirmed that the conditions were
abated by hanging the reek lights on insulated hooks, and
taking the other lights off the cribs and hanging those on
insulated hooks also (Tr. 399).
On cross-examination, Mr. Shade stated that he believed
the mine was idle when he issued the citation. However,
there was power on the wires, and the wires were fully insulated. However, even so, he believed there is always a hazard
because wires can be damaged by falling materials or the
insulation could be damaged. However, he couldn't say whether
there was any tension on the wires, and he did not observe that
the wires were rubbing in any way (Tr. 401). He confirmed
that the area was a haulageway on intake air, and that in the
event of a fire it would have attracted someone's attention
downstream of the air. He also confirmed that the area is

1671

subject to a weekly electrical examination, and he had no
reason to believe that the condition would not have been discovered at the next weekly examination (Tr. 404).
Mr. Shade admitted that he did not check the pre-shift books,
and he had no idea how long the cited conditions existed (Tr. 421).
He admitted that he is not an electrician, and he found no break
in the wire in~ulation (Tr. 409).
Mandatory safety standard section 75.516, requires that all
_power wires be supported on well-insulated insulators and that
they not contact combustible material, roof, or ribs. In this
case, it seems clear from the unrebutted testimony of Inspector
Shade that the wires on which the lights in question were strung
were in fact touching wooden cribs, planks, and the roof coal,
all of which is combustible material. Further, the reek
lights were not hung on insulators, but were merely taped to
a wooden post. Under the circumstances, I conclude and find
that the pe~itioner has established a violation, and citation
2102611 IS AFFIRMED.
With regard to citation 2102619, Inspector Shade confirmed
that he issued it after determining that only 2,400 cubic feet
of air per minute was reaching the end of the line curtain
where coal was being mined with a continuous mining machine.
The ventilation plan, exhibit P-8, required that 5,000 cubic
feet of air per minute be maintained (Tr. 443-445). The purpose
of the air requirement is to sweep the face of any gases or
dust (Tr. 446).
Mr. Shade stated that when he first arrived on the section,
he and the foreman (Andy Peters) determined that there was
3,600 cubic feet of air at the end of the line curtain.
However, since coal was not being mined at that time, this was
not a violation. However, Mr. Shade' reminded the foreman that
he had to maintain 5,000 cubic feet of air when mining began,
and the foreman knew this (Tr. 446). Mr. Shade then left the
area. However, when he returned, coal mining had begun, and
he noticed that dust was rolling back over the continuous
miner operator. Mr. Peters informed him that he had 5,700
cubic feet of air, and Mr. Peters then left the area. Mr. Shade
waited until the operator was finished loading, and after
asking him to back the miner out, Mr. Shade took an air
reading with an anemometer at the end of the line curtain and
found 2,400 cubic feet per minute (Tr. 449).
Mr. Shade stated that after taking his reading, Mr. Peters
repaired the line curtain, but he still got only 3,750 cubic
feet of air. Mr. Peters then discovered that part of the line

1672

curtain was against a rib, and after "framing it out,"
Mr. Shade took another reading and got 5,700 cubic feet of
air (Tr. 451).
Mr. Shade testified that the mine liberates methane, and
that it is on a ·section 103(i) inspection cycle. He had no
knowledge as to how long· the·mine had been under such an
inspection cycl~, nor did he have any knowledge as to a
purported previously issued order for methane accumulations
(Tr. 457). He did confirm that he had previously issued a
citation for methane accumulation, but could supply no
-details, and he had no knowledge whether it was on the same
section or not (Tr. 460).
Mr •. Shade confirmed that he made a methane check, and
found· one-tenth of one percent methane, and he conceded that
it was not possible for a methane ignition to occur with
this amount of methane present. He indicated that the
explosive range of methane is five to ten percent (Tr. 463).
He conceded that the time time he issued the citation there
was no hazard of a methane ignition, and that he had no
knowledge as to' how much of the dust that he observed was
"respirable dust" (Tr. 463) •
Respondent's Testimony
Andrew Peters, Assistant Section Mine Foreman, testified
as to the events which occurred at the time the violation in
question was issued. He testified that he examined the face
area, took methane readings, and found 4,000 and 5,000
cubic feet per minute at the place where mining was to
begin. After receiving a complaint from the continuous
miner operator with respect to dust rolling back over his
machine, he took an air reading behind the curtain, and
found less than 5,000 cubic feet per minute. He found that
the air was being short-circuited, ahd he instructed that
repairs be made. After this was done, he measured the
required 5,000 feet and left the area (Tr. 486). He later
determined that some brattice curtain had.been knocked down,
and that the air was interupted, and he believed that the
miner operator and his helper should have been aware of this
situation (Tr. 497-499). He had no opinion as to whether it
was likely that an injury would occur as a result of the
cited conditions (Tr. 491).
On cross-examination, Mr. Peters confirmed the air
readings taken by the inspeotor to support the citation, and
he even conceded that the inspector gave him the benefit of

1873

the doubt by using a correction factor on his anemometer
(Tr. 493-494). He also explained the circumstances surrounding the abatement efforts made to correct the cited
condition (Tr. 496-500). Mr. Peters admitted to "a few
methane ignitions" at the Maple Creek No. 2 Mine, but he
indicated that they were face ignitions which did not result
in any explosions {Tr. 500).
After consideration of all of the testimony and evidence
here adduced, I conclude and find that the petitioner has
established a violation by a preponderance of the evidence.
Accordingly, citation no. 2102619 IS AFFIRMED.
Inspector Shade confirmed that he issued citation no.
2102609, because the respondent violated its approved roof
control plan when it installed two roof support jacks
simultaneously inby unsupported roof after a center jack
had been installed in an entry. The roof control plan does
not permit the simultaneous installation of two jacks because
it places the men under unsupported roof (Tr. 99). Mr. Shade
identified exhibit P-3, drawing No. 2 as the particular roof
control provision which he claims was violated (Tr. 102).
He explained that the roof jacks are installed after the
particular cut has been mined out, and that when he arrived
on the section, a "short cut" had been mined, and the jacks
were installed in preparation for roof bolting (Tr. 103).
Mr. Shade explained the roof control drawing, and he
confirmed that the jacks labeled A, B, and C were in place,
and he explained the sequence for installing the remaining
ones (Tr. 105-107). He explained that with the A, B, and
C jacks in place, the men next installed jack No. 2, the
center jack, and then walked inby unsupported roof and
installed jacks Nos. 4 and 6. This violated the plan, since
jacks Nos. 1 through 6 should have been installed in sequence
(Tr. 108; 111). The proper procedure ·is to install one jack,
and then go to the next one. Here, the men installed two at
a time, and they were exposed to more unsupported roof than
was necessary (Tr. 109). He confirmed that the distance
between the No. 4 and No. 6 jacks was.approximately 9-1/2 feet
(Tr. 110) •
Mr. Shade described the roof as "abnormal," and that it
had "potted in different places," and this is the reason why
a "short cut" of approximately 12 feet had been mined. He
also indicated that the roof in the entire section had "clay
veins," and "they had slips which passed through a loose
roof that fall out at any time" (Tr. 112). He believed that
the respondent knew the roof was bad and that is why 12-foot

1674

cuts were being mined (Tr. 113). Mr. Shade was aware of a
roof fatality which occurred at the Maple Creek No. 1 Mine
last summer, but he is not aware of any at the No. 2 mine
(Tr. 115) •
Mr. Shade stated that abatement was achieved by installing
the jacks according to the plan, but he could not recall if
the section foreman was present when the jacks were installed
(Tr. 118). Mr. Shade confirmed that he observed the men
walk in with the number 4 and 6 jacks and he called them back
_out of the area with the jacks, and he reviewed the installation plan with them (Tr. 119).
On cross-examination, Mr. Shade conceded that the roof
control plan does not specifically state that two men may
not install roof jacks at the same time, but that it does
provide for a particular sequence in which the jacks have to
be installed.
He also indicated that one can only go under
unsupported roof for a distance of five feet and that the
plan provides "that you can only use the people to install
jacks that you need to install jacks" (Tr. 127).
Mr. Shade confirmed that at the time he issued the citation, three jacks (A, B, C), were in place. The men then
install~d jack no. 2, then walked into the entry with jacks
4 and 6, and that is when he called them back out and advised
them that they were out of compliance (Tr. 133, 139). He
confirmed that when jack No. 2 was installed, it was within
5-1/2 feet of the last row of roof bolts, and that since a
12-foot cut was being mined, jack No. 2 would have been
6-1/2 feet from the face (Tr. 134). He stated that had
the men installed jacks 1, 2, and 3 before going inby to
begin installing jacks 4, 5, and 6 there would not have
been a violation (Tr. 135).
Mr. Shade conceded that he made no measurements at the
time he issued the citation, and he conceded that the men
being four feet beyond the center jack would have been within
2-1/2 feet of the face (Tr. 140). He· confirmed that at the
time the citation issued, the area had been mined, and the
roof was being supported in preparation for roof bolting. He
conceded that it was possible that the reason a 12-foot cut
was taken was that time ran out on the last shift, and that
it was possible that the. 12-foot cut had nothing to do with
the roof conditions (Tr. 150).

1675

Mr. Shade agreed that the roof control plan permits
someone to go under unsupported roof to install temporary
supports, and after the first row of jacks are installed, the
roof is no longer unsupported, and a person may then go 5-1/2
feet inby the last support to install the next one (Tr. 153).
He further expla.ined the violation, as follows (Tr. 154):
Q.
So the man who set the center jack was in
violation of the plan?

A.

Yes, he was.

Q.

Because he was beyond five and a half feet?

A.
Because he set that in the center of the entry.
If he would have started with five and three, it
wouldn't have been in violation; but he started in
the center, which didn't put him within five feet of
a rib or another jack.
Q.
If the two men setting No. 4 and No. 6 jack,
what you call No. 4 and No. 6 jack, were within five
and a half feet of the last row of bolts, there was
no violation?

A.
Well, then they set both of these jacks, you·
sent more people in that is necessary and you cannot
do this.
In response to further questions, Mr. Shade testified
as follows (Tr. 160-163):
Mr. Shade, now, you testified that the first
jack you actually observed being installed was .
jack No. 2 on Drawing No. 2 and then you next
observed that two miners were going to install
jacks No. 4 and 6.

Q.

1

Now, how do you know that? What specifically
did you see them do that led you to conclude that
they were going to install jacks 4 and 6?
A.

I saw them going in there.

Q.

With what did they have with them?

A.
Two jacks. Each had a jack. They started to
install them. They had them up in the roof and
they pulled the jack and came back out.

1676

Q.

They actually started the installation process?

A.

Yes.

Q.

At the locations that you have already identified?

A.
Well, they went in there with both jacks.
they do _.:..
·
JUDGE KOUTRAS:
THE WITNESS:
roof.

Were the jacks set?
They weren't secured against the

JUDGE KOUTRAS:
with them -THE WITNESS:

What

Did they bring the jacks back out
Yes.

JUDGE KOUTRAS:

when you called them back out?

THE WITNESS: I asked them what they were doing.
said they're in violation.

I

JUDGE KOUTRAS: What if they would have had the jacks
already set, would you have forced them to take them
back out?
THE WITNESS:

No, I wouldn't have forced anybody.

JUDGE KOUTRAS:
THE WITNESS:

They had not installed it?
No.

JUDGE KOUTRAS: When you called'them back out, did
they carry the jacks back out?
THE WITNESS:

Yes, that's what I have on my drawing.

BY MS. GISMONDI:
Q·.
Now, Mr. Shade, what specifically, to the
best of your recollection, what was done to
terminate this violation?

A.
Well, in the first place, they got to have
three jacks and the first -- really three jacks,
they installed those three jacks and then they
went in and installed the other jacks.

1677

Q.

So they installed jacks 1 and 3?

A.

Yes.

Q.
Then they installed the row 4, 5, and 6; is
that correct?
A.

Yes.

Respondent's Testimony and Evidence
Joseph Skompski, assistant section foreman, testified as
to his experience, and he confirmed that he was familiar with
the mine roof control plan. He confirmed that he accompanied
Inspector Shade during his inspection, and after referring
to drawing No. 2 of the roof control plan, he stated that
jack No. 2 was installed, and the men then "grabbed jacks 1
and 3 and they was going to set them and they went inby 2 a
little bit" (Tr. 175). Mr. Shade then withdrew the men and
discussed the roof control plan (Tr. 176).
Mr. Skompski stated that jack Nos. 2, 1, A, B, and C were
in place at the time the citation issued, and it was his
understanding that the violation was issued because two jacks
were installed at the same time (Tr. 176). Mr. Skompski
conceded that the roof plan requires that the roof supports
be installed "in sequence, row by row" (Tr. 178). He stated
that the men who were installing the jacks were experienced
miners, and that it was his understanding that they intended
to install jack Nos. 1 and 3, and he estimated that the
center jack was 5 to 5-1/2 feet from the last row of roof
bolts (Tr. 181).
On cross-examination, Mr. Skompski conceded that the roof
conditions on the section "weren't the best conditions" (Tr.
182). He confirmed that under the approved roof control plan,
temporary roof jacks are to be installed "rib-to-rib" (Tr. 183).
He stated that he observed two men carrylng jacks, and that they
were going to install them at positions 1 and 3, as shown on the
diagram, and that this would have placed them in line with jack
No. 3 (Tr. 185). Referring to the diagram, Mr. Skompski confirmed
that if two men started at jack No. 2 and installed jack
Nos. 1 and 3 from either side of No. 2, they would be in
compli'ance with the roof control plan as long as they stayed
within 5-1/2 feet of jack No. 2 (Tr. 193) •
Samuel L. Cortis, respondent's chief mine inspector,
testified that part of his job is to prepare roof control
plans for submission to MSHA. He identified drawing No. 2,
and stated that it depicts two sets of roof control plans.
He stated that during the mining phase, roof control is

1878

accomplished by installing jacks A through D, 1, 4, and 7,
as shown on the diagram (Tr. 214). Once mining is completed,
and roof bolting begins, there is an eight-jack temporary
roof support plan that is put into operation, and he explained
this procedure (Tr. 214-217). He explained that drawing No. 1
depicts where temporary roof jacks are to be installed during
certain sequences in the mining cycle, and he explained the
procedures and confirmed that the ribs may be used as additional roof protection while installing the jacks (Tr. 220).
He further explained how the jacks could be installed, and he
indicated that they need not be installed in numerical
sequence, as long as the distances between the jacks are
maintained (Tr. 222).
On cross-examination, Mr. Cortis confirmed that as long
as the next jack is kept within five feet of a person for
protection, other jacks may be installed, regardless of the
sequence (Tr. 223). He explained the procedures followed
in the mine for the instalLation of jacks (Tr. 223-229),
and he confirmed that the maximum allowable distance that
anyone can go inby the last row of permanent roof supports
to install temporary roof jacks is 5-1/2 feet (Tr. 237).
Petitioner's counsel acknowledges that under the roof
control plan, a person may go out under unsupported roof to
install temporary roof jacks as long as they are within
5-1/2 feet of the last temporary support. Counsel's understanding of the plan is that there are "two variables" that
come into play with regard to how far a person may venture
out under unsupported roof. Counsel asserted that one may
go inby the last row of permanent supports (roof bolts) ,
towards the face, for a distance of 5-1/2 feet. However, at
all times, one must remain within five feet laterally of
either rib or the next adjacent later.al jack (Tr. 230-231).
I

Referring to drawing no. 2, Mr. Cortis was asked certain
questions regarding his interpretation o! the jack installation sequence and he responded as follows (Tr. 241-246):
JUDGE KOUTRAS: She asked you, Counsel has asked
you a question before, what the maximum distance
someone can walk under an unsupported roof and you
said five and a half feet. Now, does that mean
under five and a half feet from permanent supports
or from temporary supports or both he can walk
out from?

1679

THE WITNESS: From both.
permanent or temporary.

It would be either

JUDGE KOUTRAS: What I have a problem understanding
here is if a fellow walks out starting at the last
row of supports and walks out from nine and a half
feet to set post No. 4,· he would be in violation
of the rule that says you cannot be more than five
and a half feet inby permanent supports; correct?
THE WITNESS:

He would be, in that case.

JUDGE KOUTRAS: But wouldn't he be within five and
a half feet of C, which is a temporary roof support?
THE W~TNESS:
JUDGE KOUTRAS:

That's correct.
Then how is he in violation?

THE WITNESS: Well, only in, I guess, in what our
interpretation of the plan would be.
JUDGE KOUTRAS: Now, Ms. Gismondi, did you follow
that? Is he in violation?
MS. GISMONDI:

Yes, I believe he is.

JUDGE KOUTRAS:

Why?

MS. GISMONDI: As I said, it is my understanding that
there are maximum allowable distances both from, you
know, working both laterally, that is, how far you are
from either the rib or the next adjacent lateral
support and how far inby are you.
I mean, as I said, I think there are two variables
going on. You have got to have protection to either
side of you, you have to have protection behind you.
JUDGE KOUTRAS: Well, now, that is the point. Look,
this second drawing, I have got permanent roof bolts
nine and a half between the arrows.
MS. GISMONDI:

Correct.

JUDGE KOUTRAS: Depending on how this man -- let's
assume he starts at point A and walks out here
(indicating) . Nine and a half feet with a jack over

1680

his shoulder, he is going nine and a half feet out
in unsupported roof in this direction and that
violates the plan?
MS. , GISMONDI:
yes.

As far as the Secretary is concerned,

JUDGE KOUTRAS:
half feet.

Because it is more than five and a

MS. GISMONDI:
he is.

Regardless of how close to the rib

JUDGE KOUTRAS: But if you've got temporary roof
C set and the man walks under A and B and walks
from this point, he is not under unsupported roof
at any time, if you consider the permanent jack
in place within five and a half feet?
MS. GISMONDI: I would say, yes, he is, Judge,
because, again, he may have support to his left but
he doesn't have any support behind him.
JUDGE KOUTRAS: My hypothetical says he got this
far and that support and the rib is there (indicating) •
MS. GISMONDI: He is still more than five and a half
feet. As I said, I think there -JUDGE KOUTRAS:

From this reference point?

MS. GISMONDI:
right.

Right, which is the permanent bolt,

JUDGE KOUTRAS: That is what the parties understand Drawing No. 2 in this Roof Control is all
about?
MS. GISMONDI:

That is what I understand it to be.

JUDGE KOUTRAS:
Mr. Cortis?

Is that your understanding,

THE WITNESS:
JUDGE KOUTRAS:

Yes.
That is your understanding?

THE WITNESS: It is my understanding that we have
to be within five and a half feet of support,
permanent or temporary.

1681

Inspector Shade was called in rebuttal, and he identified
a copy of the notes he made at the time the citation issued
(exhibit P-5; Tr. 254). He quoted from his notes, and he
indicated that they reflect that the jacks identified as
A, B, and C, were in place when he arrived, that jack 2 was
then next installed while he observed the scene, and that
the note "short cut installed both at once" confirmed that
"they started installing" jacks 4 and 6 (Tr. 256). He believed
that the miners who were going to install the 4 and 6 jacks
were in beyond jack 2 further than four feet (Tr. 257).
Referring to roof plan drawing no. 2, Mr. Shade indicated
that under the plan, miners may go 5-1/2 feet inby permanent
roof supports to install temporary jacks, and that after
that they may go four feet inby the temporary jacks to install
the next row of temporary jacks (Tr. 258). He confirmed that
the maximum allowable distance that a miner may go laterally
from either the next adjacent rib or support is five feet
(Tr. 258). On cross-examination, Mr. Shade further explained
his notes, markings, and the observations which he made at
the time the citation issued (Tr. 259-282).
Citation No. 2102609 charges the respondent with a violation of its approved roof control plan. Exhibit P-4 is a copy
of the applicable complete roof control plan, and exhibit P-3
contains copies of pages from the plan, and in particular
two pages labeled "Drawing No. 1 11 and Drawing No. 2." Although
Inspector Shade failed to include in the-citation a specific
reference to the applicable roof control provision which he
believed was violated, he testified that Drawing No. 2 was
the particular plan provision which was violated. His contention is that the installation of two temporary roof jacks,
simultaneously, is a violation of the plan because it exposes
the miners installing those jacks to unsupported roof.
Apart from any roof control violation, mandatory section
75.200 prohibits anyone from proceeded beyond the last permanent roof supports unless adequate temporary support is
provided. Thus, the question here presented is (1) whether
the respondent has violated any specific portion of its
approved roof control plan, and (2) absent a violation of
the plan, was there a violation of section 75.200, when the
two miners proceeded to install the two jacks in question.
The testimony in this case concerning the applicable roof
control plan is most confusing. Drawings 1 and 2 are used

1682

interchangeably, and respondent's witness Cortis, the man
who drafted the plans for MSHA's approval, even went so far
as to testify that Drawing No. 2 contains "two plans." By
failing to state on the face of the citation the precise
roof control plan provision allegedly violated, the inspector
contribute.a to the confusion. Although the citation states
that two jacks were installed simultaneously, the inspector
conceded that there is nothing in the plan to prohibit this
per se. Although the inspector characterized the roof condition as "abnormal," and indicated that this explained why a
"short cut" was being taken, on cross-examination he conceded
that it was possible that a "short cut" was taken because of
a time factor rather than because of the roof conditions.
Further, although the question of distances is critical here,
the inspector conceded that he made no measurements, and his
contemporaneous notes (exhibit P-5), shed no light on this.
The notes simply reflect that one jack was installed first,
and two others were installed at the same time.
Inspector Shade testified that three jacks were installed
along the left rib of the entry in question, and these have
been identified as jacks A, B, and C. He also testified
that jack No. 2, which is the middle jack of three temporary
jacks, was also installed at the time he viewed the area in
question. Jack No. 2 was inby the row of permanent roof
bolts which had been installed.
Inspector Shade was concerned
over the fact that two miners proceeded inby jack No. 2 to
simultaneously install two additional jacks, which have been
identified as Nos. 4 and 6.
In the inspector's view, when
this was done, the miners who were installing those jacks
were under unsupported roof.
After careful review and consideration of all of the
evidence and testimony adduced in this case, I cannot conclude
that the petitioner has established:by a preponderance of the
evidence that the respondent violated its roof control plan.
With respect to the question as to whether the two miners who
started to install the two roof jacks in question were under
unsupported roof, I can only conclude that the miner who
intended to install roof jack No. 6 would have been under
unsupported roof.
Insofar as the other miner was concerned,
I conclude that the rib jacks and permanent roof supports
provided him ample protection when he ventured out into the
entry to install roof jack No. 4. As. for the miner who walked
out with the intent to install roof jack No. 6, while he was
protected on the diagonal by roof jack No. 2, he was not protected by any roof support outby and towards.the permanent
supports, nor was he protected by any roof support laterally.
Accordingly, to that extent he was in fact under unsupported

1683

roof, and it is on that basis that I affirm the citation. In
short, I conclude and find that one of the two miners who
simultaneously installed the two jacks in question within the
view of the inspector, was under unsupported roof. Under the
circumstances, this was a violation of section 75.200,- and to
that extent tne citation· IS AFFIRMED.
'
Docket No. PENN 83-128
Section 104(a) "S&S" Citation No. 2103081, charges that
-a Kersey battery-powered scoop was not maintained in a permissible condition in that an opening in excess of .005 inches
(plane flange joint), was present in the lower right hand
corner of the contactor compartment located in the operator's
compartment. The inspector cited a violation of mandatory
safety standard 30 CFR 75.503.
MSHA Inspector Okey H. Wolfe confirmed that he issued
the violation in question, and explained why he did so (Tr.
511-516). He indicated that he found an opening between
the cover and the contactor compartment of the scoop in
question, and that the opening was .005, as measured by a
feeler guage, and the allowable limit is .004 (Tr. 517). He
described the batteries on the scoop as 240 volt DC, and he
believed that the hazard presented by the violation was that
the opening could be an ignition source for methane. He
took methane readings, and detected none present (Tr. 520).
He did confirm that the mine is on a "30l(i) spot inspection
status," which indicates that it liberates more than one
million cubic feet of methane in a 24-hour period (Tr. 520).
He explained the purpose of the permissibility requirements of
the cited standard as follows (Tr. 520-522):
Q.
Mr. Wolfe, what is the purp~se of the
permissibility regulations providing that there
be an opening no greater than .004 i.nches?

A.
Well, the idea of that is that these
explosion-proof enclosures, none of them are
air tight, and when a piece of equipment is in
operation, it tends to warm up, which causes
expansion of the air that's in the compartment,
and therefore when it cools, it has a tendency
to pull whatever atmosphere it happens to be in
back into the compartment, and should that
atmosphere contain an explosion mixture of methane,
the idea of opening it is to provide a flame path,
so that if methane were drawn back into the

1684

compartment during the cooling stage and ignited
by the arcing and sparking inside that compartment,
that it would prevent it from getting to the outside atmosphere. It would be cooled sufficiently
that it would not ignite methane once it exited
the boss or enclosure.
Q.
Now, is that purpose served where you have
an opening in excess of .005 inches?

A.

No, it is not.

Q.
What would happen if methane were drawn
into this piece of equipment as it exited when you
issued the Citation?

A.
In all likelihood, if once it was ignited within
that compartment, it would escape to the outside
atmosphere.
Do you know whether or not there have ever
been any excessive methane accumulations at Maple
Creek No. l?
Q.

A.
There have been 107(a) orders issued for
methane in excess of 1.5.
Q.
What type of injury would result in the event
of an explosion or a fire occurring as a result
of this violation?

A.
Well, the injuries that could result of a
methane explosion would be concussion, burns,
asphyxiation.
On cross-examination, Mr. Wolfe 'denied that at the time
he issued the citation in question he was instructed that all
permissibility violations should be cons·idered as "significant
and substantial" {Tr. 524). He explained his instructions
in determing whether a violation was "S&S" or not, and he
confirmed that at the time he issued the citation, he detected
no methane in the area, there was adequate ventilation, and
the scoop in question was three crosscuts outby the last
open crosscut (Tr. 524-526). He conceded that there is a
state law requiring a methane check at the face before any
electrical equipment is taken there (Tr. 527).
Mr. Wolfe could not state whether anyone ever intended
to use the scoop at the face on the day that he cited it,

1685

but he did indicate that the scoops are normally used "to
clean up and carry supplies around" (Tr. 529). He could not
state how long a scoop would normally spend in the face
area, and he has observed a scoop in operation during the
entire cleanup cycle (Tr. 530).
.

.

Mr. Wolfe could not state how the opening in question
was created, and he confirmed that abatement was achieved
by merely tightening up the bolt. He confirmed that the
equipment in question should be examined weekly, but he had
_no way of knowing how long the condition existed, and he had
no reason to believe that the condition would not have been
corrected during the next weekly examination (Tr. 531).
Mr. Wolfe stated that anytime there is mining in the
Pittsburgh coal seam, there is a definite possibility that
methane will be encountered, and he confirmed that the
mine in question has only experienced face ignitions which
did not result in any personal injuries or damage to property
(Tr. 532). He further explained his concerns as follows
(Tr. 533-534).
Now, didn't you testify that the ventilation
on this section was perfectly adequate?

Q.

A.

Yes, ma'am.

Q.
Did you have any reason to believe this scoop
was going anywhere but this particular· section?
A.

No.

So, what led you to believe that there was
going to be an accumulation of methane to the 5 to
15 percent range on this section?

Q.

A.
Well, methane can accumulate ... There are a
lot of reasons why methane can accumulate. I mean,
at the time I was there, everything was fine as
far as the ventilation was concerned and so on and
so forth, but I don't know what is going to happen
in the next hour or the next day or the next week.
Did you have any opinion as to what period of
time it would take for this occurrence to take
place?
Q.

A.

No, I did not.

1686

Q.
Did you have any opinion as to how likely it
was to happen before the next weekly electrical
examination?

A.

No.

If you considered the factors that were
present when you examined the scoop and considered
. the history of the mine and assumed that the condition would be corrected at the next permissibility
examination, would you consider this violation
to be significant and substantial?
Q.

A.
Those are not my instructions.
consider just that mine.

I do not

When asked why he believed the scoop would be used inby
the last open crosscut, Mr. Wolfe replied that it was standard
procedure in the mine to use such scoops for cleaning up the
face areas and the returns, and his "guess" was that it was
last used on the idle shift or on the last production shift,
possibly to carry supplie• to the face (Tr. 542-543).
Respondent's Testimony
Jose~h Ritz, ventilation foreman, testified as to his
responsibilities, and they include the examination of air
courses, bleeders, and methane examinations in the returns.
He confirmed that he has 13 years of mining experience,
holds a degree in mining from Penn State University, and has
been an active member of the mine rescue team for several
years (Tr. 546).

Mr. Ritz stated that he was familiar with the mine ventilation plan, and he described the amount of air induced into
the mine ventilation system, and the amount of methane taken
out (Tr. 547). Since 1974, he could recall only one methane
face ignition at the Maple Creek No. 1 Mine, and he described
it as a frictional ignition where a miner cutting coal ignited
a pocket of methane, and he indicated "it flashed and was out
probably about as quick as it happened" (Tr. 548). He was
of the opinion that the chances of a scoop igniting any methane,
with the opening described, was remote (Tr. 548). He could
recall no section 107(a) orders ever being issued at the mine
for excessive accumulations of methane (Tr. 549).
On cross-examination, Mr. Ritz agreed that mine ventilation can be interrupted and there was no "guarantee" that
this will not happen (Tr. 551). However, he explained the

1687

various safeguards and systems in effect at the mine to
indicate when ventilation ,is interrupted. He stated that the
mine in question liberated under a million cubic feet of
methane per 24-hours, but that this will vary as conditions
change (Tr. 553-556).
When asked whether ·he had any doubts as to whether.or
not the scoop in question would be used inby the last open
crosscut, Mr. Ritz stated that the use of the scoop varies,
ana that he had no way to determine whether it would be used
on the next shift, or whether it was used on the previous
shift. He was only sure that it was used on the shift when
it·was observed by the inspector (Tr. 558). Although he
denied that the scoop is used primarily inby the last open
crosscut, he conceded that it is so used at times for cleanup,
and that it is also used to haul supplies outby (Tr. 559).
He did confirm that on the day of the inspection, the mine
was active, and that the cited scoop was the only scoop available for cleaning up at the face area (Tr. 560). He also
agreed that the scoop had not been "tagged out" (Tr. 561).
When asked his view on the opening found in the equipment
by the inspector, Mr. Ritz agreed that it was not wise to
leave the condition uncorrected, that he would insure that it
was fixed if he found the condition, and he conceded that in
any permissibility violation, "Murphy's Law" applies. He
explained by stating that "if it can happen, it will happen"
(Tr. 565) •
.
After careful consideration of all of the testimony and
evidence adduced here, I conclude and find that the petitioner
has established a violation by a preponderance of the evidence.
Mandatory safety standard section 75.503, requires that all
electric face equipment taken or used inby the last open
crosscut be maintained in a permissible condition. Here, the
respondent does not dispute the fact that the cited piece of
equipment was not maintained permissible. As for the question
of whether or not it was "used or intended to be used inby
the last open crosscut," I conclude and find that the petitioner
has established that this was the case. Respondent's own
witness (Ritz), admitted that the scoop was, in the normal
course .of business, used inby the last open crosscut, and that
it was the only scoop available to perform cleanup of the face
areas. Absent any evidence to the contrary, I conclude and
find that the preponderance of the evidence establishes that
the scoop in question "was used or intended to be used inby
the last open crosscut." Under the circumstances, Citation No.
2103081 IS AFFIRMED.

1688

Docket No. PENN 83-137
In this case, MSHA Inspector Francis E. Wehr issued a
section 104(a), "S&S" citation on December 14, 1982, citing
a violation of ~andatory safety standard 30 CFR 75.1003.
The condition or practice cited is as follows:
Adequate guarding was not provided for the
energized trolley wire and trolley feeder, at the
37 crossover switch off C track haulage road. The
guards on the inside were knocked down and lying
on the mine floor on B track haulage.
Inspector Wehr confirmed that he issued the citation in
question after finding that the overhead energized trolley
wire at the c track cross-over switch was inadequately guarded.
He stated that the guarding had been knocked off, and that he
found it lying on the mine floor. The guarding was missing
along a six-foot area which he described as the "V" intersection, at the point where the C track haulage and a cross-over
from the B track haulage intersected. He identified exhibit
P-1 as a copy of the citation, and the second page is a copy
of his notes, including a rough sketch of the cited location
(Tr. 319-329).
Mr. Wehr stated that the trolley wire ~as approximately
five and one-half to six feet off the floor, and that it was a
550-volt DC wire. He confirmed that abatement was timely
achieved by re-installing the section of guarding which was
not in place. He also confirmed that the trolley wire
guarding has been a problem in the mine in that it is often
knocked off by the trolley "harps," particularly at the
track switch-over locations. He also indicated that mine
management is aware of the problem and makes an effort to
constantly keep after the work force to be alert to the
problem.
'
Mr. Wehr indicated that his principal concern was that
the locomotive or mantrip operators who regularly passed
under the wire would come in contact with the unguarded
wire. If they did, it was his opinion that it was reasonably
likely that a serious injury would occur. He confirmed that
he was aware of the fact that· past accidents or fatalities
have occurred in the mining industry when miners came in
contact with unguarded trolley wires similar to those which ·
he cited in this case. Although he could not document any
recent accidents at the mine, he did indicate that he had

1689

heard that someone had recently come in contact with a
trolley wire at the mine, but he had no specific details
about the incident.
Mr. Wehr described the different types of vehicle conveyances which used the track haulage, and he believed that it was
possible for a miner operating this equipment to come in contact
with the overhead wire while in the equipment. Although he
conceded that he did indicate on the face of his citation that
only one person would be affected by the conditions he cited,
he emphasized that under certain circumstances other persons
would be in the area where he found the unguarded trolley wire,
and he identified them as foremen, company inspectors, and pumpers
(Tr. 333-334) •
Mr. Wehr did not know how long the guarding had been
down, and he stated that he checked the pre-shift books
but found no notations that the guard was down. He also
indicated that guards do get knocked down when a power pole
jumps off the wire (Tr. 337).
On cross-examination, Mr. Wehr conceded that trolley
guarding is a mine maintenance item and that it is not
physically possible to keep up with it all the time (Tr. 342).
He confirmed that at the Maple Creek No. 2 Mine, two men are
regularly assigned to replace trolley guarding that has been
knocked down (Tr. 346). He also conceded that persons riding
a locomotive wear protective hats, and that these hat's provide
electrical protection (Tr. 351).
Respondent's Testimony
Paul Gaydos, construction foreman, testified that in his
opinion, while it was possible that someone could be. injured
because the trolley guard board was,down, i t was not probable.
He indicated that a small area of wire was unguarded, and
that through training, safety meetings, .. and inspections,
everyone is made aware of these situations (Tr. 354-356).
Mr. Gaydos identified the types of equipment which would pass
under the wire, and he indicated that he was six-foot-three
and had often passed under the wire, but has not come very
close to it (Tr. 357). He conceded that if one were in the
largest piece of equipment, a 54-ton locomotive, his head may
be 5-1/2 feet off the ground level (Tr. 358).
Mr. Gaydos stated that it is very unlikely that a power
pole would come off the trolley wire at the crossing chute

1690

location in question, and this is because one is not moving
fast.
If the pole does come off, one could stop the vehicle•
and retrieve the pole (Tr. 359). He indicated that the mine
must be pre-shifted three hours preceding the next operating
shift, and that this includes the trolley wire guards (Tr.
359-360) • He could not remember how long the guard in
question was down (Tr. 361). Mr. Gaydos could not state how
serious an injury would result if one were to simply brush
the wire, but conceded that he "respects it," and would not
like-to back into it (Tr. 364).
On cross-examination, Mr. Gaydos confirmed that short
of someone committing suicide by intentionally grabbing
the wire, he could not imagine anyone suffering fatal injuries
while riding in a piece of equipment under the wire. He
stated that it was his practice to duck his head while
approaching an overhead wire, and he would expect that an
experienced motorman would do the same (Tr. 365-366). He
conceded that i t was possible that the guards were knocked
off by a pole coming off the wire, and he confirmed that under
State law the trolley guard boards extend two inches below
the wire (Tr. 370).
After carefuly consideration of all of the testimony and
evidence adduced here, I conclude and find that the petitioner
has established by a preponderance of the evidence that the
guarding for the cited energized trolley wire at the location
in question was inadequate, and that this constitutes a violation of section 75.1003. Accordingly, Citation No. 2102681
IS AFFIRMED.
PENN 83-136
MSHA Inspector Okey H. Wolfe confirmed that he issued·
Citation No. 2103084, on February 8, ,1983, for a permissibility
violation on a Fletcher roof bolter after finding that one of
the bolts which secured the ~id to the main contactor compartment was missing (Tr. 579). The function of the compartment
is to distribute power to various parts of the machine after
it comes in from the power source. He believed the mine was
active the day the citation issued, and the bolter was
required to be maintained in permissible condition. All
bolts must be in place so as to preclude methane from
entering the compartment or to confine any methane ignition
inside the compartment (Tr. 581).
The parties agreed to incorporate by reference Mr. Wolfe's
prior testimony concerning the methane liberation history of

•

1691

the mine, as well as his rationale for finding that the violation was significant and substantial (Tr. 582). Mr. Wolfe was
sure that the ~oof bolter was used inby the last open crosscut
and that it was the only one available on the section (Tr. 583).
The parties· agreed.to proffer the testimony of Mr. Joseph
Ritz on behalf of .the respondent, and that if called he would
testify that the cited roof bolter was parked two blocks outby
the last open crosscut, there was no opening in the contactar
compartment, the section was wet and well rock dusted, the
ventilation was good, and there was no methane detected anywhere in the section (Tr. 592-593). Petitioner's counsel
added that she would ask the witness to confirm that interruptions to the· ventilation are always possible (Tr. 593).
While ·it may be true that the roof bolter was parked at
the time it was cited by Inspector Wolfe, I find his testimony
that it was used on the section for roof bolting to be
credible. Respondent has offered no testimony or evidence to
the contrary, nor has the respondent rebutted the fact that
the missing bolt on the contactor panel was a permissibility
violation. I conclude and find that the petitioner has
established the fact of violation, and Citation No. 2103084
IS AFFIRMED.
Inspector Wolfe confirmed that he issued Citation No.
2103085 on February 8, 1983, citing a violation of section
75.606 after observing a shuttle car run over its own trailing
cable ·(Tr. 594-595). The car was in operation and was coming
off the loading point, and it ran over the cable one time. The
cable-is a 440-volt AC cable, and Mr. Wolfe issued the citation
to Mr. Ritz as soon as he observed the car run over the cable •

•

Mr. Wolfe stated that the power was reduced, arid the cable
was inspected for damage. However, no visible damage to the
cable or to the outer insulation was found (Tr. 596). Mr. Wolfe
stated that the danger presented was a ··possible fire hazard
due to cable damage not readily observable, and a possible shock
hazard. He indicated that the cable is handled from time to
time, and while he could not recall whether the area was wet,
but he believed that the area was "normally pretty wet" (Tr.
597). His concern for a fire hazard stemmed from the fact
that if there were internal cable damage, two leads could
come together which would cause the cable to "blow," and
that while AC cables are protected, "you would still have a
momentary flash that would be pretty hot" (Tr. 598).

Mr. Wolfe believed that cable damage will result from a
heavy machine running over it, and that "if it would continue,
it is definitely going to cause damage to it eventually" JTr.
598). He admitted that when he operated a shuttle car, there
were times when he ran over his own cable, and normally, an
operator can observe when this happens (Tr. 600). In the
instant case, he had no way of knowing whether the operator
had run over the cable prior to his observing it, nor did he
know that the machine operator was even aware that he had
run over his cable (Tr. 601).
Mr. Wolfe conceded that he was more concerned with a fire
hazard rather than a shock hazard, and if a fire occurred,
miners underground would be exposed to smoke inhalation and
burn hazards. Also, toxic fumes could be given off from the
burning insulation or neoprene cable jackets. He was aware
of a previous fire in another mine caused by cable damage-.
A short circuit occurred in the cable, and when it was reeled
up, it caught the car on fire. However, he did not know
whether the short circuit was caused by the car running over
the cable 1 and it was possible that the cable was damaged by
fallen rock. The resulting fire filled the section with smoke
(Tr . 6 0 3- 6 0 5) •
On cross-examination, Mr. Wolfe conceded that it "could
well be possible" that the incident in question was a: "freak
accident" in that the cable got caught between the.cable
compartment lid and the side of the shuttle car, and that
"perhaps" the operator did not realize what had occurred
(Tr. 605). He also conceded that he permitted the car to
continue in operation after the cable was inspected, and that
it was not taken out of service (Tr. 606).
Respondent's Testimony
Joseph Ritz testified as to the circumstances surrounding
the shuttle car operator's cutting of his own trailing cable.
He stated that it happened when the 9ar operator slowly
drifted off the loading ramp while bac~ing up and he and the
inspector were standing nearby observing him (Tr. 633).
Mr. Ritz indicated that the operator "d:i::;ifted back" and the
cable did not "pick up" on the reel because the hydraulic
motor did not engage, and as a result "he just ran onto the
cable" (Tr. 633). Mr. Ritz believed that the operator was
aware of the presence of the inspector, and simply did not
pay close attention to what he was doing (Tr. 634). Mr. Ritz
immediately de-energized the machine, and he, the inspector,
and the section mechanic, visually inspected the cable and
found no visible damage. The power was put on again, and the
shuttle car was put back in service (Tr. 635).

"'··

Mr. Ritz was of the opinion that there was no problem
with the cable, and he personally has never observed a fire
on an AC cable such as the one in question. Once the cable
is put in service, he does not believe that anyone would
handle it, and he did not understand why the inspector issued
the citation (Tr. 688). The operator was admonished to watch
out for his cable, and he continued operating the car after
the cable was inspected (Tr. 639). Mr. Ritz stated that the
section was wet (Tr. 631). He also indicated that had there
bee~ any critical damage to the interior of the cable the
ground fault system would likely "kick out the power" and
_de-energized the cable (Tr. 643).
Respondent does not dispute the fact that the cited
shuttle car ran over its own trailing cable. Petitioner
affirmed that the theory of its case lies in the fact that
the cited standard requires that trailing cables be adequately
protected to prevent damage by mobile equipment (Tr. 646).
Further, petitioner's counsel was of the view that the manner
in which the car operator was operating the shuttle car at
the time the inspector observed him run over the cable
constituted the gist of the violation (Tr. 647, 651). As
concisely stated by counsel, "the cable is supposed to be
protected from damage. When you run over it, it is not
protected from damage" (Tr. 651).
Mandatory safety standard section 75.607 requires that
trailing cables be adequately protected to prevent damage by
mobile equipment. In the instant case, it seems clear to me
that the trailing cable in question was in fact run over by
the shuttle car operator as he drifted back off the loading
station in question. Since this happened in the full view
of the MSHA inspector who was standing nearby with a company
foreman, the inspector immediately informed the foreman that
he was issuing a citation, the machin.e was de-energized., and
the cable was visually inspected for damage. Since no
damage to the exterior of the cable was detected, the inspector
permitted the shuttle car to continue operating and "abatement"
was achieved by merely instructing the machine operator to be
more careful and to observe his cable.
·
The inspector here conceded that "it was possible" that
the incident was a "freak" occurrence. As a matter of fact,
during his testimony, he had no recollection as to how the
incident occurred. Further, there is no evidence to suggest
that the cable reel was defective, and although the inspector
testified that it was not an unusual occurrence for a trailing

cable to "catch" between the cable compartment lid and the
side of the shuttle car, he took no action to insure that
this would not occur again.
It seems to me that if this
type of "cable hang-up" occurs frequently, the inspector
should have required the respondent to take some preventive
measures to insure that the cable was protected against any
such future·"hang-ups." In short, he required no physical
alterations to the machine or to the cable-reeling device to
insure against other cable ·"hang-ups." As a matter of fact,
when asked this precise question, the inspector responded
-that "I honestly don't remember" (Tr. 611).
After careful consideration of the record in this case,
I cannot conclude that the running over of the cable in
question was other than an isolated one-time occurrence.
Further, based on the testimony and evidence of record, I
cannot conclude that the incident resulted from a failure by
the respondent to insure that the cable was adequately protected against damage. Aside from the fact that the petitioner
has not established that the cable was damaged, there is no
credible evidence to establish that apart from the operator's
inattention or failure to prevent the machine from drifting,
there is no evidence that the respondent here failed to
provide adequate protection to prevent damage to the cable.
Further, there is absolutely no evidence that this respondent
has a history of running over trailing cables, and there is
no evidence to support any conclusion that the machine
operator has done this in the past.
Inspector Wolfe was asked to explain what could have
caused the cable to catch on the machine compartment. His
initial response was that he had no notes on the incident
(Tr. 623). Although he speculated that the incident may have
occurred due to the lack of proper tension on the cable, he
could not support this "theory," even though it happened
right before his very eyes. As a matter of fact, he candidly
admitted that he couldn't state precisely what caused the
"hang-up," other than the machine "drifting" (Tr. 624). When
asked whether he spoke with the machine operator, the inspector
stated that "I don't remember" (Tr. 626). The machine operator
was not called to testify by either side.
After careful review and conside~ation of· all of the
evidence and testimony adduced here, I conclude ~nd find that
the cable incident in question was a one-time inadvertent
incident, and that the petitioner has failed to establish
that the respondent failed to provide adequate protection
to insure against cable damage. Accordingly, Citation
No. 2103085 IS VACATED.

16.95,

Neglig~nce

and Gravity Findings and Conclusions

PENN 83-121
Negligence
I find that the respondent should have been aware of the
fact that the cited shelter hole was obstructed with oil drums
and rock dust bags as noted by the inspector. A preshift
examination should have detected these conditions, and the
failure by the respondent to take the corrective action in
·advance of the inspector's arrival on the scene was due to a
lack of reasonable care. Accordingly, I find that violation
No. 2102696 resulted from ordinary negligence.
Gravity
The inspector testified that the shelter hole was 17 feet
wide and there was room for a person to manuever in and out.
MSHA's counsel pointed out that there was only one person in
the area and that the chances of his having to use the shelter
were slim. Under all of these circumstances, I find that this
violation was nonserious.
PENN 83-129
Negligence
Inspector Shade was of the opinion that Citation No.
2102605 resu1·ted from moderate negligence, and he s.tated that
mine management usually guarded the overhead wires as soon as
possible after that particular condition is brought to its
attention. However, he did not know whether the guards were
down at the time of the preshift examination (Tr. 24).
I find that Citation No. 2102605 resulted from the
respondent's failure to take reasonable care to insure that
the overhead trolley guards which were down were promptly
discovered and the condition corrected before the inspector
arrived on the scene. I conclude that the violation resulted
from ordinary negligence.
With regard to Citation No. 2102619, the testimony and
evidence presented by MSHA and the respondent is not in dispute.
While it is true that the required amount of air was not
reaching the end of the line curtain at the time the citation
was issued, the facts show that the foreman in charge of mining
was aware of the problem and was in the process of taking
corrective action while the inspector was on the section. In

1696

the circumstances, I believe that the foreman was taking
reasonable steps to correct the problem and that the violation
did not result from any negligence on the part of the responden't·.
With regard to Citation No. 2102609, I conclude and
find that the violation resulted from the respondent's
lack of reasonable care to in·sure that the miner who was
under unsupported roof was aware of that fact, and was aware
of the provisions of the roof control plan. While I have
commented that the roof control plan is rather confusing,
it is the respondent's responsibility to insure that miners
~re aware of the plan provisions, particularly that portion
which prohibits anyone from walking out under unsupported
roof. I find that the violation resulted from ordinary
negligence.
With regard to Citation No. 2102611 concerning the
energized light power wires which the inspector found were
not properly hung, the respondent should have been aware
of the cited standard prohibiting the wires from coming into
contact with combustibles. I find that the violation resulted
from the respondent's failure to e~ercise reasonable care,
and that this constitues ordinary negligence.
I conclude and find that all of the violations which
have been affirmed in this docket were serious. In each
instance, except possibly for the two permissibility citations (2102608 and 2102618), where the inspector found that
the lighting circuits on the cited machines were "intrinsicly
safe," the inspector found a hazard associated with each of
the cited conditions (Tr. 38-41; 120). While it may be true
that the permissibility standards in question are specifically
intended to guard against loss of illumination, as ! observed·
during the hearing, the missing bolt brackets in question
could have caused the light fixtures: to fall o~ "t,he q·perators
of the equipment in question while it was tramming, and in
this event they would probably sustain injuries (Tr. 286-309).
Under these circumstances, I conclude that these two citations were also serious.
PENN 83-128
Negligence
I find that Citation No. 2103081 resulted from the
respondent's failure to take reasonable care to insure that
the opening in the battery powered scoop was discovered and
corrected. Accordingly, I conclude that this permissibility
violation resulted from ordinary negligence by the respondent.

1697

Gravity
Respondent's ventilation foreman conceded that mine
ventilation could be interrupted, that methane is liberated
in the mine, and that the opening found in the scoop contactor
compartment is a condition which should have been attended to.
He also conceded that in·any·permissibility violation of
this kind, "Murphy's Law" would apply. Accordingly, I find
that this violation was serious.
PENN 83-136
Negligence
I find that Citation No. 2103084 resulted from the
respondent's failure to take reasonable care to insure that
the missing bolt from the contactor compartment of the
cited roof bolter was discovered and corrected. A preoperational check should have discovered the missing bolt.
I
find that the violation resulted from ordinary negligence.
Gravity
For the same reasons that I found Citation No. 2103081
to be serious in PENN 83-128, I find the violation here is also
serious. While.it is true here that the section may have been
wet and well rock dusted, and no methane was detected, the
missing bolt which caused the permissibility violation presented a hazard of possible arcing an~ sparking in the contactor
compartment when the machine was in operation.
PENN 83-137
Negligence
Inspector Wehr stated that the violation resulted from
a moderate degree of negligence, and he indicated that he has
spoken with mine management about the trolley wire guards so
that they may institute a program of prompt reporting of the
situation.
I conclude and find that the violation resulted
from the respondent's failure to exercise reasonable care,
and that this constitutes ordinary negligence.
Gravity
The missing trolley wire guards in question presented a
possible shock hazard in an area where miners and equipment
would have been present during the ordinary course of business.
Accordingly, I conclude and find that this violation was
serious.

1698

Size of Business and Effect of Civil Penalties on the
Respondent's Ability to Continue in Business
The parties stipulated that the respondent is a large
mine operator and that the proposed civil penalties will not
adversely affect its ability .to remain in business.
I adopt
these stipulations as my findings on these issues, and I
further conclude that the penalties which I have assessed
wil~ not adversely affect the respondent's business •
.]iistory of Prior Violations
Exhibit P-9 is a computer print-out summarizing the
number of violations assessed and paid by the respondent for
violations issued at the Maple Creek No. 2 Mine for the
period December 1, 1980 to November 30, 1982. The printout also reflects the number of assessed and paid violations
before December 1, 1980. The information on the printout is
summarized by reference to the specific mandatory health and
safety standard violated, rather than by any specific violation number. The printout reflects that for the two-year
period noted, the respondent paid $81,036 in civil penalties
for 485 violations. Fifty-two of the violations were for
violations of mandatory standard section 75.200 (roof control),
48 were for violations of section 75.400 (accumulations of
combustibles), and 81 were for violations of section 75.503
(permissible electric fact equipment) .
Exhibit P-10 is a computer printout summarizing the
number of assessed and paid violations at the respondent's
Maple Creek No. 1 Mine for the same time periods noted above
for the No. 2 Mine. The information reflects that for the
period December 1, 1980 to November 30, 1982, the respondent
paid $82,571 for 435 violations. Forty-three citations
were for violations of section 75.200, 41 for violations of
section 75.400, and 52 were for violations of section 75.503.
While I take note of the fact that.the computer
printout information for the violations issued at the No. 1
and No. 2 Mines prior to December 1, 1980, reflect that most
of them were for violations of section 75.200, 75.400, and
75.503, absent any specific time frames or details concerning
the listed violations, I am unable to conclude that this prior
history reflects a good or poor compliance record by the
respondent. Given the size of the respondent's business,
its compliance record for the periods December 1, 1980 to
November 30, 1982, insofar as the bulk of the standards
noted are concerned does not appear to indicate a significantly
poor record. However, I do take note of the number of permissibility and roof control violations and have taken this

1699.

into account in the civil penalties assessed by me for the
violations which I have affirmed in these proceedings.
Good Faith Compliance
The testimony and evidence adduced in all of these
proceedings reflects that al'l of the cited violations were
timely abat·ed by the respondent in good faith. Accordingly,
I have taken this into consideration in the assessment of
the civil penalties for the violations which have been
affirmed1 (Tr. 3401 497-4991 522-523).
I

"Single Penalty" Assessment Arguments
During the course of the hearing, respondent's counsel
argued that in those instances where a "significant and
substantial" finding is rejected by the judge, a $20 civil
penalty must be assessed by the judge. As an example,
respondent's counsel argued that had MSHA's district manager
not been following a policy that all permissibility violations are "significant and substantial," Citation No. 2102608
would have been assessed as a "single penalty" of $20 (Tr.
82). Counsel argued that since the "S&S" finding has been
withdrawn, the civil penalty should "automatically" be
assessed at $20, and that I must give deference to the Labor
Department's regulations for assessing such penalties (Tr.
87-89) •
Section llO(i) of the Act specifically authorizes the
Commission to assess all civil monetary penalties provided
in the Act. Section llO(i) mandates that in assessing these
penalties, the Commission shall consider the six statutory
criteria set forth in that section. While the last sentence
of section 110 (i) vests discretion in th.e Secretary of Labor
to pro~ose civil penalties based upon "a summary review of
the in ormation available to him," and does not require him
to make findings of fact concerning the six statutory
criteria, this discretion does not apply to the Commission,
nor is it controlling in cases docketed before the Commission and adjudicated by its judges.
In any contested civil penalty case, including "single
penalty" assessments, the Commission and its judges apply
the six statutory criteria, and in exercising their respective independent adjudicatory authority, may do so without
consideration of the Secretary 1 s Part 100 regulations.
MSHA's revised Part 100 procedures for proposing civil
penalties under the Act became effective on May 21, 1982,

1700

47 Fed. Reg. 22286-22297. In the explanatory discussions
concerning the Secretary's creation of the "$20 single
penalty" concept as promulgated under 30 C.F.R. 100.4, the
following statements appear at 57 Fed. Reg. 22291:
This is a new.section. It provides for the
assessment of a $20 single penalty for violations
which are not reasonably likely to result in reasonably serious injury or illness. Single penalt¥
violations which are paid in a timely manner will
not be included in the operator's history (emphasis
added). ***Under this proposal, this section
was designated as the "minimum penalty" assessment
procedure. In the final rule, MSHA has substituted
the term "single penalty assessment" to clarify that
$20 is the onl
enalt an o erator could receive
under this section (emphasis added •
As proposed, this section provided for the
assessment of a fixed single penalty of $20 for
violations involving low level gravity and no
negligence (emphasis added). In the notice of
public hearing, MSHA included a refinement of the
proposed single penalty provision which would apply
the single penalty to those violations which are
not reasonably likely to result in a reasonably
serious injury or illness.
In promulgating and adopting.the "single penalty" final
rule now found in section 100.4, an assessment of $20 may be
imposed by MSHA as a civil penalty where the violation is not
reasonably likely to result in a reasonably serious injury or
illness, and is abated within the time fixed by the inspector.
If the violation is not abated within the time fixed by the
inspector, the violation is not eligible for the $20 single
penalty assessment. Thus, it appears that the only requirements for the "automatic" assessment of a $20 penalty is that
the violation be one which is not reasonably likely to result
in a reasonably serious injury or illness, and that the violation is timely abated within the time fixed by the inspector.
It would further appear that the prior proposed additional
finding of no negligence as a condition precedent for such
a $20 assessment has been deleted from section 100.4. Thus,
even if an inspector were to find that there was negligence,
regardless of the degree, the violation would still be
assessed an automatic $20, as long as the two elements noted
above were present (non S & Sand timely abatement).

1701

The Secretary's rationale for apparently deleting any
consideration of negligence by the operator is found at the
following discussion which appears at 47 Fed. Reg. 22292:

* * * when the gravity factor is low and good faith

is established through abatement, MSHA does not
believe that an individualized analysis of the negligence, size and history criteria is appropriate or
necessary.
Thus, in any given case where a violation qualifies for
-a $20 single penalty assessment, even if the inspector finds
that the violation resulted from gross negligence, which is
defined as "conduct which exhibits the absence of the slightest
degree of care," the penalty will still result in an automatic
$20 assessment by MSHA, even though the standard of care
established under the Act imposes on an operator a responsibility for a high degree of care.
MSHA's promulgation and appliqation of the singlepenalty provision found in section 100.4, totally negates
and ignores the statutory criteria of negligence and history
of prior violations. Theoretically, a mine operator who has
paid any number of "non-S & S" violations which resulted
from gross negligence, could continue doing so with impunity,
as long as they are timely abated.
Respondent's arguments that I am bound by MSHA's "single
penalty" assessment regulations are rejected. See: Secretary
of Labor v. United States Steel Mining Co., PENN 82-328,
decided May 31, 1984.
"Significant and Substantial" Arguments
In Secretary of Labor v. Cement Division, National Gypsum
Co., 3 FMSHRC 822 (April 1981), the Commission held that a
violation of a mandatory safety or health standard significantly
and substantially contributes to the cause and effect of a
mine safety or health hazard when "there exists a reasonable
likelihood that the hazard contributed to will result in an
injury or illness of a reasonably serious nature," 3 FMSHRC at
825.
, In National Gypsum, the Commission noted that the Act
does not define the term "hazard," and it construed the term
to "denote a measure of danger to safety or health," 3 FMSHRC
at 827. The Commission also stated that a violtion "'significantly and substantially' contributes to the cause and effect

1702

of a hazard if the violation could be a major cause of a
danger to safety or health. In other words, the contribution
to cause and effect must be significant and substantial."
In Mathies Coal Co., 6 FMSHRC, PENN 82-3-R, etc.
(January 6, 1984), the Commission noted that in order to
establish that a violation of a mandatory safety standard
is significant and substantial under National Gypsum, the
Secretary of Labor must prove:
(1)

the underlying violation of a mandatory
safety Standard;

(2)

a discrete safety hazard -- that is, a
measure of danger to safety -- contributed
to by the violation;

(3)

a reasonable likelihood that the hazard
contributed to will result in injury;

(4)

a reasonable likelihood that the injury in
question will be of a reasonably serious
nature.

During its rulemaking on the revised regulatory criteria
used by MSHA for proposed assessments of civil penalties, the
rulemakers made the following statements with respect to the
application of the term "significant and substantial":
MSHA does not believe that further specific language
governing the inspector's evaluation of hazardous
conditions should be incorporated into the final
rule.

* * * MSHA will carefully review its policy for
uniform application and consistency with this
rulemaking (47 Fed. Reg. 22292, May 21, 1982).
Respondent's counsel asserted that MSHA's District Office
has acted arbitrary in applying an interpretation of the term
"significant and substantial" which goes far beyond the Commission's definition of that term as it was articulated in
Secretary of Labor v. Cement Division, National G¥psum Co.,
supra. Counsel asserted that the inspectors who issued the
violations and found that they were "significant and substantial," followed certain policy directives and instructions
from their MSHA district manager. Respondent's counsel
indicated that this policy is included in the comments made

1703

the Secretary's rulemakers during the considerations which
preceded the promulgation of the revised Part 100 criteria
and procedures for proposed civil penalty assessments.
Respondent's counsel pointed out that MSHA's policy
concerning "S & S" findings is articulated at 47 Fed. Reg.
22292, May 21, 1982, as follows:
MSHA inspectors already make a determination
as to which violations of the Act are of a
serious nature. In making this determination,
inspectors first evaluate whether an injury
or illness is reasonably likely to occur if
the violation is not corrected. Next, the
inspector must evaluate whether the injury or
illness, were it to occur, would be reasonably
serious. In these areas, inspectors use their
experience, background and training together
with an evaluation of the actual circumstances
surrounding the violation to arrive at an
independent judgment. Where a violation is not
reasonably likely to result in a reasonably
serious injury or illness, a summary review and
analysis of the condition or practice is conducted. However, when the gravity factor is
low and good faith is established through abatement, MSHA-does not believe that an individualized
analysis of the negligence, size and history
criteria is appropriate or necessary.
Inspector Shade explained his interpretation of an
"S&S" violation as follows (Tr. 64-71):
'
ADMINISTRATIVE LAW JUDGE KOUTRA;S: Let me ask
the inspectors up front. What instructions,
if any, do you receive from your district
off ice as to how you interpret S&S?
THE WITNESS: When we find a violation and we
see it is reasonably likely that an accident
would occur, that an accident would occur and
it is reasonably likely that the accident
would be serious before it could be terminated.

*

*

*

*

*

Q. Mr. Shade, isn't it true that your instructions are that you are to assume every violation
will never be corrected?

A. Before it can be terminated, before it can
be corrected, if we find a violation and we see
that this violation will not be corrected in
one night, we issue a citation.
Q.
Isn't it tru~ yo~ are supposed to base
your determination as to what is a significant
and substantial violation on an assumption
that the condition will never be corrected?

A.

This was one of the criteria of S&S, but -

ADMINISTRATIVE LAW JUDGE KOUTRAS: I do not
understand how anybody can come to the conclusion of an assumption that a violation found
by the inspector will never be corrected.
"MS. SYMONS: I don't, either, but that is what
they have been instructed to do.
THE WITNESS: They said before it can be corrected,
if we wouldn't find.this violation, they assumed
that this violation would not be corrected, so it
would stay in the same position as if it wasn't
found.
When asked to explain the procedures he follows in making
a determination as to whether a violation is "S&S," Inspector
Shade testified in pertinent part as follows (Tr. 423-433):
THE WITNESS: Well, we see a violation, and we
usually have an escort with us, and we discuss
the violation with the escort, but as far as
information on it, whenever we have a violation
that we think could cause an accident before this
could be corrected or if it weren.' t corrected,
then we have to mark S&S. These are our
instructions.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Ms. Gismondi,
I just don't understand that. Their instructions are, when they find a violation, they act
under the assumption that had the inspector not
found it, the mine operator would find it and
likely not do anything about it, and therefore,
since the inspector caught it and forced them
to correct it through the citation process, that
it is S&S •.

1705

The citation process itself requires the operator to abate. He is subject to withdrawal order,
and if he doesn't abate it, then he is given a
$1,000 a day penalty. I just don't understand
this theory.

*

*

*

*

*

MS. GISMONDI: I don't think it's so much a
question, Your Honor, that the inspector assumes
that the violation is not going to be corrected.
ADMINISTRATIVE LAW JUDGE KOUTRAS:
he just said.

That's what

MS. GISMONDI: Well, what I'm trying to say it,
I think that the significant and substantial
determination is intended to be and is, in fact,
keyed into the facts of the violation and the
facts that are in existence at the time that it
is cited and that can reasonably be expected.

*

*

*

*

*

ADMINISTRATIVE LAW JUDGE KOUTRAS: Mr. Shade, what
are your instructions as you understand them on
S&S? What is your understanding of how you are
to approach marking a violation S&S?
THE WITNESS: If this violation is reasonably
likely to cause an accident.
ADMINISTRATIVE LAW JUDGE KOUTRAS: Now, what
instructions do you have to determine whether
or not it is reasonably likely?
THE WITNESS: Let me finish.
It is reasonably
likely that it could cause an accident and that
it is reasonably likely that it would be a
serious accident if it were not corrected.
ADMINISTRATIVE LAW JUDGE KOUTRAS:
not corrected?
THE WITNESS:

If it were

That's right.

ADMINISTRATIVE LAW JUDGE KOUTRAS: What does
that mean? What is your understanding of "if
it is not corrected"?

170G

THE WITNESS:

If the violation wasn't corrected.

ADMINISTRATIVE LAW JUDGE KOUTRAS: Well, how
can it not be corrected if you are there citing
it? How is it not going to be corrected? How
can the operator refuse to correct a violation
that you have cited?
THE WITNESS: Well, they don't refuse to correct
it as far as that goes.
ADMINISTRATIVE LAW JUDGE KOUTRAS:
language play.

How does that

THE WITNESS: Well, to me it means that if it
weren't corrected at any time.
ADMINISTRATIVE LAW JUDGE KOUTRAS: That presupposes that it existed for some period of
time; isn't that true?
THE WITNESS: Yes, or that it would exist for
some period of time. To me,'that is what it
means.
ADMINISTRATIVE LAW JUDGE KOUTRAS: So, in
this case, had you not been there on January·
13th to issue this citation, you are telling
me that that violation probably existed that
day and the next day, and then when you went
in there and, let's assume you went in there
on the 15th and found it, that you would find
it S&S, because it hadn't been corrected?
THE WITNESS:

Yes.

ADMINISTRATIVE LAW JUDGE KOUTRAS: Do you
understand, Miss Gismondi, what that means?
MS. GISMONDI: I'm not sure I understood just
that little bit of dialogue.
ADMINISTRATIVE LAW JUDGE KOUTRAS: He said
that his instructions are he marks S&S on
the theory that the violation would not be
corrected. That's part of the formula.
What does that mean?

1707

MS. GISMONDI: Well, I think that is the
general terminology that is used in MSHA
policies, but probably unfortunate, I think,
that what it means -ADMINISTRATIVE LAW JUDGE KOUTRAS: Tell me
what it means •. There is enough bureaucratic
policies around that you and I don't understand. Is it written someplace? I want to
know what it means.
MS. GISMONDI: I'm sure there is some kind of
letter or statement of what the policy is
written somewhere.
ADMINISTRATIVE LAW JUDGE KOUTRAS:
what it means in your mind.

Tell me

MS. GISMONSI: What it means in my mind is that
you make an S&S determination on the
basis of the condition that you observe
and that you cite.
ADMINISTRATIVE LAW JUDGE KOUTRAS:

All right.

MS. GISMONDI: Now, obviously when you observe
it and when you cite it, it is not corrected.
I think that the inspector is, you know, this
stuff about whether or not it's going to
remain uncorrected forever, I think is misleading.
I think that the question is, you know, what
is the likely effect of this ~iolation as
I'm looking at it, you know, a,s I cite it. As
I said, obviously as you are citing it, it is
not corrected. It is what it is ...
ADMINISTRATIVE LAW JUDGE KOUTRAS:
S&S at that point?

And is it

MS. GISMONDI: I think it depends on the factors
that we are talking about.
ADMINISTRATIVE LAW JUDGE KOUTRAS: What could
happen if the inspector didn't appear and cause
him to correct it?

1701;

MS. GISMONDI:

Exactly.

THE WITNESS: . As far as S&S is concerned, it
is not necessarily permissibility. we have
to look at it, first of all, is it a violation? If it's a violation, either the condition at the time or in our own knowledge
through training and experience and using the
entire country, you know, things that have
happened throughout the entire country, let's
put it that way, if the event should occur
that we are citing, could it cause an injury
or an illness?
Now, if it passes that test .that we feel that
it could create an illness or an injury,
which we have also been instructed that that
means that should a person lose one day's work
or have to be reassigned for one day from his
normal duties, then it would be considered
a significant or substantial type injury, then
it becomes S§iS.
BY MS. SYMONS:
So that any violation which could result
in an injury over any period of time is
significant and substantial?

Q.

A.
Well, I left that out, I'm sorry. When
we look at the violation, we also must in our
own mind say, if the condition were left
uncorrected-Okay, are you supposed to, give any effect
to the surrounding circumstances?

Q.

A.
Well, there is some consideration given to
the condition that we. find, yes.
Additional Findings and Conclusions
Significant and Substantial Violations
PENN 83-129
Citation No. 2102605
Inspector Shade made his "S&S" determination because of
the lack of overhead guarding on the trolley wire at the

"A Flat 6 Chute track switch." He determined that the violation was "S&S" because the wire was energized, it was
five and one-half feet off the ground, and was located
where the locomotives, jeeps, and other personnel carriers
passed under the unprotected overhead wire. His concern
was that someone standing up in the carriers, or alighting
from the carriers, could contact the unguarded wires.
Respondent does no~ dispute the fact that the guarding
normally in place for the overhead wires had fallen or been
knocked down, and that the trolley wire in question was not
guarded or protected.
On the basis of all of the evidence adduced here, I
conclude and find that the inspector's "S&S" finding is
clearly supportable. The overhead trolley wire was not
guarded, men and equipment regularly ran under it, and it
would not be too difficult for a miner to reach up and
contact the wire or inadvertently come into contact with it
while riding in a conveyance or alighting from it when it
stopped under the unguarded wire. Here, the inspector's
"S&S" finding is rational and supportable, and IT IS AFFIRMED.
Citation No. 2102611
In this instance Inspector Shade found that the violation was "significant and substantial" because he believed
that the light wires which were in contact with the wooden
cribs and roof coal presented a fire hazard.
In his view,
in the event of a roof fall, the wire could be broken or
damaged, and a short would result, thereby posing a fire
hazard.
Inspector Shade believed that the mine was idle at the
time the citation was issued. While he is not an electrician,
he confirmed that the wires were fully insulated, he
observed no breaks, and the wires were not rubbing in any
way. He could not state whether there. was any tension on
the wires, and he conceded that he had no reason to believe
that the cited conditions would not have been discovered
during the regular weekly electrical inspection. He
admitted that he did not check the preshift examination
books, and had no idea how long the cited conditions had
existed.
I conclude and find that Inspector Shade's belief that
the roof would fall at some unspecified time in the future,
thereby possibly damaging the wire and causing a fire is

l '710

speculative and unsupported. Given the aforementioned conditions which the inspector observed, I cannot conclude that
it was reasonably likely that the wire resting on the crib
or in contact with the roof presented the likelihood of an
injury or hazard. While I have affirmed a violation of the
cited safety standard, and have concluded that it was
serious, I cannot conclude that it was significant and
substantial. Accordingly, the inspector's finding IS
REJECTED, and IT IS VACATED.
Citation No. 2102609
On the facts surrounding this particular violation, I
cannot conclude that the inspector's "S&S" findings are
~,
supportable. Here, the area was roof bolted and additional
support was provided along the left rib by means of roof
jacks. The period of time which the miner spent under
unsupported roof was at most a few seconds. When he walked
out to install a jack, he was in full view of the inspector
and a foreman, and he was immediately called back out.
Given the fact that MSHA itself concedes that miners must
go under,unsupported roof to install roof supports,
critical factors which must be considered include the
amount of time a miner is under unsupported roof, the overall roof conditions, and whether or not the immediate area
is supported. Here, I am convinced that the inspector made
an "automatic" "S&S" finding simply because it involved
roof support. Given the facts here, I find that the
inspector's finding of "S&S" is unsupportable, and IT IS
REJECTED and VACATED.
Citation No. 2102619
In this case, prior to the start of mining, the
inspector and the foreman on the scene were both aware of
the fact that the amount of air at the end of the line
curtain was less than the required amount. The foreman
took immediate remedial steps to insure compliance, and
based on his air readings, more than the required amount
of air was achieved and the inspector left. However, when
he returned, an interruption to the air flow, caused by
a collapsing curtain, and which had not been detected by
the miners in the work area, caused the air flow to diminish.
When informed of this fact, the foreman immediately discovered the problem and corrected it. Given these circumstances, I cannot conclude that the violation was "S&S."
Given all of the prevailing circumstances, I fail to understand how the inspector could conclude that an injury or

1711

accident was likely to occur. Here, both the inspector
and the foreman were both aware of the problem from the
outset, and steps were quickly taken to correct the problem.
I am convinced that the inspector here found an. "S&S"
violation on the basis of his belief that all such violations
are "S&S." This theory of "S&S" is rejected.
I conclude
and find that the inspector must consider the prevailing
conditions as well as the fact that the operator is on top
of the problem and is attempting to make corrections.
_Accordingly, on the facts here presented, the inspector's
"S&S" finding IS REJECTED, and IT IS VACATED.
PENN 83-128
Citation No. 2103081
In this case, Inspector Wolfe found that the citation
was "significant and substantial" because he believed that
the opening in the contactor compartment of the scoop which
was cited posed a potential hazard of a methane ignition.
Mr. Wolfe "believed" that no methane was detected in the
area, that the ventilation was good, and that "it could
well be" that the scoop was three crosscuts outby the last
open crosscut. However, the scoop was often used for cleanup
details and the hauling of supplies, and was used at the
face.
Given these variety of uses, as well as the fact that
the scoop was required to be examined weekly, I believe it
was reasonably likely that the loosened bolt which rendered
the machine non-permissible would have gone undetected.
Coupled with the fact that the mine had previously experienced methane face ignitions, and the fact that the mine is
on a section-30l(i) "spot inspection status" because of the
amount of methane liberated, I cannot conclude that the
inspector's "S&S" finding is unsupportable. As a matter of
fact, in this instance, respondent's ventilation foreman
Ritz expressed concern about an uncorrected permissibility
violation of this kind, and he confirmed that ventilation
can be interrupted at any time, and that the presence of
methane is unpredictable. The "S&S" finding by Inspector
Wolfe IS AFFIRMED.
PENN 83-137
Citation No. 2102681
Inspector Wehr made an "S&S" determination on the basis
of his belief that an unguarded trolley wire could be contacted by a miner during the course of his regular travel in

1712

the mine, whether it be by motorized conveyance or on foot.
The guarding which was normally in place had been knocked
down, an~ the inspector was concerned that a miner riding in
one of the conveyances which normally passed under the wire
could come in contact with-the wire.
Inspector Wehr testified that he was concerned that a
person running a locomotive could come in contact with the
overhead unguarded wire while passing under it, and that
shock or fatal- injuries could result (Tr. 338). He also
indicated that.with the amount of traffic passing under the
-wire, it was reasonably likely that someone could come in
contact with the unprotected wire (Tr. 339) •
While it may be true that trolley poles do become dislodged from track haulage equipment from time-to time and
that overhead guarding for trolley wires is a constant
problem in the mine, the fact is that the respondent here
does not dispute the fact that the cited trolley wire was
not guarded. Further, based on the credible testimony by
the inspector, which has not been rebutted by the respondent,
it seems clear to me that men do pass regularly under the
wire which was not guarded at the time the inspector observed
and cited it. Given the fact that someone could readily
contact or reach the unguarded energized wire, I conclude
and find that the inspector's finding of "S&S" is supported.
Accordingly, his finding in this regard IS AFFIRMED.
PENN 83-136
Citation No. 2103984
In this case, Inspector Wolfe issued the citation after
finding that one of the bolts which secured the lid to the
main contactor compartment of a roof bolter was missing.
With regard to his "S&S" finding, the parties agreed to
incorporate Mr. Wolfe's prior testimony .. regarding the permissibility violation concerning a scoop (Citation No.
213081), in support of his "S&S" finding concerning the roof
bolter.
In defense of the citation, the parties agreed to
accept a proffer by respondent's witness Ritz that the roof
bolter in question was parked two blocks outby the last
open crosscut when the inspector cited it, and that at the
time the inspector observed the cited condition the section
was wet and well rock dusted, that the ventilation was good,
and that no methane was detected on the section.

1713

In the previous scoop violation, the facts established
that there was an opening in the contactor compartment which
could have admitted methane, thereby sparking an ignition.
In the instant case concerning the roof bolter, Mr. Wolfe
confirmed that there was no opening present (Tr. 583) •.
However, he believed that with the use of the machine, the
heating and cooling process would allow methane to be drawn
into the compartment. When asked how this was possible if
th~re were no opening, Mr. Wolfe alluded to a possible
warping process caused by "an ignition inside the compart- men t" (Tr • 5 8 5 ) •
In response to further questions, Mr. Wolfe could not
state how many bolts were required to be on the compartment.
He "guessed" at a number between 18 and 24. While explaining
his "flame path" theory, he "guessed" that the flame path for
the particular compartment size in question was an inch and
one-half, but he was "not sure," and simply stated that "it
was close enough" (Tr. 586).
Further examination of the record with regard to this
citation leads me to conclude that Inspector Wolfe made his
"S&S" finding on the basis of his general belief that methane
ignitions have resulted from permissibility violations. He
conceded that in making his "S&S" determinations, he does
not necessarily consider the particular prevailing mine conditions, and in fact conceded that he had no idea as to those
conditions which may have prevailed when he issued the
citation (Tr. 587-589).
On the facts in this case, I am convinced that Inspector
Wolfe made his "S&S" determination on the assumption that
this particular permissibility violation was per se "S&S,"
and that he did so on the speculative assumption that all
permissibility violations cause methane ignitions. Given
these circumstances, and the facts surrounding this particular citation, his "S&S" conclusions are simply not supportable.
Accordingly, his finding in this reg~rd IS REJECTED, and his
"S&S" finding IS VACATED.
Penalty Assessments
On the basis of the foregoing findings and conclusions,
and taking into account the requirements of section llO(i) of
the Act, I conclude and find that the following civil penalty .
assessments are appropriate for the citations which have been
affirmed:
·

PENN 83-121'
Citation No.

Date

30 CFR Section

Assessment

2102696

1/12/83

75.1403

$115

Citation No.

Date

30 CFR Section

Assessment

2102605
2102608
2102618
2102611
2102619
2102609

1/7/83
1/12/83
1/24/83
1/13/83
1/24/83
1/12/83

75.1003
75.503
75.503
75.516
75.316
75.503

$205
125
150
120
75
125

Citation No.

Date

30 CFR Section

Assessment

2103081

1/19/83

75.503

$300

Citation No.

Date

30 CFR Section

Assessment

2102681

12/14/82

75.1003

$225

Citation No.

Date

30 CFR Section

Assessment

2103084

2/8/83

75.503

$125

PENN 83-129

PENN 83-128

PENN 83-137

PENN 83-136

ORDER
Respondent IS ORDERED to pay civil penalties assessed
by me for the violations in question, in the amounts shown
above, and payment is to be made to MSHA within thirty (30)
days of the date of th~se decisions and Order. Upon receipt
of payment, these proceedings are dismissed •
•

/A
,;/L-./>~tu/,~ f ~
r2~g

~ ~fras

,/Admin strative Law Judge

L

1 115
1

Distribution:
Janine C. Gismondi, Esq., Office of the Solicitor, U.S.
Department of Labor, 3535 Market St., Philadelphia, PA
19104 (Certified Mail)
.

.

Louise Q. Symons, Esq., U.S. Steel Mining Co., Inc.,
600 Grant St., Pittsburgh, PA 15230 (Certified Mail)

/ejp

1716

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

JUL 111984

CONTEST PROCEEDING

WESTMORELAND COAL COMPANY,
Contestant

Docket No. WEVA 83-260-R
Order No. 2147582; 8/10/83

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

Hampton No. 3 Mine

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

CIVIL PENALTY PROCEEDING
Docket No. WEVA 84-75
A.C. No. 46-01283-03530

v.

Hampton No. 3 Mine

WESTMORELAND COAL COMPANY,
Respondent
DECISIONS
Appearances:

Kevin McCormick, Esq., U.S. Department of
Labor, Office of the Solicitor, Arlington,
Virginia, for Petitioner/Respondent;
F. Thomas Rubenstein, Esq., Westmoreland
Coal Company, Big Stone Gap, Virginia, for
Contestant/Respondent.

Before:

·Judge Koutras
..

Statement of the Proceedings
These consolidated proceedings concern a proposal for
assessment of a civil penalty filed by MSHA against
Westmoreland Coal Company pursuant to section llO(a) of
the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
820(a), seeking a civil penalty assessment for an alleged
v.iolation of mandatory safety standard 30 CFR 75. 523. The
alleged violation was stated in a section 104(d) (2) Order
served on Westmoreland by MSHA Inspector Vaughan Garten
on August 10, 1983.

1717

Westmoreland Coal Company contested the civil penalty
proposal, and also filed a separate notice of contest pursuant
to section lOS{d) of the Act challenging the validity of the
order. The cases were consolidated for trial in Madison, West
Virginia. The parties were afforded an opportunity to file
post hearing arguments, and they have been considered by me in
the course of these decisions. ~/
Issues
The issues presented in these proceedings include the
validity of the order, whether the alleged violation resulted
from an unwarrantable failure by Westmoreland Coal Company to
comply with the cited mandatory standard, and whether or not
the violation was significant and substantial.
Assuming the alleged fact of violation is established by
a preponderance of the evidence, the question next presented
is an appropriate civil penalty to be assessed for the violation taking into account the criteria found in section llO{i)
of the Act.
Applicable Statutory and Regulatory Provisions
1.

The Federal Mine Safety and Health Act of 1977, 30

2.

Sections llO{a), llO(i), 104{d), and lOS{d), of the

3.

Commission Rules, 29 CFR 2700.1, et seq.

u.s.c. 301, et seq.
Act.

Stipulations
The parties stipulated to the following:
1. Westmoreland Coal Company is subject to the
jurisdiction of the Commission and the Act, and
the presiding judge has jurisdiction to hear and
decide these cases.
·
2. MSHA Inspector Vaughan Garten is a duly
authorized representative of the Secretary of
Labor, MSHA, and acted in this capacity when he
served the contested order on a representative
of the contestant/respondent.
3. The subject contested order was properly
served, and a copy may be admitted as a part of
the record in these proceedings.

*/ MSHA filed a brief, but Westmoreland opted not to.

1718

'

4. Westmoreland Coal Company is a large mine
operator. It's overall coal production for
the year 1982 was approximately 12,642,000
tons. The 1982 coal production for Westmoreland's
Hampton No. 3 Mine was approximately 490,000
tons.
5. The proposed ·civil penalty for the contested
violation will not adversely affect Westmoreland's
ability to continue in business.
6. The conditions cited as a violation were timely
abated in good faith by the respondent/contestant.

7. The history of prior violations for the
Hampton No. 3 Mine is reflected in a computer
print-out, exhibit G-2, and it may be admitted as
part of the record in these proceedings.
Counsel for Westmoreland stated that he does not now
challenge the fact that the required precedent underlying
section 104(d) citations or orders to support the order
issued in these proceedings were issued by MSHA inspectors.
Accordingly, counsel stipulated that the contested order
was procedurally valid. However, he indicated that he
was not waiving or otherwise admitting his contention that
the violation did not constitute an unwarrantable failure
and a significant and substantial violation.
Discussion
Section 104(d) (2) Order No. 2147582, 10:20 a.m.,
August 10, 1983, citing a violation of 30 CFR 75.523,
states the following condition or practice:
The panic bar provided for the No. 19
Joy Standard drive shuttl'e car operating
in the 018-1 7 Left Section was not
being maintained in an operative condition
in that when tested said-device would not
deenergize said shuttle car in the event
of an emergency.
The inspector found that the violation was "significant
and substantial," ~nd ordered the withdrawal of the shuttle
car from service.

1719

The inspector cited a previous order, No. 2140708, 'issued
on February 18, 1983, as the "initial action," underlying the
order which he issued on August 19, 1983.
Order No. 2147582 was abated at 11:25 a.m., August 10,
1983, and the abatement action states:
.

.

Panic bar was repaired and now will deenergize said equipment.
MSHA's Testimony and Evidence
MSHA Inspector Vaughan Garten testified as to his duties,
experience, and training, and he confirmed that he has worked
as a mine foreman and holds mine foreman's and fire boss certificates issued by the West Virginia Department of Mines. He confirmed that he is familiar with the subject mine, that he was
assigned to inspect it for approximately a year beginning in
October 1982, and he described the mine as a slope and deep mine.
Coal is mined with continuous miners and a beltline, and the
mine ha.s five active sections. The roof averages six-feet high,
and spot inspections for methane are conducted at the mine (Tr.
9-13).
Mr. ·Garten confirmed t~at he conducted an inspection at the
mine on August 10, 1983, and the inspection was a continuation
of a general inspection which began on August 1, 1983. After
arriving at the mine on August 10, he met with the mine superintendent, mine foreman, and chairman of the union safety committee,
checked the pre-shift, on-shift, and weekly equipment books for
the 7 left section, and he then proceeded to that area. Upon
arrival, the section foreman asked him if he was going to inspect
any equipment, and when Mr. Garten answered in the affirmative,
the foreman requested him to check the Nos. 17 and 19 shuttle
cars which were on the section (Tr. 13~15).
Mr. Garten stated that upon inspection of the No. 19 shuttle
car he found that the panic bar was inoperative in that it could
not be pressed down to deenergize the machine. 'The panic bar
was located alongside the operator's shoulder or lower part of
his arm, and Mr. Garten explained that the bar should be able to
deenergize the machine by the operator leaning over against it
or hitting it with his hand. Fifteen pounds of pressure are required to deenergize the machine, and the bar should only travel
about two inches for this to occur. He found that the bar was
"fouled" by a piece of metal at one end, and this would not allow
the bar to go in the downward motion when it was hit. In order
to activate the bar one had to reach and pull the bar forward,
then "mash it down" (Tr. 15-17).
Mr. Garten stated that the section foreman and the union
safety committeeman were with him when he tested the panic bar,

1720

and when they both tried it and observed that it would not work
and could not operate it the way it was designed to operate,
Mr. Garten then issued the order, and served it on Ted Forbes
(Tr. 1 7-18) •
Mr. Garten stated that the No. l~ shuttle car was energized
and inby the section dumping point at the time the violation was
issued, and that the section was not active and coal was not being mined (Tr. 18, 23). However, he stated that the section was
preparing to mine coai, and that from speaking to other miners,
he determined that coal was mined on the previous shift. He
also confirmed that the section was an active pillar section,
and although the prior shift was not a production shift, and he
could not state why coal would have been mined on this prior
shift, Mr. Garten stated that "due to it being a pillar section,
you cannot let a pillar section set idle for a period of time"
(Tr. 2 0-21) •
Mr. Garten stated that the shuttle car is a self-propelled
electric car which is in the active workings of the mine, and
that it is not equipped with a substantially constructed cab.
He also indicated that the respondent has not applied to MSHA
for approval of a device in lieu of the panic bar to deenergize
the shuttle car. In his opinion, the car which he cited did not
have a panic bar which allowed for a quick deenergization of
the machine (Tr. 21).
Mr. Garten stated that the problem was corrected by cutting
the metal from the area which fouled the panic bar, and after
this was done it performed the way it was designed to (Tr. 22).
Mr. Garten confirmed that the shuttle car was used on a
regular basis in a heavily worked or frequently traveled area,
and he believed that the condition should have been discovered
by the required weekly electric haza~ds examination • . He also
believed that the electrician or section ·foreman should have
been aware of the condition because the electrician should have
checked all of the working components of . the car. However,
Mr. Garten confirmed that he found no notation of the condition
in the electrical examination book (Tr. 23).
Mr. Garten believed that the violation was unwarrantable
because the condition should have been known to mine management.
He confirmed that the machine operator should have checked the
car and reported the condition to management (Tr. 23).

Mr. Garten noted that the respondent's negligence was
"moderate" because "management should have·been aware of this
condition, but there could be mitigating circumstances behind
it" (Tr. 24). He believed that it was reasonably likely that
the cited condition would lead to an accident, and that any

resulting injuries "could be permanently disabling or maybe
fatal" (Tr. 24). He confirmed that the purpose of the panic
bar is to stop the shuttle car in the event of an emergency,
and he believed that the operator or a miner working in the
section would be affected if an accident were to occur. The
operator could be crushed against a rib, and miners could be
run over if the machine "got away" and could not be stopped
(Tr. 26) •
On cross-examination, Mr. Garten state_d that on prior inspections he would have examined the shuttle car in question,
:Qut that the panic bar was operating properly. The only difference he found on August 10, 1983, was the piece of metal
which had been welded on and which prevented the bar from working (Tr. 27). He did not observe the metal piece during prior
inspections, -and he believed that it had been added since the
time he last inspected the car.
Mr. Garten confirmed that he tested for methane on
August 10, 1983, and found none present. He stated that he
did not test the panic bar, but asked the machine operator to
test it while he observed him and he confirmed that the operator
did deenergize the machine at that time, and he clarified his
previous direct testimony as follows (Tr. 29-30):

Q Did you not earlier testify that the panic
bar was totally inoperative, the piece of metal
would prevent it from actuating?
A The piece of metal did prevent it from
working properly. The way he designed it, or would
test it -- he'd pull the bar forward, then mash it
down.
I talked to that man and told him that wasn't
the way it was designed to work.

Q Your testimony is the panic bar would somehow slide?
A

Yes.

Q How did the piece of metal cause it to not
work if the bar was sliding? Was there only one
particular spot it would get in and not work?
A The piece of metal, the way it was situated,
it would prevent the bar from going in a downward
motion. Now, you could slide the panic bar forward
and it would free itself from the piece of metal.
Then you could mash it down.

Q
forth?

What would cause the bar to slide back and
Aren't those things fairly rigid?

1722

A

The majority of them, right.

Q

What position would the bar normally be

A

What are you referring to?

in?

Q Would it not oftentimes be operative if it
was slid away from where the piece of metal would
catch?
A There would be circumstantial factors that
plays in that, because a lot of times a panic bar
designed on a piece of equipment will slide forward
and slide back, but they have a piece of metal
welded on so when it comes down, it comes in contact with the switch --

Q How big is that switch? How big's the
piece of metal in width that we're talking about?·
A

I'd say two to three inches.

Q So we're talking about a two to three inch
area? In that particular area, the panic bar woµld
work? The piece of metal would not prevent it from
operating.
It would have to be within the range of
that two to three inch area?
A

Right.

Mr. Garten stated that the piece of metal behind .tne bar
was approximately 2 to 3 inches and that the bar would have to
be in this area for it not to operate properly (Tr~ 36). He
stated that maintenance foreman Harold.Vanhorn came to the
machine after it was cited, and the panic bar would not operate.
Mr. Garten stated that he advised Mr. Vanhorn that the bar would
have to be repaired so that i t deenergized the machine by someone's body simply coming into contact with it and without the
necessity of someone making any other kind of motion to activate the bar. Although Mr. Garten did not point out the p!ec~
of metal to Mr. Vanhorn, Mr. Garten·stated that Mr. Vanhorn observed the problem and that he cut the metal off with a torch
(Tr. 31) •
Mr. Garten stated that the piece of metal which impeded
the bar served no other purpose than to prevent the bar from
working. He has never observed a Joy standard drive shuttle car
which could also be deenergized by means of a rear lever which
could activate the emergency car braking system (Tr. 32).

1723

Mr. Garten indicated that if the car operator knew of the
condition o.f the panic bar this would constitute mitigating circumstances, but that he had no reason to believe that this was
the case (Tr. 32). He also indicated that the shuttle car's
movement is limited to an area within its 500 foot cable (Tr. 32).
In response to further questions, Mr. Garten stated that he
also inspected the No. 17 car but found no piece of metal impeding the panic bar, and that it worked properly (Tr. 33).
And, at (Tr. 36-37):
Q Did you actually climb into the equipment
yourself to test the panic bar?
A Right.
I showed him
the operator himself -- I showed him how the panic bar was supposed
to work by just le·aning into it.

Q So once it became disengaged or pulled away
from the metal .piece that.was there, then you could
lean into it and it would go down and do what it
was supposed to do?
A That is if you held it up, slid it forward,
Your Honor.

Q · I'm saying once it was away from the metal,
once someone pulled it away from there, then you
could lean into it and it would deenergize it?
A No. You had to keep holding it forward.
Once you let go of it, it would slide back.

Q Did you ever determine whqt that was all .
about? I mean, did someone deliberately weld a
piece of metal on there to allow someone to manipulate the panic bar in the way you described it?
A

I hope not.

I don't think.

Q Well, how did the metal mysteriously appear
on that particular machine when it wasn't on the
other one?
•

A

I don't know, Your Honor •

Q You don't.know what it did, what its function was?
A

No, sir.

Q Did anyone from management offer any explanation as to what that piece of metal was doing
there?

A One of them -- I' think it was Harold Vanhorn
stated maybe they used that as some kind of a stop.
Now, so far as what he was referring to, I could not
Q Is that panic bar -- I mean it's right in
the cab, right, right next to the operator?
A

Yes, sir.
Respondent/Contestant's Testimony

William Roberts testified that he is employed at the mine
as a union electrician, and that his duties include performing
electrical and mechanical maintenance on mine equipment. He confirmed that he was familiar with the No. 19 Joy standard drive
shuttle car which is the subject of these proceedings, including
the panic bar. He stated that he personally checked the panic
bar in question the day before the violation was issued, and
when he checked it with the car energized, the panic bar worked
(Tr. 51).
Mr. Roberts explained the operation of the panic bar, and
he confirmed that the car also contained a valve in the car deck
which automatically locked when the machine lost power. The
valve was activated by a metal flap welded on the panic bar itself, and it was always on the cars used at the mine. Mr. Roberts
confirms that he never received any complaints from car operators
concerning inoperative panic bars (Tr. 53).
On cross-examination, Mr. Roberts confirmed that he checked
the panic bar in question while seated in the cab, and after
starting the pump motor he pushed down on the bar and it operated. He stated that he checked the car during the day shift.
He could not recall testing the bar by simply leaning into it,
and he remembered simply pushing the bar down by simply hitting
it down (Tr. 55). He did not check the No. 17 car because he is
assigned only to the No. 19 car. However, he stated that he has
observed the No. 17 car and that it has a metal lip on the bar
(Tr. 56). The purpose of this piece of metal or "lip" is to
serve as an alternative method of activating the emergency braking system, and that this was also the reason why it was on the
No. 19 car (Tr. 56).
Mr. Roberts stated that he has observed car operators
activate panic bars by ·leaning against them with their arms and
he has never seen anyone pulling it in any direction and then
depressing it (Tr. 57).

Mr. Roberts identified Exhibit C-1 as pages from the electrical equipment examination book of August 5, 1983, but he
could not confirm his signature, nor could he recall whether
he reported anything that day (Tr. 59). He also identified his
signature ort the report for August 12, 1983, and he again confirmed that he inspected the No. 19 car on that day (Tr. 60).
In response to further questions, Mr. Roberts stated as
follows (Tr. 65-69):
BY JUDGE KOUTRAS:

Q Mr. Roberts, let me ask you a hypothet~cal
question now. Okay? You climb into a particular
shuttle car to examine it one day, you're sitting
there and you decide to check the panic bar. Okay?
A

Yes, sir.

Q You reach over and slide it and lift it and
then hold it down and it deenergizes the equipment,
okay?
A

Got it.

Q In your mind, is that panic bar functioning
properly?
A

No, sir.

Q

Why?

A Because you've got to go straight down position with it before it will deenergize the switch
and the braking system.

Q

What does that mean to you now, straight

A

It means it's working.

Q

Didn't it go straight down in my hypothetical?

down?

A No, not if you have to pull on it and push
to get it in ~osition.

Q All right. Were you there when the inspector
in this ca~e issued this particular order on August 10?
A

I was on the section, not at the buggy.

1'i26

Q
order?

Do you have any idea why he issued this

A No, sir.
Q Has anyone ever told you why he issued
this order?

A

That it wouldn't work.

Q

Did they tell you why it wouldn't work?

A

I don't think so.

Q But you're the man that's responsible for
checking it?

A Yes, sir.
On this, the same 'shift he issued the
citation on?
Q

A Yes, sir.
Q

And your curiosity wasn't aroused?

A No, sir.

* * *
Q Were you involved in the abatement of this
particular citation?

A No, sir, I don't think so~

* * *
Q The lip wouldn't keep the ba-r from going
down to touch the actual deactivation device?

A Well, it's a possibility it could have got
something happened to it in twenty-four hours~
but like I say, the day before, the panic bar was
checked because I personally checked it.
Q

You leaned into .:it and there was no problem?

A .I don't remember if I leaned into it or how
I shut it off, but anyhow, I just shoved it or leaned
into it, or whatever, and it went off.

Q But you don't remember specifically how you
did it?

A No, sir, but I remember that it worked like
it's required to work.
Q What is your. idea about how it's required
to work?

A Just push down on it and it deenergizes
the motor.
Harold Vanhorn, assistant maintenance foreman at the subject
mine, testified that he was responsible for the supervision of
maintenance on the 7 Left Section on August 10, 1983, and he confirmed that he was summoned to come to the area after the violation was issued. He stated that he got into the shuttle car after
energizing it, and that the panic bar operated properly and deenergized the car when he used it (Tr. 72). He indicated that
Mr. Garten got into the car and tried the panic bar, but because
of his height when he leaned against it, it did not work.
Mr. Vanhorn then adjusted the spring so that the panic bar
"would be down a little bit for him." When the bar hit the piece
of metal, which was a lever for a park brake, Mr. Vanhorn removed it (Tr. 72-73).
Mr. Vanhorn testified that the lever in question was an
alternate method of setting the parking brake, and that it was
always attached to the panic bar (Tr. 74). He confirmed that
the No. 17 car had a similar lever, and that both cars came
equipped that way (Tr. 75). Mr. Vanhorn stated that after he
adjusted the spring on the bar to lower it to suit Mr. Garten's
height, and he indicated that individual car operators always
wanted to adjust the bars to suit their own height and that this
was a "big controversy" (Tr. 75). Howt?ver, as long as the bar
was not altered so that it could not deenergize ·the car, operators were allowed to adjust them to suit their individual
height (Tr. 76).
Mr. Vanhorn was not aware of any previous problems with the
panic bars on shuttle cars, and he indicated that the piece of
metal has to remain in alignment so that when it is depressed
it will activate the hydraulic valve (Tr. 78).
On cross-examination, Mr. Vanhorn described what he did to
check the shuttle car after the violation was issued. He confirmed that when Inspector Garten tried it, it did not operate
but that when Mr. Vanhorn lengthened the spring, it did. However, Mr. Vanhorn indicated that the panic bar would deenergize
the car when one reached out or up and hit it (Tr. 79). He indicated that the car operators are instructed to test their
equipment before operating it, and that the operators are more
or less the same height (Tr. 80).

1728

In response to further questions, Mr. Vanhorn stated as
follows (Tr. 83-89) :

Q

And did you speak with the inspector?

A Yes, sir. I asked him, I said, "Just what
is wrong with the machine?"
Q

And what did he tell you?

A And he showed me, he got in it and showed
me what was wrong with it.

. Q

What did he show you?

Do you remember?

A When he got in it, he pushed against it,
and it went up.

Q

What do you mean it went up?

A It pivots down on-, say, a forty-five degree angle over a set.of switches; and tne boy had
a spring up here and it raised it up a little more
than center. You know what I mean? And when he
come against it, you know what I mean, it went up.
It fouled again.
It went up.

* * *
Q

It went up?

A It come up, instead of going down.
the motion of it is to go down.

But

Q How did he finally get.it to work, the
inspector?
A

I lengthened the spring on. it to lower it

Q

And then he got it working?

more.

A As far as I know, it worked for him.
suited him, and they run the buggy.

It

* * *
Q I'm told that lip is what caused the problem in that it would cause the panic bar to.hang up
somehow and the operator would have to get in, slide
the panic bar, then push it down before it would
deactivate.

1729

A

I did not have no indication·of that with

it.

Q Now, this panic bar is designed so that
anyone, by depressing it, could deactivate the
machine, right?
A

Yes, sir.

Q Is that panic bar supposed to be at one
particular position?
A

No, sir.

Q And it can be raised or lowered, depending
upon what, the size of the operator?
A Well, it's a matter of figures, you know.
They might come up with a certain travel space ·on
the panic bar, or weightwise, or something; but do
energize it. Do you fo·llow me?
Q

Right.

But I'm talking about accessibility.

A As long as you're supposed to be inside the
cab of it, you're supposed to be able to hit it.
Q The next question is how are you supposed
to hit it? What would you do to hit it?

A I approximately would use my shoulder or my
hand. It would depend if I was in a hurry. In a
quick reflex, you don't know what you'd do.

Q In a shuttlecar, you're steering the machine
with your left hand, are you not?
A

Yes, sir.

Q

And the panic bar is on that side, isn't it?

A

Yes, sir.

Q So if you use your hand to do it, you
wouldn't let go. You'd reach over with your right
hand?
A

Well, you could.

Q

If you were going to use your hand?

A It would be a matter of quickness.
probably do it with my shoulder.

1730

I'd

Q

With your left shoulder?

A Yes. I'd just go against it. Left or
right, whichever way you'd be traveling. There's
a left and right machine.

* * *
Q Did that piece of metal in any way impede
or keep the panic bar from doing its job?
A

When I tried it, no.

Q

How about if somebody else tried it?

A

Well, now

Q

If the inspector tried it, did it?

A It might have, but it did not when I
tried it.
Inspector Garten was called in rebuttal, and he could not
explain the presence of the metal lip on the panic bar, nor
could he dispute the testimony of the respondent's witnesses
regarding that device (Tr. 101). In response to further questions, Mr. Garten testified that when he tested the panic bar
he had to push it approximately one-half inch forward and then
down, and he explained his citation further as follows (Tr. 107108) :

Q If there's an operator sitting there and he
pushes it a half an inch and down, is it altogether
possible that he believed it was operating all right?
A

He could have.

Q And yet when you did it, you didn't think
it was, because -A The panic bar is designed two-inch play
downward pressure, not sideways. It was designed
for two-inch play when you hit it for it to come
down into contact.

Q So it's altogether possible then the reason
you issued this citation is that you were strictly
applying Subparagraph (c), which says, Any part of
the body leaning into it has to de-energize it?
A

Yes, sir.

1731

Q Whereas, the operator you saw was having a
little difficulty because he had to move it a half
an inch and then put a little more pressure down.
And in your view, that wasn't in compliance with
the standard?

A No, sir, because. the standard calls for the
fifteen pound pressure on your body in a downward
direction.
And, at Tr. 109:
JODGE KOUTRAS: Half an inch, gentlemen -how big is this panic bar?
MR. RUBENSTEIN:

Three-and-a-half feet long?

THE WITNESS: Three-and-a-half or four feet.
It depends on the length of the deck.
JUDGE KOUTRAS: So the question of whether the
fellow leans into it or moves it half an inch, really
MR. McCORMICK: I take issue with that, Judge.
It's not that. He said when you leaned into it, it
didn't work. So half an inch might be a small amount
of distance, but you have to move it half an inch and
then i.t would work: but if you leaned into it without
moving it forward with your hand, it wouldn't work.
So the half inch, I think, is significant. Not so
much the distance. It's the fact you had to do something before the panic bar would automatically work
the way it's supposed to.
Findings and Conclusions
In this case the respondent is charged with a violation of
the provisions of mandatory safety standard section 30 CFR
75.523, which provides as follows:
[Statutory Provision]
An authorized representative of the Secretary
may require in any mine that electric face equipment be provided with devices that will permit the
equipment to be deenergized quickly in the event
of an emergency.

The citation i~sued by Inspector Garten asserts that the
panic.bar on the cited shuttle car was not maintained in an operative condition in that when it was tested it would not deenergize the machine in the event of an emergency.

1732

Regulatory standard section 75.523-1 requires that electric
face equipment must be provided with a device that will quickly
deenergize the equipment in the event of an emergency. The
parties stipulated that the exception found in subsection (b) of
this standard, which does not require such a device when a machine is equipped with a substantially constructed cab, does not
apply in this case.
Regulatory standard section 75.523-2 states the performance
requirements for the deenergization device in question, and subsection (b) and (c) state as follows:
(b) The existing emergency stopswitch or
additional switch assembly shall be actuated by a
bar or lever which shall extend a sufficient distance in each direction to permit quick deenergization of the tramming motors of self-propelled
electric face equipment from all locations from
which the equipment can be operated.
(c) Movement of not more than 2 inches of the
actuating bar or lever r~sulting from the application of not more than 15 pounds of force upon contact with any portion of the equipment operator's body at any point along the length of the actuating
bar or lever shall cause deenergization of' the
tramming motors of the self-propelled electric face'
equipment.
The inspector here· did not include a reference to sections
75.523-1 and 75.523-2 as part of his citation. While it would
have made the citation more specific and detailed as to precisely
what was being charged, I do not believe that his failure to include these sections renders the citation procedurally defective.
I conclude that all of these sections must be read together in
order to make any sense as to what is required under section
75.523. Subsections (b) and (c) of section 75.523-2 state the
performance requirements necessary to maintain compliance with
section 75.523, to insure that the deenergization device- "will
permit the equipment to be deenergized quickly in the event of an
emergency" •
In its post-hearing brief, MSHA takes the position that the
uncontradicted testimony of Inspector Garten clearly establishes
that the panic bar in question did not operate in conformity with
the requirements of the applicable standards noted above. · MSHA
asserts that when Mr. Garten examined the shuttle car, the operator had difficulty activating the panic bar, and that before the
bar would deenergize the machine, the operator had to slide the
bar up and then press it down. Given these circumstances, MSHA
concludes that the car operator was unable to activate the panic

1733

bar by using any portion of his body, and that it was only after
he went through a special manuever was he able to work the bar
properly.
In further support of the violation, MSHA points out that
when Inspector Garten attempted to activate the panic bar himself
he was unable to deenergize the shuttle car because the bar could
not be smoothly pressed down. MSHA concludes that Mr. Garten correctly determined that this additional step of pulling the panic
bar pefore it could be pressed down to deenergize the car did not
satisfy the requirements of the standard for a quick deenergization in the event of an emergency because a metal lip on the
panic bar prevented the bar from moving smoothly in a downward
direction. Finally, MSHA points to the fact that neither the
mine foreman (Forbes) nor the Chairman of the Safety Committee
(Gunoe), both of whom were present with the inspector when the
machine was examined, were able to deenergize the car by simply
pressing down on the bar, and that the testimony by Mr. Garten
in this regard was not refuted.
In defense of the citation, the contestant/respondent presented the testimony of electrician William Roberts and assistant
maintenance foreman Harold Vanhorn. Although Mr. Roberts indicated that he had checked the panic bar the day before the inspection and that it worked properly, he confirmed that he was not
present at the shuttle car when the inspector issued his citation
on August 10, 1983. He also stated that he had no idea why the
0°.. dar was issued, and that no one told him why the panic bar
would not work.
Mr. Roberts was not involved in the abatement of the citation, and when asked how he had tested the bar the day befpre the
citation issued, he stated that he had "hit it" or "pushed down"
on it, but he could not recall whether he activated the bar by
simply leaning into it.
In response .to a hypothetical question
as to whether a panic bar which had to be activated by someone
sliding it, lifting it, and then pushing i t down would be functioning properly, Mr. Roberts answered that it would not.
Mr. Vanhorn was summoned to the shuttle car area after the
citation issued, and he stated that when he tested the panic bar
it operated properly and deenergized the car. However, he conceded that when the inspector tested it in his presence by simply
leaning into it, the device would not operate properly and did
not deenergize the machine. Mr. Vanhorn also conceded that the
device is designed to function by someone simply depressing it,
and in order to quickly deenergize the machine, he would probably
use his shoulder.
After careful review and consideration of all of the testimony and evidence adduced in this case, I conclude and find that
MSHA has established the fact of violation.
I find the inspector's

testimony in support of the violation to be credible, and the
contestant/respondent's testimony, while possibly mitigating the
offense, has not rebutted the credible testimony presented by
MSHA in support of the violation. Accordingly, the violation
IS AFFIRMED.
Unwarrantable Failure
The violation in this case was set out in a section 104(d) (2)
"unwarrantable failure" order issued by Inspector Garten. Although I have affirmed a finding of a violation of the cited
§afety standard in question, there still remains the issue as to
whether or not the violation constitutes an "unwarrantable failure" by the contestant/respondent to comply with the requirements
of section 75.523. Contestant/respondent has stipulated that it
does not challenge the procedural underpinning for the order, and
it concedes that the precedent underlying section 104(d) citation
and order "chain" was validly issued (Tr. 48). However, contestant/respondent preserved its challenge to the "unwarrantable
failure" finding by the inspector.
As correctly stated by MSHA in its brief, the test for "unwarrantable failure" is whether "the operator involved has failed
to abate the conditions or practices constituting such violation,
conditions or practices the operator knew or should have known
existed or which it failed to abate because of lack of due diligence", Zeigler Coal Company, 7 IBMA 280, 295-296 (1977).
MSHA did not produce copies of the underlying section 104(d)
citation and order, and I have no way of knowing why they were
issued. In support of its argument that the violation here was
an unwarrantable failure, MSHA relies on the testimony of Inspector Garten. He believed that the violation was unwarrantable because he "felt this condition should have been known by mine
management" (Tr. 23). In support of this conclusion,.Mr. Garten
was of the opinion that since the machine is on the section all
of the time, and since there is a qualified electrician present
who is required to inspect the equipment .. during his weekly examination, the condition should have been discovered. Further,
Mr. Garten was of the view that the machine operator is required
to check the machine daily before he operates it, and if he finds
any condition that is out of compliance, he is required to report
it (Tr • 2 2- 2 3) •
Neither party called the shuttle car operator as a witness,
nor did they take his deposition. As a matter of fact, no testimony was elicited from the inspector as to whether he even interviewed the machine operator or obtained any statement from him
as to whether or not he had examined the car in question prior to
operating it, or whether he believed the condition "was obvious
or easily discernible", as claimed by the inspector. Further,

1735

when asked his opinion as to the negligence of the operator, Inspector Garten was of the view that _it was "moderate"~ In reply
to a question as to whether or not mine management should have
been aware of the condition, Mr. Garten replied "there could be
mitigating circumstances behind it" (Tr. 24).
Inspector Garten asserted that he had no reason to believe
that the shuttle car operator was aware of the condition of the
panic bar (Tr. 32). This leads me to conclude that prior to the
inspector's arrival on the scene, the car operator either did not
check it out or thought nothing of it. As a matter of fact, when
q_alled in rebuttal, Mr. Garten admitted that when he tested the
panic bar he had to push it approximately one-half inch forward
and then down before the machine would deenergize. When asked
whether the car operator, given these same circumstances, could
have concluded that the device was operating properly, Mr. Garten
replied "he could have" (Tr. 108).
As for Mr. Garten's testimony that he examined the very same
car "a month, maybe longer" prior to August 10, 1983, and found
that the panic bar operated properly, and that he observed no
metal lip impediment, contestant/respondent's post-hearing information suggests that it may have been added in May 1979 when the
car was rebuilt. Thus, any inference that the metal lip may have
been added after Mr .. Garten's prior inspection is simply not supportable. As a matter of fact, Mr. Garten appeared to be totally
ignorant as to the function of the impediment described as a
"metal lip". Further, there is no evidence of any past complaints
by machine operators concerning any problems with the panic bar,
and Mr. Vanhorn's testimony that no prior complaints were ever
brought to his attention remains unrebutted. Although the computer print-out of prior violations for the mine shows that four
prior citations for violations of section 75.523 were issued in
1982, and in March and June of 1983, MSHA presented no evidence or
testimony as to what those were about •.
After careful scrutiny of the record in this case, I cannot
conclude that MSHA has established that this violation was caused
by an unwarrantable failure by the contestant/respondent to comply with the requirements of section 75.523. MSHA has produced
no credible evidence to support any conclusion that the weekly
examination had not been conducted, and I take official notice of
the fact that August 10, 1983, the day the citation issued, was a
Wednesday. Further, respondent's electrician Roberts' testimony
that he examined the panic bar the day before the citation issued
and found it operating properly has not been rebutted by MSHA.
Maintenance foreman Vanhorn's testimony concerning the adjustments that are required to be made in the panic bar to take
into account the height of the car operator has merit, and leads

1736'

me to conclude that it is altogether reasonable that what may
appear to one individual as an "obvious or easily discernible"
condition could very well depend on the subjective judgments and
observations of someone else. As a matter of fact, Mr. Garten
conceded during his rebuttal testimony that he strictly applied
the standard requirement that the panic bar be capable of deenergizing the machine by the.operator simply leaning his body against
it (Tr. 107-108).
In view of the foregoing findings and conclusions, I conclude
and !ind that MSHA has failed to establish by a preponderance of
a~y credible evidence or testimony that the violation constituted
an unwarrantable failure by the contestant/respondent to comply
with the requirements of the cited safety standard. Accordingly,
Inspector Garten's finding in this regard IS VACATED, and the section 104(dd) (2) order IS MODIFIED to a section 104(a) citation.
Significant and Substantial
In support of its contention that the violation is "signifi. cant and substantial" (S&S), MSHA asserts that the unrefuted testimony of Inspector Garten established not only that there was a.
reasonable likelihood that the failure of the panic bar to deenergize the shuttle car would lead.to an accident, but that if an
accident did ocqur, it would reasonably be expected to result in
at least one and possibly two employees being permanently disabled
or fatally injured (Tr. 25). This was true, argues MSHA, because
a shuttle car like No. 19, which could freely roam in the mine for
up to 500 feet, could easily crash against a rib in the mine seriously injuring the operator or crush anyone in its path if the
panic bar was inoperative (Tr. 25-26, 33). MSHA points to the
fact that neither Mr. Roberts nor Mr. Vanhorn questioned Inspector
Garten's statements as to the potential harm that can be caused by
an inoperative or malfunctioning panic bar.
Although Inspector Garten confirmed that coal was not being
produced at the time the violation was cited, and while he did not
specifically know when the car was last used, he did confirm that
the section was an active pillar section which does not remain
idle for very long, and that the shuttle car was used during a coal
production cycle. He also confirmed.that the car would be used on
a regular basis in the pillar section in areas which are heavily
worked or frequently traveled (Tr. 21-22). While the testimony of
the shuttle car operator himself would have been the best and most
direct evidence of any hazard concerned with the cited panic bar,
I still find the inspector's testimony to be credible, and Westmoreland has not rebutted it.
I believe it is reasonable to conclude that given the violation in this case, in the event of a collision caused by the inability of the shuttle car operator to quickly deenergize the

1737

machine by simply leaning his shoulder into the panic bar, personal injuries or equipment damage would likely result. Accordingly, I conclude and find that the violation is significant and
substantial, and the inspector's finding in this regard IS
AFFIRMED.
Size of Business and the .Effect of the Civil Penalty on the
Respondent's Ability to Continue in Business.
_ The parties stipulated that Westmoreland Coal Company is a
large mine operator and the civil penalty assessed in this case
will not adversely affect its ability to continue in business.
I
adopt these stipulations as my findings and conclusions on these
issues.
Good Faith Abatement
The parties stipulated that the cited conditions were timely
corrected and abated in good faith, and I adopt these as my conclusion on this issue.
Negligence
The inspector here believed that the violation resulted from
a moderate degree of negligence.
I conclude and find that the
violation resulted from Westmoreland's failure to exercise reasonable care, and that this constitutes ordinary negligence.
Gravity
I conclude and find that the violation here was serious.
Failure of the car operator to be able to quickly deenergize the
shuttle car by leaning against the panic bar during an emergency,
unexpected traffic, or other obstacles in its path while the machine is in operation presents a real _potential for accidents and
injuries.
History of Prior Violations
Westmoreland's history of prior violations for the mine in
question is contained in a computer print-out submitted by MSHA
(exhibit G-2). For the period August 10, 1981, through August 9,
1983, the mine was assessed for a total of 290 violations, four
of which were previous citations of section 75.523. The information also reflects that since October 20, 1978, the mine has received 126 "S&S" violations, and I assume that these are among
those listed in the print-out.
Although Westmoreland is a large mine operator with a 1982
annual production of over 12 million tons of coal, for that same
year the Hampton No. 3 Mine produced 490,000 tons. Assuming that

1738

same production for 1983, the number of violations at the mine,
in comparison to its production, appears to be high. However,
absent any further analysis or supportive arguments from MSHA, I
cannot conclude that the prior history warrants any additional
civil penalty increase, and I am persuaded by the fact that the
mine has had only four prior citations for violations of section
75.523.
Penalty Assessment
On the basis of the foregoing findings and conclusions, and
taking into account the requirements of section llO(i) of the Act,
I conclude and find that a civil penalty assessment of $175 is
appropriate for the violation in question.
ORDER
Respondent Westmoreland Coal Company IS ORDERED to pay a
civil penalty assessment of $175 within thirty (30) days of the
date of this decision, and upon receipt of payment by MSHA, these
proceedings are dismissed.

_g:~~e~
~~A.
Koutras
Administrative Law Judge

Distribution:
F. Thomas Rubenstein, Esq., Westmoreland Coal Company, P.
Drawer A & B, Big Stone Gap, VA 24219 (Certified Mail)

o.

Kevin C. McCormick, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Boulevard, Arlington, VA 22203
(Certified Mail)

1739

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

JUL 16 1984

DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF
PAULS. SEDGMER, JR.,
EDWARD J. BIEGA, AND
DENNIS R. GORLOCK,
Complainants

Docket No. LAKE 82-105-D
MSHA Case No. VINC CD 82-16
Reclamation Services No. 60
Mine

v.
CONSOLIDATION COAL COMPANY,
Respondent
DECISION
Appearances:

Patrick M. Zohn, Esq., Office of the Solicitor,
u. s. Department of Labor, Cleveland, Ohio, for
Complainants~

Robert M. Vukas, Esq., Pittsburgh, Pennsylvania,
for Respondent.
Before:.

Judge Moore

On the first day of the hearing Mr. Gorlock and Mr. Sedgmer
completed their testimony. Since their memories differ in some
respects from the other witnesses, I will summarize their testimony first. Considering that the events took place in April 1982,
that the depositions were taken in November of 1983 (the reporter
apparently lost the notes because the depositions were not transcribed until March 1984) and that the trial took place in March
of 1984, it is not surprising that memories differ as to details.
Both witnesses testified essentially as follows. They
were reinstated as pan (a pan and scraper are the same thing)
drivers after a lay-off on April 12, 1982. On April 15, 1982,
they were both in a crew operating in a loop or a circle where
they would pick up dirt from one area and deposit it in another.
Mr. Taylor, the superintendent, stopped them and asked them ±f
they could go a little faster. Both replied that they could not
.under the conditions and Mr. Gerlock mentioned that he had injured his back earlier and did not intend to do it again.
Mr. Sedgmer was told by Mr. Taylor something like "I know you
had trouble in the preparation plant and came out here thinking
it would be easy •• well, I'm going to tame you." Mr. Sed9mer
considered this a threat. Both witnesses thought it was unusual

1740

that Mr. Taylor was out on the job so often. Usually a superintendent was somewhere else, not out with the pan crew. Both
thought that a tramming or deadheading operation, and they had
both engaged in many such operations, was not a valid indication
of the pan operator's ability to produce. Pan operators deadheaded only 1% or 2% of the time and such operations were not
similar to their normal productive activity.
on April 23, 1982, a deadhead was scheduled to an area known
as the 46-C Pit. · The deadhead would begin at a place where the
various pans or scrapers had been parked, and on the way to the
46-C Pit they would first pass, in either a mile or a half-mile,
the Gem Haulroad Bridge, then the Spade Haulroad Bridge, and
thereafter the 46-C Pit. On the bus from the 46-C Pit to the place
the scrapers were located it was very dusty in the back of the
bus. There were times when the witnesses could not see Foreman
Busby in his pickup truck ahead of the bus. When the bus stopped,
Mr. Busby got on and said th:at because of the dusty conditions
and the traffic of the darts on the road, which was expected to
be heavy, a different than normal deadhead system would be used.
This time the men would start off individually with 5-miriute
intervals between them. The men had been assigned various
scrapers that had been lined up in a row and Mr. Biega, Mr. Sedgmer,
Mr. Hornyak and Mr. Gerlock were at the tailend of the procession.
The first nine were waved on over the hill and both witnesses
assumed that they would go over the hill and then line up and
leave at 5-minute intervals. About twenty minutes later, however,
Mr. Busby signaled the last four to start moving and when they
got to the brow of the hill they could not see the others lined
up for a 5-minute interval start like they expected. Everybody
had left. At some point after they had left the Spade Haul.road
Bridge, but before they got to the 46-C Pit, a Mr. Lane stopped
them all and then pulled Mr. Hornyak off to the side for an
alleged brake problem.
In getting going again, Mr. Gorlock,
who originally started out last, went ahead of Mr. Sedgmer. Both
witnesses testified that from the Quonset hut on, about 25% of
the total move, the area had been watered. When these two, and
Mr. Biega were almost finished with the deadhead, Mr. Davis pulled
them off to the side of the road. Mr. Taylor and Mr. Lane were ·
there. They were asked if they had any safety or mechanical
problems and they said No.
They then were directed to return to_
their cabs and stay there.
They stayed there for about 6 hours.
During that time Mr. Davis was asked what was going on and he
said he did not know what Mr. Taylor had up his sleeve this time.
During the whole time Mr. Davis sat across the haul road from the
three pans operated by Mr. Gerlock, Mr •.Sedgmer, and Mr. Biega •..
The three p~n operators were not allowed to talk to each other.
For most of the deadhead they had operated in second or third
gears and both had the new pans which had six gears instead of
four and thus operated slower in the middle gears than the older
pans. They both testified that they knew of no one who had been

1741

fired for going too slow in the pans but knew of some who had been
disciplined and warned about going too fast.
Both had made many deadheads and said that the normal way
was to leave in a convoy with a supervisor and his radio in front
and a supervisor and his radio behind the convoy. Normally, the
way was clear to them so that there was no problem with the darts
(haulage trucks). The foreman had always said that there was plenty
of work for them so even though they had recently been laid off
they were not concerned about running out of work at this time.
Other witnesses who had participated in the deadhead testified, and while there was some discrepancy as to the manner in
which they departed and while one witness testified that the
Quonset hut was in a different location from that testified to
by the others there was no essential difference. The' company
stipulated that in all past moves a convoy had been used and
that the move on April 23 wa$ the first time they had ever attempted to set the pans off in 5-minute intervals. Mr. Barron,
a pan operator who had been involved in at least a hundred deadheads, testified that on a deadhead the pans were not allowed to
pass each other.
In addition to the three complainants, five of the other
participants in the April 23 deadhead testified. Mr. Bintz,
classified as a first-class mechanic, Mr. Carpenter, classified
as a 'dozer operator, Mr. McKeen, classified as a 'dozer operator,
and Mr. Bonfini, a pan operator, and Mr. Hornyak, a first-class
mechanic all gave similar testimony. Pan operators that were not
involved with the April 23 deadhead: Scott, Barron, and Boggs
also testified. All were of the opinion that only the operator
of the equipment can judge the proper speed for that piece of
equipment. Only the operator knows the conditions of the road
when he is traveling on it, the 1extent of dust suspended in the
air, and the condition of his machine.
The government, prosecuting for the three complainants, contends that the operator of the
equipment has absolute discretion as to how fast he operates.
All of the participants in the April 23 deadhead heard
Mr. Busby describe the new procedure of leaving at 5-minute
intervals.
Some of them, including complainant Biega, heard
him say that plans had been changed and they were no longer
intending to use the 5-minute interval system. , Some of them,_
however, went to their scrapers still thinking that they would
be leaving at 5-minute intervals.
·
Unbeknownst to the scraper operators and to most of .the
foremen, a time and motion study had been secretly set up for
the April 23 deadhead. Superintendent Taylor made the decision
as to the order in which he wanted the pans to depart the Gem
Pit, and he told Mr. Cyrus to set up the study. Mr. Cyrus and

1742

two assistants stationed themselves at points along the haulroad
known as the Gem Haulroad Bridge, the Spade Haulroad Bridge, and
the 46-C Pit. As each scraper passed one of these three points,
its number and the time of passage to the nearest minute was noted.
The results of that time and motion study are set forth in complainants•· exhibit 3. ·From the starting point of the study, the
Gem Haulroad Bridge, it was 6.4 miles to the Spade Haulroad Bridge
and 3.3 miles thereafter to the 46-C Pit (the actual study ended
at the 'dozer pit, which is near the 46-C Pit), a total of 9.7
miles.
The first four scrapers to leave the Gem Haulroad Bridge and
the ones that finished the entire trip with an average time of
29.25 minutes were operated by the miners who were not classified
as pan operators. Two were first-class mechanics and two were
'dozer operators. There was convincing testimony that non-pan
operators generally run fas~er than regular pan operators. One
possible explanation is that since they do not operate pans on a
regular basis they enjoy the change of pace and like to run fast.
Another possible explanation is that since they do not have to put
up with the jarring motion of the pan all day like the pan operators do, they run faster and take more punishment. The pan operator on the other hand, knowing that he is going to be driving that
pan for a full shift, tends to take it easy on himself. Regardless of what the reason may be, the time and motion study bears
out this evidence. The first four regular pan operators to finish
the deadhead did so in an average time of 38.6 minutes. The
complainants covered the same distance at an average time of
68.3 minutes.
The secret time and motion study was obviously a set-up
or "sting" operation. The suspected malingerers along with the
mechanic, Hornyak, who may or may not have been a target, were
put at the tailend of the procession and the drivers who could
be expected to be the fastest, were put in front. Mr. Taylor
also testified that he likes to get his mechanics and 'dozer
operators to the scene of a new operation first; but if he had
expected the entire group to travel as a convoy, the time difference between the first arrivals and the last arrivals should have
been insignificant. There was also the suggestion that the front~
runners were driving the older pre-1977 scrapers and that these
old scrapers are faster than the newer ones. Inasmuch as nobody
ran at full speed, 32 m.p.h., it hardly matters which pans were
faster.
There is considerable controversy about how dusty it was on
the day in question. Some of the witnesses said~that dust was a
problem and others said it was not. Mr. Sedgmer, father of one
of the complainants, was driving a water wagon that day and he
put the first water on the haul road in the vicinity of the
Quonset hut and it had not been previously watered. The Quonset

1743

hut is fairly near the Spade Haulroad Bridge w~ich, from respondent's exhibit 7 would appear to be about 6 miles after the start
of the time and motion study. According to the study, the watering
of the Quonset hut area would have taken place before any of the
thirteen pans involved in the deadhead got to that area and at
about the time that the last four pan operators passed the Gem
Haulroad Bridge where the study began. Mr. Sedgmer's watering of
the Quonset hut area took place at 7:50 A.M.
If, on April 23, the unwatered portions of the haul road
had been extremely dusty with no cross wind to carry the dust
away, i t would be obvious that the last pans in line would have
had more dust to contend with than the scrapers near the front
of the line. And if the dust was hanging in the air the cumulative effect of the dust being thrown off by the coal haulage
trucks would be worse for the last pan operators in line • . I can
not find, however, that the road was as dusty as the conditions
I have just described. The complainants testified that at the
speed they were driving dust was not a problem. The front-runners
all testified that they were not having a problem with d~st but
that the road conditions would be worse for those trailing behind.
It was speculated that the ones behind would have not only more
dust but more truck traffic to contend with.
Some of the witnesses thought that there was dew on the
ground and while it is fairly clear that the dust settling effect
of the dew would be dissipated as more and more scrapers rolled
by, there is no evidence of a traumatic change in the road conditions between 7:38 A.M. when the first scraper passed the Gem
Haulroad Bridge and 9:09 A.M. when the last scraper passed the
finish line. The superintendent, Mr. Taylor, and the other foreman traversed the deadhead route several times during the move
and observed both the leading pans and the last four.
They
testified that the dust and traffic conditions as well as the
road surface conditions were not significantly different for
the different operators.
After listening to the testimony of the complainants,
Mr. Biega, Mr. Gerlock and Mr. Sedgmer, I can not believe that
they were involved in a deliberate slowdown designed to hamper
the company's operation and avoid a layoff. Avoiding a layoff
by engaging in a slowdown, thus prolonging the available work,
has been suggested as the motive for complainant's actions. -I
do not find that the complainants engaged i~ such a slowdown.
I believe that Mr. Hornyak ·and the three complainants took
a leisurely :trip relying upon the belief that all equipment
operators seem to hold to the effect that they are the only ones
who can determine the speed at which the equipment will operate.
To the extent that the pan operator or any other equipment operator, has his feet on the brake and accelerator and is in charge

of the gear shifting mechanism the operator is obviously the one
who determines the speed at which the equipment is operated. I
can not find, however, that he has unlimited discretion in this
respect as the government contends. Mr. Biega himself was the
cause of a citation being issued against the company because he
was following another scraper too close. Drivers have been disciplined for going too fast and a Mr. Scott, who testified for
the complainants, was disciplined (a letter of reprimand) for
going too slowly. I heard a case in Texas, Secretary of Labor
vs. Garrett Construction Company, 4 FMSHRC 2202 (December 13,
1982) in which two scrapers were going in opposite directions
at 30 m.p.h. each and collided. One operator was killed and the
other was seriously injured. Those drivers undoubtedly thought
they had discretion to operate at approximately full speed. I
hold that the speed at w~~ch a scraper is supposed to be operated
is not in the sole discretion of the operator himself.
Both parties devote a portion of their briefs to the question of good faith belief, on the part of complainants, that they
were operating at a safe reasonable speed. I do not consider the
driver's belief a controlling factor. The question is· whether
respondent had a good faith belief that the three drivers were
engaged in a slowdown. It is the determination of the motivation
of the employers that is crucial.
While I have held that I do not believe the complainants
were engaged in a slowdown, I also hold that from the results of
the time and motion study, respondent had every right to think
that they were so engaged and, in fact, did think that. Taking
the first 6.4 mile leg of the test, only a small portion of which
had been watered at the time of the deadhead, complainants average
speed was 8.2 m.p.h. Disregarding the faster speed of the
mechanics and 'dozer operators, the five regular pan operators
had a speed over that first leg of 14.6 miles per hour. That
is 6.4 miles per hour faster than the complainants. It took an
average of 26.2 minutes for the five regular pan operators to
cover that leg, and it took the complainants an average of 47
minutes to cover that same distance. The last of the regular pan
operators passed the Spade Haulage Bridge at 8:12 A.M. It was
19 minutes later before the first of the complainants got to
that check point. The time and motion study justifies a belief
by respondent that complainants were engaged in a slowdown.
The complainants did make safety compl&ints from time
to time and there is evidence that they were outspoken in regard
to safety matters, but there was no evidence that their safety
complaints had any connection with the disciplin~!Y action taken. 1/

1/ Complainants were all given notices of suspension with intent
to discharge. The matter went to arbitration and the decision of
the arbitrator was that complainants should be suspended for 30
days, but not discharged. The complainants were thus suspended
for 30 days and then put back to work.

1745

Complainants were suspected of being malingerers and a trap
was set up to provide evidence of that fact.
The trap did provide
Mr. Taylor with the evidence he wanted and the result was exactly
as he expected it to be.
If extremely dusty conditions had existed
on April 23, 1982, on the haul road, I would have found this time
and motion study to be unfair because of the way the scrapers were
lined up.
I do not find that such extremely dusty conditions
existed, and I can not find that the time and motion study was
unfair. Considering the fact that Mr. Biega finished the entire
run approximately 25 minutes before Messrs. Sedgmer and Gerlock,
together with the fact that Mr. Gerlock passed Mr. Sedgmer, I can
not find that any of the complainants were being held up by one
of the other complainants. Pan operators are allowed to pass
each other although some of them (Mr. Barron for example) do not
think they are supposed to pass. There was evidence to the effect
that a rubber-tired front end loader overtook and went around one
or more of the complainants.
I find for the company and the case is DISMISSED.

Charles c. Moore, Jr.
Administrative Law Judge

Distribution:

.

Patrick M. Zohn, Esq., Office of the Solicitor, u. s. Department
of Labor, 1240 East Ninth Street, Cleveland, OH 44199 (Certified
Mail)
Robert M. Vukas, Esq., Consolidation Coal Company, Consol Plaza,
Pittsburgh, PA 15241 (Certified Mail)

1746

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

July 17, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
·Petitioner

CIVIL PENALTY PROCEEDING
Docket No. CENT 84-43-M
A.C. No. 16-00335-05501

v.
Perryville Sand & Gravel
Plant

LOUISIANA INDUSTRIES, INC.,
Respondent

DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlements
in the amount of $20 apiece for the three violations involved in this matter. The Solicitor's motion contains no
discussion regarding the circumstances of any of these
violations. At least two of the violations indicate on
their face that some degree of gravity might be involved.
Citation No. 2236638 was issued for an unsecured oxygen
cylinder and acetylene cylinder. Citation No. 2236640 was
issued because the catloader was not provided with a fire
extinguisher.
It is now well established that the Commission and its
administrative law judges have de novo authority to assess
penalties under the Act. Unitea---stat:"es Mining Co., Inc.,
FMSHRC Docket No. PENN 82-328, Slip. Op. (May 31, 1984).
See also, Sellersburg Stone Co., v. Federal Mine Safety
and Health Review Commission,
F. 2d
(7th Cir.
1984), aff'g, 5 FMSHRC 287, 291 (March 1983); Knox County
Stone Co., Inc., 3 FMSHRC 2478, 2480-81 (November 1981);
Tazco, Inc., 3 FMSHRC 1895, 1896-98 (August 1981); Shamrock Coal Co., 1 FMSHRC 469 (June 1979), aff •d, 652---P:-2d 59
(6th Cir. 1981).
The Solicitor must therefore explain why $20 penalties
are justified for these three citations.
In order to expedite the handling of this matter,
including the setting of this case for hearing, if appropriate, this case is hereby assigned to Administrative Law

1747

Judge Michael A. Lasher. All future communications regarding this case should be addressed to him at the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
S203 Leesburg Pike
Falls Church, VA 22041
Telephone:

703-7S6-6220

Paul Merlin
Chief Administrative Law Judge
Distribution:
Jack F. Ostrander, Esq., Office of the Solicitor, U.S.
Department of Labor, SSS Griffin Square, Suite SOl, Dallas,
TX 7S202 (Certified Mail)
Mr. James E. Mercer, Regional Personnel Safety Manager,
Louisiana Industries, 4600 Lee Street, P.O. Box S472, Alexandria, LA 71301 (Certified Mail)

/nw

1748

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

July 17, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. KENT 83-54
A.C. No. 15-12628-03501

v.

Cobra Tipple
COBRA RESOURCES, INC.,
Respondent
DECISION DISAPPROVING SETTLEMENT
ORDER OF ASSIGNMENT
On March 27, 1984, the Solicitor filed his response to
the Order to Submit Information issued in the above-captioned case. At issue is one violation, the proposed settlement of which is for $20, the originally assessed amount.
Citation No. 2054981 was issued for violation of 30
C.F.R. § 77.1605(b) because adequate brakes were not provided on a 125 Michigan Front End Loader being used for
moving cars to be loaded on track. The Solicitor represents
in his motion that the brakes on the front end loader were
worn but not completely out.
It was equipped with an operative emergency brake and in addition it could use its front
blade in the event that it needed to stop suddenly. The
Solicitor also states that this front end loader was being
used to move railroad cars on level ground and was not being
used to load the coal into the hopper. For the above enumerated reasons, the Solicitor asserts that gravity was low
and negligence was moderate.
I cannot approve a $20 settlement in this case.
$20 denotes a lack of gravity. Thus,
although the degree of seriousness of this violation may be
somewhat mitigated by the facts described by the Solicitor,
it did constitute a definite safety hazard. One can only
wonder at the process which produced a $20 penalty in this
instance.
This case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick.
All future communications regarding this case should be
addressed to Judge Melick at the following address:

1749

Federal Mine Safety and Health
Review Commission
Off ice of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone:

703-756-6261

Paul Merlin
Chief Administrative Law Judge
Distribution:
Thomas A. Grooms, Esq., Office of the Solicitor·, U.S. Department of Labor, 280 U.S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)
Mr. John T. Mongoven, Vice President, Cobra Resources, Inc.,
P.O. Box 1166, Madisonville, KY 42431 (Certified Mail)

/nw

1750

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

July 18, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner
v.

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-2
A.C. No. 33-01357-03502
West Point Strip Mine

BUCKEYE COAL MINING COMPANY,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion for approval of settlement for the two violations in the above captioned action. The original assessments were for $20 apiece and the
Solicitor seeks approval in the amount of $15 each.
One violation was for the absence of a fire extinguisher on a bulldozer and the other was for the absence of
a fire extinguisher on the drag line. The Solicitor advises
that "The probability of occurrences of the event against
which the violated standard is directed is improbable. The
gravity of protected injury was slight. The number of
affected persons was one. * * * This violation only concerns the failure to install portable fire extinguishers on
a bulldozer and a dragline pursuant to 30 C.F.R. § 77.1109
(c) (1) and § 77.1109-2. Therefore, there was little likelihood of danger to any of Respondent's miners."
The Solicitor does not explain why the failure to
install fire extinguishers means that there was little
likelihood of danger. The absence of fire extinguishers
would appear to pose some risk of injury and if this was not
so, then the Solicitor should specifically tell why. Even
more importantly, the original assessed penalties of $20
apiece were very low. In absence of some compelling circumstance, further reduction would make a mockery of the
Act.
In light of the foregoing, the proposed settlements are
disapproved.

1751

This case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick. All future communications regarding this case should be addressed to him at
the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline 'Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone:

703-756-6261

Paul Merlin
Chief Administrative Law Judge
Distribution:
F. Benjamin Riek III, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199 (Certified Mail)
Mr.· Ed Browne, Buckeye Coal Mining Company, Inc., P.O. Box
1, Lisbon, OH 44432 (Certified Mail)

/nw

1752

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

.JU l .,, :·.< t:).;·J t;\

.. DISCRIMINATION PROCEEDING
. Docket No. SE 83-62-DM
.• MSHA Case No. MD 83-44
PUERTO RICAN CEMENT· COMPANY,
.•
.INC.,
.
Respondent
EMILIANO ROSA CRUZ,
Complainant
v.

DECISION
Appearances:

Julio Alvarado Ginorio, Esq., Ponce, Puerto
Rico, for. Complainant1
Daniel ·R. Dom.inguez, Esq., Dominguez and
Totti, Hato Rey, Puerto Rico, for Resp9ndent.

Before:

Judge Broderick

STATEMENT OF THE CASE
Complainant contends that he was discharged from his
job as a hydrator because he complained to the Mine Safety
and Health Administration about safety conditions in the
plant. Respondent contends that Complainant was discharged
for chronic absenteeism.
Pursuant to notice, the case was heard on the merits in
Hato Rey, Puerto Rico on March 30, 1984. Emiliano Rosa
Cruz, Roberto Padua Vasquez and Jorge Marcucci Cruz testified on behalf of Complainant. Rene Vargas Lizardi and
Pedro Rodriguez Morales testified on behalf of Respondent.
Counsel for both parties have filed posthearing briefs.
Based on the entire record and considering the contentions
of the parties, I make the following decision.
FINDINGS OF FACT
Complainant worked for Respondent for more than 18
years before he was discharged on April 25, 1983. He began
working as a laborer, was later classified as a lab techni~
cian assistant, then as a mill worker. In approximately
1975, he was promoted to the position of hydrator. At the
time of his discharge he was earning $5.03 per hour, and
worked 40 hours per week.
On December 13, 1979, Complainant was suspended for 7
days "for reason of absences from work without notifying

1753

same and because you were found by your supervisors reading
a newspaper without attending to your work." (Respondent's
Exh. 1). On March 30, 1981, Complainant was sent a notice
from the personnel off ice that he had been absent from work
121 days in the year 1980. This did not include vacation
time but did '·include authorized sick leave. Similar notices
were sent for 1981.(Complainant was absent 78 days) and 1982
(Complainant w~s absent 49 days).
_
On January 25, 1982, Complainant was suspended from
January 25 to February 8, 1982, "for having been absent from
* * * work on Saturday, January 23 * * *, despite the fact
that you were aenied.permission to be absent and thus acting
insubordinately." (Respondent's Exl;l. 2). On April 26,
1982, Complainant was notified that he was discharged because of frequent absences from work. After discussions
between union and company officials, the discharge was
changed to a 2-week suspension from April 27, 1982 through
May 10, 1982. The reason for the suspension was "frequent
absences from work and * * * unsatisfactory record of attendance." (Respondent's Exh. 3). The notice of suspension
contained a warning that "[the] next time you are absent
from work without a valid and satisfactory justification for
the company, you shall be dismissed from your employment."
(Id.)
An inspection of Respondent's facility was conducted by
Federal Mine Inspector Perez on April 5 and 6, 1983. During
the .course of this inspection, Complainant told the inspector that the hydrator floor was broken and presented a stumbling or tripping hazard to employees; a leak in the ceiling
or roof caused hot water to come through, and on one occasion this caused burns to an employee; a chair in the control room had a broken leg. A close out conference, attended by Inspector Perez; the company safety director,
Mr. Calish; the plant manager, Mr.' Pedro Rodriguez; and the
Union President, Mr. Marcucci, was held following the inspection. Apparently no citations or orders were issued as a
result of the inspection.
On or about April 6, 1983, Mr. Tim Perez, an administrative assistant to the plant manager Pedro Rodriguez, told
Complainant that he (Complainant) "was hot * * * [and] was
goin_g to be f ir~d * * * because * * * he had commented or
made comments to the MSHA people about * * * the condition
of the equipment and some safety conditions." (Tr. 39-40).
Perez told Complainant that "the next time Rodriguez catches
you he is going to suspend you." (Tr. 8). This warning was
overheard by Roberto Padua, a lab technician for Respondent.
Several days later, Perez repeated this threat to Complainant.

1754

On April 22, 1983, Complainant was scheduled to work
from 6:00 a.m. to 2:00 p.m. He testified that heftid not
report for work that morning because he was ill. Complainant did not have a telephone and "had to wait for my neighbor to get up·•• (Tr. 11) before calling the company.at 9:05
a.m., to notify it.of his inability to work. The collective
bargaining agreement requires that an employee who cannot
attend his work shall notify the employer no later than 8:00
p~m. on the previous day "except in the case of unforeseen
circumstances" (Respondent's Exh. 6, Art XVII). A letter to
Complainant was prepared by Rene Vargas of the personnel
off ice and del1v~red by a guard to Complainant at his home,
directing him to report to the personnel off ice before returning to work (Respondent's Exh. 9). A company nurse was
also sent to Complainant's home at 3:25 p.m. the same day.
She reported that Complainant advised that he was ill. with
the flu and was taking Contac. She took his temperature
which was 373oc. (Respondent's Exh. 8). Later the same
day, Complainant went out in a car driven by a f~iend and
stopped to collect some money owed him and then went to the
drug store to buy some medicine. He was seen by the plant
manager at a machine shop where his debtor was.
On April 27, 1983, Complainant was notified that he was
discharged effective April 25, 1983, because of excessive
absences. (Respondent's Exh. ·14). The decision to discharge Complainant was made by the company assistant personnel manager Rene Vargas, plant manager Pedro Rodriguez, personnel director Guillermo Rios, and benefits supervisor
J. E. Rosich.
Complainant filed a claim for unemployment benefits
which was denied because of a finding that he was dismissed
due to excessive absences. Prior to the hearing on his.unemployment claim, Vargas stated that Complainant threatened to
kill him because his benefits had been withheld.
.
After leaving Respondent, Complainant worked from January 1, 1984 to February 18, 1984, as a watchman on a farm.
He earned $3.35 per hour. He was not working at the time of
the hearing.
.
STATUTORY PROVISION
Section 105Cc> of the Act provides in part as follows:
(c)(l) No person shall discharge or in
any manner discriminate against or cause to
be discharged or cause discrimination against

1755

or otherwise interfere with the exercise of
the statutory rights of any miner, representative of miners or applicant for employment in
any coal or: other mine subject to this Act
because such miner, representative of miners,
or appliaant for employment • • • has filed
or made a complaipt 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 alleg~d danger or safety or health
violation in· a coal or other mine • • • or
because m'"'tbe exercise by such miner, repre-.
sentative of miriers or applicant for employment on behalf of himself or others of any
statutory right afforded by this Act.
(2) Any.miner or applicant for employment or representative of miners who believes
that he has been discharged, interfered with,
or otherwise discriminated against by any
person in violation of this subsection may,
within 60 days after such violation occurs,
file a complaint with the Secretary alleging
such discrimination. Upon receipt of such
complaint, the Secretary shall forward a copy
of the complaint to the respondent and shall
cause such investigation to be made as he
deems appropriate.

*

*

*

*

*

*

*

(3) Within 90 days of the receipt of a
complaint filed under paragraph (3), the Secretary shall notify, in writing, the miner,
applicant for employment, or representative
of miners of his determination whether a violation has occurred. If the Secretary, upon
investigation, determines that the provisions
of this subsection have not been violated,
the complainant shall have the right, within
30 days of notice of the Secretary's determination, to file an action in his own behalf
before the Commission, charging discrimination or interference in violation of paragraph Cl>. The Commission shall afford an
opportunity for a hearing Cin accordance with
section. 554 of title 5, United States Code,
but wfthout regard to subsection Ca)(3) of
such section), and thereafter shall issue an

1756

order, based upon findings of fact, dismissing or sustaining the complainant's charges
and, if the charges are sustained, granting
such relief:· as it deems appropriate, including but not limited to, an order requiring
the reh±·ring or reinstatement of the miner to.
his former position with back pay and interest or such remedy as may be appropriate.
Such order shall become final 30 days after
its issuance. Whenever an order is issued
sustaining the complainant's charges under
this subsection, a sum equal to the aggregate
amount or all costs and expenses (including ..
attorney's fees> as determined by the Commission to have been reasonably incurred by the
miner, applicant for employment or representative of miners for, or _in coppection with,
the institution and prosecution of such'proceedings shall be assessed against the persdn
committing such violation. Proceedings under
this section shall be expedited by the Secretary and the Commission. Any order issued by
the Commission under this paragraph shall be
subject to judicial review in accordance with
section 106. Violations by any person of
·
paragraph Cl> shall be subject to the provisions of section 108 and llO(a).
ISSUES
1. Whether Complainant was discharged for activity
protected under the Mine Act?
2.

If he was, to what relief is he entitled?

·coNCLUSIONS OF LAW
In order to establish a prima facie case of discrimination under section lOSCc> of the Mine Act, a complaining
miner bears the burden of production and proof to establish
Cl) that he engaged in protected.activity and (2) that the
adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Pasula v. Consolidation Coal Co., ~ FMSHRC 2786, <·1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211
C3d Cir. 1981); and Secretary on behalf of Robinette v.
United Castle Coal Co., 3 FMSHRC 803 (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 way motivated by protected activity. If an operator

cannot rebut the prima facie case in this manner it may
nevertheless affirmatively defend by proving that (1) it was
also motivated by the miner's unprotected activities, and
(2) it would have taken the adverse action in any event for
the unprotected activities alone. The operator bears the
burden of pro6f with regard to the affirmative defense.
Haro v. Magma Copper co., 4 FMSHRC 1935 (1982). The ultimate burden of persuasion does not shift from the Complainant. Robinette, supra. See also Boich v. FMSHRC, 719 F.2d
194 (6th Cir. 1983); and Donovan v. Stafford Constr. Co.,
No. 83-1566, D.C. Cir. (April 20, 1984) Cspecificallyapproving the Commission's Pasula-Robinette test). See also
NLRB v. Trans.port._ation Management Corp., _ _ u.s;·
, 76
L.Ed. 2d 667 (1983).
PROTECTED ACTIVITY
There is no dispute that Complainant reported certain
deficiencies in the workplace to an MSHA inspector on April
5, 1983. Although Mr. Rodriguez, the plant manager, denied
that these reports had anything to do with safety, I credit
the testimony of Complainant, of Mr. Padua who is a disinterested witness, and of Mr. Marcucci, the union representative, each of whom stated that the conditions reported to
the inspector did indeed involve safety matters. The fact
that citations were not issued does not establish otherwise.
Rodriguez was very defensive in his testimony and his credibility is suspect. Reporting safety problems in the workplace to a federal inspector is the first and most obvious
kind of activity protected under the Mine Act.
ADVERSE ACTION
On the day of the close out conference following the
inspection, Complainant was told by the plant manager's administrative assistant that the plant manager was going to
fire Complainant because of his safety complaints to MSHA.
Less than 3 weeks later Complainant was fired.
MOTIVATION FOR ADVERSE ACTION
The stated reason for Complainant's discharge was excessive absenteeism. The record shows that Complainant was off
work a considerable number of days back at least as far as
1979. An inordinate number of his absences occurred on the
day before and after weekends and holidays. Complainant
testified that his absences were caused by illness and injury. However, he was terminated in 1982 because of absenteeism (the penalty was reduced to a suspension in the.grievance proceeding), and was warned on a number of occasions

1758

that he would be disciplined for being absent. On April 22,
1983, he was absent and failed.to call in before his shift
began. This record persuades me that one motive for discharging Complainant was his absenteeism. However, the
statement of Tim Perez concerning Pedro· Rodriguez's reaction
to the compla·ints made to MSHA persuades me that part of the
motive for the discharge was Complainant's report to the
MSHA inspector. Tim Perez's statement was overheard by an
apparently disinte~ested witness, Roberto Padua. There is
no doubt in my mind that Perez made the statement. Perez is
still employed in a supervisory position by Respondent, but,
and I consider this fact significant, he was not called as a
witness. I cnficlude ~hat Perez was repeating to C~mplainant
what Rodriguez in fact said. I do not credit Rodriguez's
denial that he made such a statement. This also damages
Rodriguez's credibility generally. I conclud~ that Complainant was discharged in part because of activity protected
under the Act. Therefore, he had made out a prima facie
case of discrimination under section lOSCc) of the Act.
AFFIRMATIVE DEFENSE
Respondent does not overcome a prima facie case of discriminatory discharge by showing that it had adequate nondiscriminatory reasons under its contract or otherwise to terminate Complainant. Were that enough, 'it would clearly have
met its burden here. But the burden is a more difficult,
more subtle one: it must show that in fact it would have
discharged Complainant solely for unprotected activities,
this is, in this case for absenteeism. I conclude that it
did not carry that burden. The incident which ostensibly
precipitated the discharge was failure to call the personnel
office prior to being off work for illness. The collective
bargaining agreement apparently requires reporting 10 hours
in advance Cno later than 8 p.m. the day before for an employee beginning to work· at 6: 00 a•.m. >, which is an odd requirement for sick leave notification. Complainant was apparently ill: he was in bed when the.nurse arrived and his
temperature was slightly elevated C37.3oc = 99.14oF.) He
was taking medication. I conclude that Respondent Cin the
person of Rodriguez) was awaiting an excuse to fire Complainant because he reported safety problems to MSHA, and that it
seized upon his abs.ence on April 22, 1983, as a plausible
reason to let him go. Respondent has not established that
it would have discharged Complainant for his absence on
April 22, 1983, or for excessive absenteeism.

1759

COMPLAINANT'S THREAT OF VIOLENCE
Respondent argues that Complainant loses the protection
of the Act because he threatened the life of Respondent's
assistant personnel manager, Mr. Vargas. The alleged
threats were l'tlade at an unemployment compensation hearing
some months after Complainant was discharged. I conclude
that any threats made subsequent to Complainant's discharge
are not relevant ·to this proceeding. I do not hereby determine whether the alleged threats were in fact made.
CONCLUSION
I conclude that Respondent discharged Complainant, a
miner, because he made complaints related to the Mine Safety.
Act. Respondent therefore, violated section 105Cc)(l) of
the Act.
RELIEF
Based on the above findings of fact and conclusions of
law, Respondent is ORDERED
1. To reinstate Complainant to the position from which
he was discharged on April 25, 1983, or to a comparable position at the same rate of pay and with the same non wage
benefits1
2. To remove from Complainant's records all references
to his discharge on April 25, 19831
3. To pay Complainant his regular wages from April 25,
1983, to the date of his reinstatement with interest thereon
using the formula set out in the case of Secretary/Bailey v.
Arkansas-Carbona, 5 FMSHRC 2042 (1983). CA copy of the
Arkansas-Carbona decision is appended hereto.)
4. To pay reasonable attorney's··fees and costs of litigation incurred by Complainant in the prosecution of this
case.
ORDER
1. Complainant shall file a statement on or before
August 17, 1984,.· showing the amount he claims as back pay
.and interest to the date of this decision.
2. Complainant shall file a statement on or before
August 17, 1984, showing the amount he claims as attorney's
fees and necessary legal expenses. The attorney's hours and
rates shall be set out in detail.

1760

3. Respondent shall file a reply on or before Septem•'
ber 12, 1984, and if it objects to the amounts claimed as
back pay or attorney's fees, shall state its objections with
particularity. ~
'
4. Unti':l' the issues of the amount due as ·back pay and
. interest, and the amount due as attorney's fees are det·ermined, the decision is not final.
·
~·
....,
rb(

L

.#L

.

.~ltl~1/f.~
James A. Broderick
j~/;i~t:·-S
Administrative Law Judge
Distribution:
Julio Alvarado Ginorio, Esq., P.O. Box 1771, Ponce, .P.R.
00733 (Certified Mail)
Daniel R. Dominguez, Esq., Dominguez & Totti, P.O. Box 1732,
Hato Rey, P.R. ~0919 (Certified Mail)
/fb

1761

attachment to SE 83-62-DM

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

December 12, 1983

SECRETARY OF LABOR, .
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
Docket No. CENT 81-13-D

On behalf of MILTON BAILEY

v •.

ARKANSAS-CARBONA COMPANY
and
MICHAEL WALKER
DECISION
This discrimination case presents four issues: whether the Commission's
administrative law judge abused his discretion in severing the Secretary of
Labor's request for.a civil penalty from the complaint of discrimination;
whether the judge erred in awarding 6% interest on the back pay award;
whether he. erred in tolling the back pay award on the date the Secretary
filed a complaint on Bailey's behalf; and whether he erred in refusing to
award Bailey tuition and certain miscellaneous expenses.
For the reasons that follow, we hold that the judge did not abuse his
discretion in this case when he severed the request for a civil penalty from
the discrimination complaint, but we also announce our intention to amend
Commission Procedural Rule 42, 29 C.F.R. § 2700.42, to end the need for such
severance in future cases. We adopt as the Commission's interest rate formula
for back pay awards the interest formula used by the National Labor Relations
Board--that is, interest set at the "adjusted prime rate".announced semiannually by the Internal Revenue Service for the underpayment and overpayment of taxes. We hold that the judge erred in assessing 6% interest on the
back pay award and remand for recalculation of the award pursuant to the
computation rules announced in this decision. We reverse the judge's order .
t~lling back pay on the date of the Secretary's complaint on behalf of Bailey.
We continue the award until the date Bailey informed the Secretary he did not
wish reinstatement, and additionally remand for determination of the date when
that notification occurred. Finally, we affirm the judge's holding that
Bailey was not entitled to payment of college tuition and related expenses.

1762

I.

Factual and procedural background

We briefly summarize the facts, which are undisputed, as background
for our discussion of this case. Arkansas-Carbona Company, a joint venture,
operated a small surface anthracite coal mine in Dardanelle, Arkansas at
the relevant time. Milton Bailey was employed by Arkansas-Carbona from
May 13, 1980, until his discharge on June 27, 1980. Bailey was the company's
safety director and he earned $1,000 per month. Michael Walker was the
president of one of the firms comprising the Arkansas-Carbona joint venture,
and after June 13, 1980, took over control of mine operations at the mine
site. On June 27, 1980, Bailey complained to Walker that the mine's first
aid kit, which had been moved from the main office to a screened porch,
should remain in the office to prevent its exposure to dust. Walker contended the kit was in a dustproof container. An argument ensued which
resulted in Bailey's discharge.
On October 20, 1980, the Secretary of Labor filed a discrimination complaint before this independent Commission on behalf of Bailey against
Arkansas-Carbona and Michael Walker. 1/ His complaint alleged that Bailey was
unlawfully discharged for exercising rights protected by section lOS(c)(l) of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1976 & Supp. V 1981). The relief sought included back pay with~% interest,
and reinstatement on the same shift with the same or equivalent duties at a
rate of pay "presently proper" for the position. The Secretary's complaint
also requested "an order assessing a civil penalty of not more than $10,000
against [the operator] for [the] violation of section lOS(c) of the Act."
30 U.S.C. § 815(c)(Supp. V 1981). On January 22, 1981, the Secretary filed
a motion to amend his discrimination complaint. The motion stated in part:
"Subsequent to his filing of the complaint the Secretary was informed by
complainant Bailey that he did not wish to be reinstated by respondents and
that in lieu of reinstatement he would accept tuition for one year of
college plus an allowance for expenses."

The Commission's administrative law judge first held that Bailey's
complaint concerning the first aid kit on the day of his discharge was
protected activity and that Bailey's discharge was motivated in part by
that protected activity. Thus, the judge held that a prirna facie case of
discrimination, that is, adverse action motivated in part by protected
activity, was proved. 3 FMSHRC 2313, 2318-19 (October 198l)(ALJ). The
judge then examined each non-discriminatory ground the operator presented
as the cause of Bailey's termination and concluded, "Neither singularly
nor in combination do Respondents' contentions establish that Respondents
would have discharged Complainant for the reasons given." 3 FMSHRC at 2319.
Therefore, the judge determined that Arkansas-Carbona's discharge of Bailey
violated section lOS(c)(l) of the Mine Act. 30 u.s.c. § 815(c)(l).
The judge awarded Bailey back pay with 6% interest from the date
of discharge until October 19, 1980, one day before the Secretary's
complaint was filed. 3 FMSHRC at 2323. Because the complaint on behalf
of Bailey was amended January 22, 1981, to request one year's college
tuition and related expenses in lieu of reinstatement, the judge applied

1./

We refer to the respondents collectively as "the operator."

1763

Rule 15(c), Federal Rules of Civil Procedure, and concluded that the
amendment related back to October 20, 1980, the date of the Secretary's
complaint, 2/ Therefore, the judge concluded that Bailey did not request
reinstatement from that date and that, accordingly, the obligation for
back pay ceased on that date, 3 FMSHRC at 2321, The judge also declined
to order the payment of one year's college tuition and expenses because
Bailey "failed to establish any entitlement to an award of 1 y~ar of
college tuition." 3 FMSHRC at 2322, The judge also ordered expunging
of all references to "this matter" from Bailey's employment record,
In addition, the judge severed MSHA's proposed assessment of a
civil penalty from thi~ proceeding, and he ordered MSHA to proceed under
Commia1ion Procedural Rule 25, 29 C.F.R, § 2700,25, 3/ At the outset of
the administrative hearing, the judge explained the reason for the severance:
"I will sever the civil penalty proceeding because there has not been.the
required administrative processing of the proposal through the notification
to the respondents of the amount of the proposed penalty or the opportunity
to discuss this matter with the District Manager's office," Tr. 4.
II.

Severance of the civil penalty from the proceedings
involving the complaint of discrimination

We first consider the question of how civil penalties for violations of
section lOS(c) should be proposed and assessed in cases where the Secretary
files a complaint on behalf of a miner, and then whether the judge erred in
severing the penalty proceeding.
Civil penalties are assessed under the Mine Act to induce compliance
with the Act and its standards. See, for example, s. Rep. No. 181, 95th
Cong., 1st Sees. 40-41 (1977) ("S-:-iep. 11 ), reprinted in Subcommittee on
Labor, Senate Committee on Human Resources, 95th Cong., 2d Sees.,
Le islative Histor of the Federal Mine Safet and Health Act of 1977, at
628-29 1978) ( Legis. Hist."). Penalties are mandatory for violations of

!/

l/

Rule lS(c), Fed. R, Civ. P., provides in part:
Relation Back of Amendments. Whenever the claim or
defense asserted in the amended pleading arose out of
the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading, the
amendment relates back to the date of the original pleading.
Commission Procedural Rule 25 provides:
The Secretary, by certified mail, shall notify the operator
or any other person against whom a penalty is proposed of:
(a) the violation alleged; (b) the amount of the penalty proposed; and (c) that such person shall have 30 days to notify
the Secretary that he wishes to contest the proposed penalty.
If within 30 days from the receipt of the Secretary's notification or proposed assessment of penalty, the operator or other
person fails to notify the Secretary that he intends to contest the proposed penalty, the Secretary's proposed penalty
shall be deemed to be a final order of the Commission and
shall not be subject to review by the Commission or a court.

1764

the Act and its standards. The Act separates the procedures for civil ·
penalty assessment between the Secretary and the Commission. The
Secretary proposes the penalty he wishes assessed for a violation and
the Commission assesses a penalty of an appropriate amount. See
Sellersburg Stone Co., 5 FMSHRC 287, 290-92 (March 1983), pet:-for
review filed, No. 83-1630, 7th Cir., April 8, 1983; Tazco, Inc.,
3 FMSHRC 1895, 1896-98 (August 1981). !!./

.

This bifurcation of functions is set forth in sections 105 and 110 of
the Act. 30 u.s.c. §§ 815 & 820 (Supp. V 1981). Section 105(a) requires the
Secretary to take certain steps to notify an operator of the civil penalty
"proposed to be assessed under section llO(a) for the violation cited.• "
30 U.S.C. § 815(a). Section llO(a) provides, in turn, for penalty assessments
of not more than $10,000 per violation. 30 U.S.C. § 820(a). Section llO(i)
provides, "The Commission shall have authority to assess all civil penalties
provided in this Act." 30 U.S.C. § 820(i). After listing the six statutory
penalty criteria, section llO(i) concludes, "In proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the information
available to him and shall not be required to make findings of fact concerning
the above [six] factors."_ 1/
Section 105(a) states that the civil penalty proposal procedures set forth
for the Secretary therein are only invoked "[i]f, after an inspection or
investigation, the Secretary issues a citation or order under section 104
[30 u.s.c. § 814]." 30 u.s.c. § 815(a). 6/ The Secretary must notify an
operator "within a reasonable time" of the penalty he proposes. If the
operator chooses to contest a proposed penalty, the Secretary must
"immediately advise" the Commission so that a hearing can be scheduled ..
30 u.s.c. § 815(d). The statutory procedures for prompt notification

!:../

When penalties proposed by the Secretary are not contested, however,
a proposed civil penalty is not actually assessed but is deemed to be a
final order of the Commission, as if the Commission had assessed it.
30 u.s . c. § 815(a). See also Commission Procedural Rule 25 (n. 3 supra).
5/
The words "shall be assessed a civil penalty by the Secretary" in
section llO(a) must be read in pari materia with sections 105(a) and
llO(i). Although section llO(a) uses the language "shall be assessed a
civil penalty by the Secretary," the express language of sections 105(a)
and llO(i) makes clear that this Secretarial function is one of proposal,
not disposition. The legislative history hears out this reading of
section llO(a). Conf. Rep. No. 461, 95th Cong., 1st Sess. 58 (1977)
reprinted in Legis. Hist. 1336; s. Rep. 43, 45-46; reprinted in Legis.
Hist. 631, 633-34. Thus, the reference to "shall be assessed,.in
section llO(a) means "shall be subject to a proposed assessment of a
civil penalty by the Secretary." See Sellersburg Stone Co., supra.
§.! Section 104, 30 u.s.c. § 814 (Supp. v 1981), contains the procedures
through which an operator's violations of the Act or its standards are
enforced. Section 104(a) makes clear that citations shall be issued for
violations of "this Act, or any mandatory health or· safety standard, rule,
order, or regulation promulgated pursuant to this Act." 30 u.s.c. § 814(a).

1765

and contest of a proposed civil penalty assessment reflect Congress' belief
that penalty.assessment had lagged under the 1969 Coal Act, 30 u.s.c. § 801
et seq. (1976)(amended 1977), and its consequent desire to speed the process.
ThuS,the thrust of the penalty procedures under the Mine Act is to reach a
final order of the Commission assessing a civil penalty for violations
without delay.
Cases involving violations of the d~scrimination provisions, however,
are not initiated with the issuance of a citation or order under section
104 but, rather, with filing of special complaints before the Commission
under sections lOS(c) (2) or 105(c) (3). 30 U.s .c. §§ 815(c) (2) & (3).
These two statutory subsections provide for complaint by the Secretary
if he believes discrimination has occurred, or complaint by the miner
if the Secretary declines to prosecute.
It is clear that a penalty is to be assessed for discrimination in
violation of section 105(c)(l). The last sentence of section 105(c)(3)
states, "Violations by any person of paragraph (1) shall be subject to
the provisions of sections 108 [30 U.S.C. § 818] and section llO(a)."
30 U.S.C. § 815(c)(3). 7/ Section llO(a) requires the Secretary to
propose penalties to be-assessed for violations of the Act. Neither
section 105(c) nor section llO(a), however, states how and when the
Secretary is to propose a penalty for a violation of section 105(c)(l).
The Secretary's regulations in 30 C.F.R. Part 100 set forth "criteria
and procedures for the proposed assessment of civil penalties under section
105 and 110 of the [Mine Act]." 30 C.F.R. § 100.1. 8/ Section 100.5 lists
a number of "categories [of violations which] will be individually reviewed
to determine whether a special assessment is appropriate" including
"discrimination violations under section 105(c) of the Act." !ii
In spite of this reference to discrimination cases, none of the Part 100
regulations specifies how the Secretary shall propose a civil penalty when he
files the complaint of discrimination, and it does not appear that the
Secretary contemplated that his administrative review procedures for proposed penalties should apply to a determination that an operator had violated
7/
Section 108 permits injunctive relief and is not relevant to the
Tssues presented in this case.
8/
In this analysis, for convenience, we will refer to the current
Part 100 regulations, which became effective May 21, 1982. They are
substantially similar to those in effect when the judge's decision
issued. The changes made do not affect our analysis, and we would
reach the same conclusions under either version.
9'/
A review of the discrimination cases adjudicated by this Commission indicates that the Secretary has used the section 100.5 special
assessment procedure in discrimination cases only when the miner has
proceeded on his own behalf pursuant to section 105(c)(3) of the Act
and prevailed, or when, as here, the judge has severed the penalty
proceedings from the discrimination case. In other discrimination
cases, the Secretary has requested a penalty in his complaint of
discrimination.

1766

section 105(c)(l). Similarly, the Commission's procedural rules do not
specifically address penalty procedures for alleged violations of section
105(c)(l). Our rules more generally require the Secretary to notify the
operator of "the violation alleged" and the penalty proposed and to afford
the operator 30 days in which to notify the Secretary if it wishes to contest
the proposal. Commissibn Procedural Rule 25 (n. 3 supra). See also
Commission Procedural Rules 26 through 28, 29 C.F.R. §§ 2700.26 through 28. 10/
The Secretary argues that the penalty proposal procedures in section
105(a) of the Mine Act and Commission Procedural Rule 25 apply only to
citations and orders issued under section 104. Violations of the discrimination section, the Secretary urges, are subject only to the provisions expressly mentioned in section 105(c) itself." The Secretary relies
on the last sentence in section 105(c) (3) ,· which states that violations
of section 105(c)(l) "shall be subject to the provisions of sections 108
[injunctions] and llO(a)." 30 U.S.C. § 815(c)(3). He argues that because
section llO(a) contains no reference to section 104 or to section 105(a),
the assessment proposal procedures required therein need not be applied
in penalty proposals under section 105(c)(3).
Thus, from the language of sections 105(c)(3) and llO(a), the Secretary
argues that it is not necessary to have separate penalty proceedings in
discrimination cases. Rather, he contends that penalties should be assessed
by Commission judges when liability is determined--that is, when an operator
is found in a discrimination proceeding to have violated section 105. The
Ses:retary asserts he is "always" prepared to provide the information on the
penalty criteria in section llO(i), and that an administrative law judge will
never be more competent to decide the penalty question than at the close of
a discrimination case in which the judge has determined the existence of a
violation.
10/ Commission Procedural Rules 40 through 44 (29 C.F.R. §§ 2700.40
through 44) deal with discrimination complaints, but do not res.olve the
issue of how a penalty is to be proposed. Rule 42 requires that a
discrimination complaint include, among other things, "a statement of
the relief requested." The rule tracks section 105(c)(2) of the Act,
which requires the Secretary in his complaint to "propose an order
granting appropriate relief." 30 u.s.c. § 815(c)(2). The Secretary
contends that a civil penalty is part of the "relief" he may request
in the complaint, and that inclusion of such a request in a complaint
conforms to Rule 42 and section 105(c)(2). We conclude, however, that
"relief" as used in section 105(c) and Rule 42 indicates only those
remedies available to make the discriminatee whole. Section 105(c)(3)
states in part, "The Commission shall ••• issue an order ••• granting •••
relief ••• including ••• rehiring or reinstatement ••• with backpay and
interest or such remedy as may be appropriate." 30 U.S.C. § 815(c)(3).
The legislative history also supports this reading of "relief." See
Secretary on behalf of Dunmire and Estle v. Northern Coal Company~
4 FMSHRC 126, 142 (February 1982), citing to S. Rep. 37, reprinted in
Legis. Hist. 625. A civil penalty, on the other hand, is not intended
to compensate the victim but rather to deter the operator's future
violations.

1767'

We agree with the Secretary that it is desirable to adjudicate in one
proceeding both the merits of the discrimination claim and the civil penalty.
The Mine Act emphasizes, "Proceedings under [section lOS(c)] shall be
expedited by the Secretary and by the Commission." 30 U.S.C. § 815(c)(3).
Because the last sentence of section 105(c)(3) refere~ces penalty proposals
under section llO(a), we conclude that penalty proposals for section lOS(c)
violations are to be expedited as well. The express statutory intent to
expedite these proceedings is furthered by having the Secretary avoid dual
proceedings and incorporate his penalty proposal in his discrimination
complaint.
We also conclude, however, that it is incumbent upon the Secretary in a
combined proceeding to set forth in the discrimination complaint the precise
amount of the proposed penalty with appropriate allegations concerning the
statutory criteria supporting the proposed amount. Experience makes us
somewhat skeptical about the Secretary's assertion that he has "always" been
prepared to present evidence on penalty criteria. Formal penalty allegations
in the complaint better afford operators adequate notice of penalty issues in
discrimination cases. Because the Secretary may "rely on a summary review of
the information available to him" in proposing penalties (30 U.S.C. § 820(i)),
the penalty allegations in the discrimination complaint may be stated in summary
fashion.
In this case, the Secretary's naked request in his complaint for a penalty
of "up to $10,000" is scarcely a penalty proposal at all. Henceforth, we shall
require in these cases that the Secretary propose in his complaint a penal~ in
a specific dollar amount supported by information on the section llO(i) criteria
for assessing a penalty. This new rule shall apply to cases pending with our
judges as of the date of this decision or filed with the Commission as of, or
after, the date of this decision. Leave to amend complaints to add the penalty
allegations shall be freely granted. Thus, the operator will be informed not
only of the dollar amount proposed, but also the basis therefor. The parties
will then be better prepared to litigate at the hearing any disputes concerning
the penalty sought.
Because the Secretary did not provide in his complaint sufficient notice
to the operator of the amount of the penalty sought and the basis therefor, we
cannot say that the judge erred in severing the penalty proposal in order to
provide such notice to the operator. Nor do we see the utility of a remand
to allow the Secretary to amend his complaint. The judge's approach to the
Secretary's inadequate proposal is consistent with the Act's notice requirements and with the position we now enunciate. Accordingly, we affirm the
judge's severance of the penalty proposal from the underlying discrimination
complaint • .!.!./

.!.!/

We are presently in the process of adopting an interim amended Rule 42,
which will reflect our resolution of the penalty issue. We also note that
this case does not raise, and we do not reach, the question of how penalties
should be proposed when the Secretary does not file a discrimination complaint
on the miner's behalf and the miner files his own complaint under section
lOS(c) (3).

176'8

III. The rate and computation of interest on back pay awards
The next question in this case is whether the judge erred in assessing
6% interes.t on the back pay award. The' remedial goal of section lOS(c) is to
"restore the [victim of illegal discrimination] to the situation he would have
occupied but for the discrimination." Secretary on behalf of Dunmire and
Estle v. Northern Coal Co., 4 FMSHRC at 142. As we have previously observed,
"'Unless compelling reasons point to the contrary, the full measure of relief
should be granted to [an improperly] discharged employee."' Secretary on
behalf of Gooslin v. Kentucky Carbon Corp., 4 FMSHRC 1, 2 (January 1982),
quoting Goldberg v. Bama Mfg. Corp., 302 F.2d 152, 156 (5th Cir. 1962).
Included in that "full measure of relief" is interest on an award of
back pay. Section 105(c)(3) of the Mine Act expressly includes interest
in the relief that can be awarded to discriminatees, while leaving it up
to the discretion of the Commission to determine the exact contours of
such an award. 12/ The Senate Committee that drafted the section which
became section lOS(c) stated in its report:
It is the Committee's intention that the Secretary
propose, and the Commission require, all relief
that is necessary to make the complaining party
whole and to remove the deleterious effects of the
discriminatory conduct including, but not limited
to reinstatement with full seniority rights, backpay with interest, and recompense for any special
damages sustained as a result of the discrimination.
S. Rep. 37, reprinted in Legis. Hist. 625 (emphasis added).
Our judges have awarded interest at rates varying from 6% per
annum to 12.5% per annum and have used a variety of methods to compute
interest awards. At least two of our judges have adopted the NLRB's rate
of interest on back pay awards. See,~., Bradley v. Belva Coal Co.,
3 FMSHRC 921, 925 (April 198l)(ALJ) aff din part, remanded in part on
other grounds, 4 FMSHRC 982 (June 1982); Secretary on behalf of Smith et al.
v. Stafford Construction Co., 3 FMSHRC 2177, 2199 (September 198l)(ALJ) aff'd
in part, rev'd in part on other grounds, 5 FMSHRC 618 (April 1983), pet• for
review filed, No. 83-1566, D.C. Cir., May 27, 1983. The experience of our
12/

Section 105(c)(3) provides in part:
The Commission ••• shall issue an order, ••• if the
charges [of discrimination] are sustained, granting
such relief as it deems appropriate, including, but
not limited to, an order requiring the rehiring or
reinstatement of the miner to his former position
with back pay and interest or such remedy as may
be appropriate.

30 u.s.c.

§

815(c)(3).

1769

judges in this area has greatly aided our evaluation of different methods
of assessing interest. It has also led us to the conclusion that it. is time
to adopt a uniform method of computing interest so that all discriminatees
will be treated uniformly when they are awarded back pay under the Mine Act.
The miner has not only lost money when he or she has not been paid in
violation of section 105(c), but has also lost the use of the money. As the
NLRB has stated with regard to interest on back pay awards under the National
Labor Relations Act, "The purpose of interest is to compensate the discriminatee
for the loss of.the use of his or her money." Florida Steel Corp., 231 NLRB
651, 651 (1977). Thus, in selecting an interest rate, we have considered the
potential cost to the miner both as a "creditor" of the operator, and as a
potential borrower from a lending institution under real economic conditions.
We have therefore sought a rate of interest that compensates the discriminatee
fully for the loss of the use of money. In addition, we have attempted to
select a rate of interest flexible enough to reflect economic and market
realities, but not so complex in application as to place an undue burden on
the parties and our judges when attempting to implement it.
For all of these reasons we adopt the interest rate formula used by the
NLRB: interest set at the "adjusted prime rate" anno_unced semi-annually by the
Internal Revenue Service under 26 U.S.C.A. § 6621 (West Supp. 1983) as the
interest it applies on underpayments or overpayments of tax. The "adjusted
prime rate" of the IRS is the average predominant prime rate quoted by
commercial banks to larger businesses as determined by the Federal Reserve
Board and rounded to the nearest full percent. 26 U.S.C.A. § 6621 (West
Supp. 1983). Under the Tax Equity and Fiscal Responsibility Act of 1982,
Pub. L. 97-248, § 345, 96 Stat. 636 (to be codified at 26 U.S.C. § 6621),
the adjusted prime rate must be established semi-annually: by October 15
based on the prime rates from April 1 to September 30, and by April 15
based on the prime rates from October 1 to March 31. The rate announced
in October becomes effective the following January 1, and the rate
announced in April becomes effective the following July 1.
We agree with the NLRB that the IRS adjusted prime rate comes closest
to compensating the miner fully for loss of the use of money. On the one
hand, if the miner had the money, he or she could invest it or save it and
probably earn less than the prime rate. On the other hand, if the miner has
to borrow money because he or she is deprived of a paycheck, the rate of
interest most likely would be higher than the prime rate. In these
circumstances, we concur with the NLRB that the IRS formula "achieves
a rough balance between that aspect of remedial interest which attempts to
compensate the discriminatee or charging party as a creditor and that which
attempts to compensate for his loss as a borrower." Olympic Medical Corp.,
250 NLRB 146, 147 (1980). This "rough balance" in our view achieves the goal
of making the miner whole for the loss of the use of money.
The IRS adjusted prime rate is also attractive for pragmatic reasons.
It is a per annum rate adjusted semi-annually, based on the prime rates for
the six months preceding its calculation. In this way, the rate reflects
economic conditions with reasonable accuracy. Its announcement well in
advance of the effective date offers notice to all parties and our judges.
Cf. Olympic Medical Corp., supra.

The relevant adjusted prime rates, which we adopt as the Commission's
remedial interest rates, are:
January 1, 1978 to December 31, 1979 ••• 6% per year (.0001666% per day)
January 1, 1980 to December 31, 1981. •• 12% per year (.0003333% per day)
January 1, 1982 to December 31, 1982 ••• 20% per year (.0005555% per day)
January 1, 1983 to June 30, 1983 ••••••• 16% per year (.0004444% per day)
July 1, 1983 to December 31, 1983 .••••• 11% per year (.0003055% per day)
January 1, 1984 to June 30, 1984 ••••••• 11% per year (.0003055% per day)
Because the IRS rates of interest are announced as annual rates, it is
necessary, as explained below, to convert them to daily rates to calculate interest on periods of less than one year. ];l/
There must also be a uniform method of computing the interest on
back pay awards under the Mine Act. We have considered a number of
possible computational approaches. We are mindful of the NLRB's extensive administrative and legal experience in this area. The NLRB's
general back pay methodology is sound and has met with judicial approval.
The labor bar is familiar with this system. We conclude that rather
than expending administrative resources in attempting to devise a new
system, we will best, and most efficiently, effectuate the remedial
goals of section 105(c) of the Hine Act by adopting the major features
of the NLRB computational system. We are satisfied that this system
will do justice to the miner, avoid unnecessary penalization of the
operator, and not prove unduly burdensome for our judges and bar to
apply.
We therefore announce the following general rules for the computation of inter'est on back pay.
Back pay and interest shall be computed by the "quarterly" method.
See Florida Steel Corp., 231 NLRB at 652; F.W. Woolworth Co., 90 NLRB 289
(1950), approved NLRB v. Seven-Up Bottling Co., 344 U.S. 344 (1953). 1:!!.I

13/ Prior to the passage of the Tax Equity and Fiscal Responsibility
Act of 1982, the IRS announced the adjusted prime rate in the October
'of the appropriate year to take effect the following February. For ease
of administration under the Mine Act, however, we have bounded certain
interest periods at December 31 and January 1 rather than at January 31
and February 1. (The NLRB's General Counsel has followed the same
simplifying approach. NLRB Memorandum GC 83-17, August 8, 1983.)
14/ Back pay is the amount equal to the gross pay the miner would have
earned from the operator but for the discrimination, less his actual
interim earnings. Bradley v. Belva Coal Co., 4 FMSHRC 982, 994-95 (June
1982). The first figure, the gross pay the miner would have earned, is
termed "gross back pay." The third figure, the difference resulting ::rorn
subtraction of actual interim earning from gross back pay, is "net back
pay"--the amount actually owing the discriminatee. Interest is awarded
on net back pay only.
In a discrimination case where, as here, there has been an illegal
discharge, the back pay period normally extends from the date of the
discrimination to the date a bona fide offer of reinstatement is made.
(As we conclude below, the period may also be tolled when the discriminatee waives the right to reinstatement.)

1771

Under this method (referred to as the "Woolworth formula," after the
NLRB's decision in the case of the same name, supra), computations are
made on a quarterly basis corresponding to the fQur quarters of the
calendar year. Separate computations of back pay are made for ~of
the calendar quarters involved in the back pay period. Thus, in each
quarter, the gross back pay, the actual interim earnings, if any, and
the net back pay are determined. See n. 14.
Interest on the net back pay of each quarter is assessed at the
adjusted prime interest rate or rates in effect, as explained below.
Like the NLRB, we will assess only simple interest in order to avoid
the additional complexity of compounding interest. Interest on the
amount of net back pay due and owing for each quarter involved in the
back pay period accrues beginning with the-Ia'st day of that quarter
and continuing until the date of payment. See Florida Steel Corp., 231
NLRB at 652. In calculating the amount of interest on any given quarter's
net back pay, the adjusted prime interest rates may vary between the last
day of the quarter and the date of payment. If so, the respective rates
in effect for any quarter or, combination of quarters must be applied for
the period in which they were operative. The interest amounts thus accrued
for each quarter's net back pay are then summed to. yield the total interest
award.
For administrative convenience, we will compute interest on the basis
of a 360-day year, 90-day quarter, and 30-day month. Using these simplified
values, the amount of interest to be assessed on each quarter's net back pay
is calculated according to the following formula:
Amount of interest = The quarter's net back pay x
number of accrued days of interest (from the last
day of that quarter to the date of payment) x daily
adjusted prime rate interest factor.
The "daily adjusted prime rate interest factor" is derived by dividing
the annual adjusted prime rate in effect by 360 days. For example, the
daily interest factor for the present adjusted prime rate of 11% is

1772

.0003055% (.11/360). The daily interest factors are shown in the list of
adjusted prime rates above. A computational example is provided in the
accompanying note. 12_/
15/ The mechanics of the quarterly computation system may be illustrated
by the following hypothetical example, in which a miner is discriminatorily
discharged on January 1, 1983, and offered reinstatement on September 30,
1983. Payment of back pay and interest is tendered on October 15, 1983.
After subtraction of the relevant interim earnings, the net back pay of
each quarter involved in the back pay period is as follows:
First quarter (beginning January 1, 1983) $1,000
§1,000
Second quarter (beginning April 1, 1983)
Third quarter (beginning July 1, 1983)
$1,000
Total net back pay
$3,000
The adjusted prime interest rates in effect in 1983 are:
16% per year (.0004444% per day) from January 1, 1983, to
June 30, 1983;
11% per year (.0003055% per day) from July 1, 1983, to
December 31, 1983.
The interest award on the net back pay of each of these quarters is as follows:
(1) First Quarter:
(a) At 16% interest until end of second quarter of 1983:
$1,000 net back pay x 91 accrued days of interest
(last day of first quarter plus the entire second
quarter) x .0004444 = $40.44
Plus,
(b) At 11% interest for entire third quarter through the
date of payment:
$1,000 net back pay x 105 accrued days of interest (the
third quarter plus 15 days) x .0003055 = $32.07
(c) Total interest award on first quarter:
$40.44 + $32.07 = $72.51
(2) Second Quarter
(a) At 16% interest for the last day of the second quarter
$1,000 x 1 accrued day of interest x .0004444 = $.44
Plus,
(b) At 11% interest for the entire third quarter through date
of payment:
$1,000 x 105 accrued days of interest x .0003055 = $32.07
(c) Total = $.44 + $32.07 = $32.51
(3) Third Quarter:
At 11% interest for the last day of the third quarter
through date of payment:
$1,000 x 16 accrued days of interest x .0003055 = $4.88 total
(4) Total Interest Award:
$72.51 + 32.51 + 4.88 = $109.90
This amount is added to the total amount of back pay ($3,000), for a total
back pay award of $3,109.90.

1773

The major alternative computational approach would involve awarding
interest on the total lump sum of net back pay from the date of discrimination to the time of payment. We recognize that this method would involve
less complex calculations. We reject the lump sum method, however, because
it would penalize the operator by assuming that the entire amount of the
back pay debt was due and owing on the first day of the back pay period.
We will carefully monitor the experience of our judges and parties in
applying the computational system announced in this decision. We will
modify the system if that experience over time demonstrates the
desirability of adjustment.
In discrimination cases, our judges should advise the parties of the
methodology for calculating back pay and interest. The parties shall submit
to the judge the requisite back pay figures and calculations, and are urged
to make as much use of stipulation as possible. The burden of computation
of interest on back pay awards should be placed primarily on the parties to
the case, not the judge, in order to comport with the adversarial system.
We apply the foregoing principles in this proceeding because the issue
of the appropriate rate of interest in discrimination cases arising under
the Mine Act was squarely raised on review. As a matter of discretionary
policy in judicial administration, we will otherwise apply these principles
only prospectively to discrimination cases pending. before our judges as of
the date of this decision or filed with the Commission as of, or after, the
date of this decis~on. We do not mean to intimate that any previous awards
of interest by our judges in other cases, based on different computational ·
methods, are infirm.
Applying our formula to the present case, we conclude that reversal
is necessary. The judge's award of 6% interest is so disparate from the
adjusted prime rates in effect from the date of Bailey's discharge on
June 27, 1980, as to raise questions concerning whether the complainant
would truly be made "whole" if the judge's award stands. Accordingly,
we hold that the judge erred in awarding 6% interest, and will remand
for recalculation of interest pursuant to the interest formula and
computational methods announced in this case.
IV.

Tolling of t~e back pay award

The judge concluded that Bailey was not entitled to back pay after
October 20, 1980, the date on which Bailey's complaint was filed. That
complaint requested reinstatement, but it was amended January 22, 1981.
The amended complaint sought back pay and requested the Commission to
"order respondents to pay Mr. Bailey $900.00 for one year college tuition
plus $400.00 book and maintenance expense allowance in lieu of reinstatement at respondents' mine." The accompanying motion to amend stated:
Subsequent to his filing of the complaint the Secretary
was informed by complainant Bailey that he did not wish
to be reinstated by respondents and that in lieu of reinstatement he would accept tuition for one year of college
plus an allowance for expenses.

1774

The judge granted the motion to amend and, when determining the
back pay award, applied Rule lS(c), Fed. R. Civ.P., and tolled the award
on October 20, 1980.
Rule lS(c) provides that where a claim or defense
in an amended pleading arises out of the same circumstances set forth
in the original pleading, the amendment relates back to the date of
the original pleading. Relation back has been generally permitted where
the movant seeks to enlarge the basis or extent Qf a demand for relief.
See, for example, Goodman v. Poland, 395 F. Supp. 660, 682-86 (D. Md.
1975)(change of theory of recovery from equity to law permitted);
Wisbey v. Amer. Community Stores Corp., 288 F. Supp. 728, 730-32 (D.
Neb. 1968)(amendment seeking additional damages in FLSA action permitted).
We do not believe that the restrictive application of relation back
by the judge was appropriate in this case.
Rather, in determining when back pay should terminate, we look to the
date when Bailey informed the Secretary he no longer sought reinstatement
at Arkansas-Carbona. We agree with the judge's related conclusion: "It
would be unfair and improper to require a mine operator to pay a former
employee back pay for a period of time when the employee has unequivocally
stated that he does not want to return to his former employment." 3 FMSHRC
at 2321. In a case involving similar issues, this judge compared a miner's
lack of desire to be reinstated to a rejection of an offer of reinstatement
under the National Labor Relations Act. Secretary on behalf of Ball v.
B&B Mining, 3 FMSHRC 2371, 2378 (October 198l)(ALJ). We concur with the
NLRB rule that an employer is released from his back pay obligations when
the employee rejects an appropriate offer of reinstatement, and consider
the analogy to the facts of this case appropriate. See, for example NLRB v.
Huntington Hospital, 550 F.2d 921, 924 (4th Cir. 1977); NLRB v. Winchester
Electronics, Inc., 295 F.2d 288, 292 (2d Cir. 1961); Lyman Steel Co., 246
NLRB 712 (1979).
Tolling the back pay award on the date Bailey informed the Secretary
that he no longer desired reinstatement effectuates the preceding principles,
while the judge's relation back to the original complaint needlessly and
unfairly penalizes Bailey. Therefore, we reverse the judge's relation back
to the date of the original pleading. The present record does not reveal
the date Bailey informed the Secretary of his waiver of reinstatement.
Accordingly, we additionally remand for determination of that date in order
that the back pay period may be established and the necessary computations
properly made.
V.

College tuition and related expenses.

Bailey's remaining contention concerning the award is that the judge
erred in not granting him tuition and miscellaneous college expenses. The
judge held, "Complainant failed to establish any entitlement to an award of
1 year of college tuition plus $400 book and miscellaneous expense.allowance."
3 FMSHRC at 2322. We affirm the judge on this point.
The Secretary argued in his brief before the judge that Bailey would
not have paid tuition and expenses, but for his accepting the position at
Arkansas-Carbona. J!!..I The judge. found that, prior to his employment with
16/ The Secretary did not raise this issue on review and, although
Bailey hriefly raised it in his petition for review, he did not file
a brief before us.

1775

Arkansas-Carbona, Bailey worked as a campus security guard at Arkansas Tech,
and as a fringe benefit of that campus job did not pay tuition. 3 FMSHRC
at 2315. (The judge made no finding on whether Bailey's campus job also
entitled him to college expenses.) After Bailey accepted a position at
Arkansas-Carbona, and resigned from his campus job, he paid his own tuition.
The remedial goal of section lOS(c) of the Act is to return the miner
to the status quo before the illegal discrimination. Secretary on behalf
of Dunmire and Estle v. Northern Coal, 4 FMSHRC at 142. Had Bailey not been
discharged illegally, he would have been working at Arkansas-Carbona and
would have had to pay tuition for his classes. We do not see how ArkansasCarbona can be held responsible for a fringe benefit Bailey did not receive
from that company. Although at times we may need to seek alternative
remedies to make a miner whole for illegal discrimination (for example,
where reinstatement is impossible or impractical), such considerations are
not present in this case.
Accordingly, we affirm the judge's refusal to award tuition and
college expenses.
VI.

Conclusion

For the foregoing reasons, we affirm the judge's severing of the
request for a civil penalty from the merits of the discrimination case,
and hold that in future case~ the Secretary must propose in his discrimination complaints a specific penalty supported by allegations
relevant to the statutory penalty criteria. As we have stated above,
we are accordingly in the process of amending our Procedural Rule 42 to
provide for unified proceedings in the future.
We reverse the judge's assessment of 6% interest on back pay, and remand
to the Chief Administrative Law Judge for assignment _to a judge for calculation of back pay and interest according to the principles and methodology
announced in this decision. ]]_/ We reverse the judge's tolling of the back

17/

The judge who decided this case has left the Commission.

177G

pay award on the date the complaint was filed, and additionally remand for
determination of the date Bailey informed the Secretary he no longer wished
reinstatement. Finally, we affirm the judge's denial of Bailey's request
for college tuition and related expenses.

~~

L. Clair/ Nelson, Commissioner

1777

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

July 20, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-69
A.C. No. 33-00945-03506

v.
Rogers Pit Mine
INDUSTRIAL MINING COMPANY,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER OF ASSIGNMENT
The Solicitor has filed a motion to approve settlements
for the three violations involved in this matter. Each violation was originally assessed at $54 and the Solicitor
moves for settlements in the amount of $40 apiece.
The Solicitor's motion advises that the operator is
small in size, a history of prior violations is low, and the
negligence was moderate.
I accept these representations.
I cannot, however, accept the Solicitor's representations regarding gravity. The Solicitor advises "These violations involve the failure to provide 200 feet of berms on
a roadway into a pit in violation of § 77.1605(k) (Citation
No. 02326985); the failure to provide safety belts on a pan
loader equipped with a roll over protective structure in
violation of § 77.170l(i) (Citation No. 02326986), and an
accumulation of oil and grease on the motor and transmission
of a front-end loader in violation of § 77.1104 (Citation
No. 02326987). Therefore, there was little likelihood of
any danger to Respondent's miners."
The mere recitation of the facts of each violation
does not support the conclusion that there is little likelihood of danger. Moreover, there is no explanation of the
Solicitor's proposed conclusions that the probability of
occurrences of the event against which the violated standard
were directed was unlikely and that the gravity of projected
injury would be slight. On the contrary, all of the violations appear to involve a signifi.cant degree of gravity, in
light of which, the originally assessed penalties of $54
apiece are modest.

In light of the foregoing, I am unable to approve the
recommended settlement.
Thie case is hereby assigned to Assistant Chief Administrative Law Judge Gary Melick. All future communications regarding this case should be addressed to Judge
Melick at the following address:
Federal Mine Safety and Health
Review Commission
Office of Administrative Law Judges
Two Skyline Place, Suite 1000
5203 Leesburg Pike
Falls Church, VA 22041
Telephone:

703-756-6261

Paul Merlin
Chief Administrative Law Judge
Distribution:
F. Benjamin Riek III, Esq., Office of the Solicitor, U.S.
Department of Labor, 881 Federal Office Building, 1240 East
Ninth Street, Cleveland, OH 44199
(Certified Mail)
Mr. Ed Browne, Industrial Coal Mining Company, Inc., P.O.
Box 1, Lisbon, OH 44432
(Certified Mail)

/nw

1779

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

July 20, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

v.

CIVIL PENALTY PROCEEDING
Docket No. YORK 84-9-M
A.C. No. 19-00018-05503
Lee Quarry and Mill

LEE LIME CORPORATION,
Respondent
DISAPPROVAL OF SETTLEMENT
ORDER TO SUBMIT INFORMATION
The Solicitor has filed a motion for approval for
settlement for the one citation involved in this matter.
The Solicitor asserts that the assessment sheet which
he has submitted contains findings concerning the size of
Respondent's business, the health or safety standards violated, prior history, negligence, gravity, and good faith.
This is a single penalty assessment and contrary to the
Solicitor's representations, the assessment sheet has no
information whatsoever on it. I do not, therefore, have
before me the information necessary to make a de novo penalty assessment as authorized by section 110 ofthe Act.
Moreover, the Solicitor states that the "excessive nuisance dust condition cited was not known to the operator nor
was it caused by its negligence." The dust condition may
not have been known to the operator, but this does not mean
that it should not have known. Based upon what the Solicitor has told me, I would not be warranted in finding that
the operator was not negligent.
I am also surprised that the Solicitor recommends
reducing the proposed penalty from $20 to $10. $20 denotes
a lack of gravity; For a further reduction in this minimal
penalty to be warranted, there must be additional justification such as imposition of the original penalty would impair
the operator's ability to continue in business. The Solicitor has submitted no such information •.
In light of the foregoing, therefore, it is Ordered
that within 30 days, the Solicitor submit an amended motion
for settlement which complies with the requirements of the
Act.

1780

Paul Merlin
Chief Administrative Law Judge

Distribution:
David L. Baskin, Esq., Office of the Solicitor, U.S. De- .
partment of Labor; John F. Kennedy Federal Building ·Government Center, Room 1607, Boston, MA 02203
(Certified Mail)
Frank McQuade, Vice President, Lee Lime Corporation, Box
250, Lee, MA 02138
(Certified Mail)

/nw

1781

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

LOCAL UNION 2274
DISTRICT 28, UNITED MINEWORKERS OF AMERICA,
Complainant

COMPENSATION PROCEEDING
Docket No. VA 83-55-C
McClure No. 1 Mine

v.
CLINCHFIELD COAL COMPANY,
R.espond.ent

RULING ON MOTION FOR SUMMARY JUDGEMENT
Before:

Judge Moore

In ruling on a Motion for Summary Decision it is
appropriate to view the facts in the light most disf avorable
to the moving party. Assumptions I make for the purpose of
ruling on this Motion, are therefore not binding regarding
any other ca·se that may arise due to the explosion of the
McClure No. 1 Mine on June 21, 1983. I am assuming for
example that the safety standard violations which MSHA says
existed prior to the explosion, did in fact exist and did
lead to the explosion which killed seven miners.
In this action United Mine Workers is seeking one week's
compensation for each of the miners idled by the explosion
and subsequent orders issued by MSHA. Section 111 of the
Federal Mine Safety and Health Act of 1977 provides in part
as follows:
If a coal or other mine or .area of such mine
is closed by an order issued under section 104
or section 107 of this title for a failure of
the operator to comply with any mandatory health
or safety standards, all miners who are idled
due to such order shall be fully compensated
after all interested parties are given an
opportunity for a public hearing, which shall
be expedited in such cases, and after such
order is final, by the operator for lost
time at their regular rates of pay for such
time as the miners are idled by such closing,
or for one week, whichever is the lesser.
Viewed in the light most favorable to the United Mine
Workers of America, the events following the explosion

1782

were as follows. At 3:42 A.M. on June 22, 1983, an MSHA
inspector issued a withdrawal order pursuant to section
103(k) of the Act. At 2:00 P.M. on the same day he issued
an imminent danger order pursuant to section 107(a) of
the Act. Neither order alleged or referred to a violation
of a health or safety standard.
MSHA's comprehensive underground investigation lasted
from June 25, 1983 to August 12, 1983, and various interviews
were conducted in July and August of that year. According
to the accident report, which is not a part of the record.
in this case but which I nevertheless have, the transcripts
of all testimony_taken were released to the general public
on September 9, 1983. I can not find anything in that accident
report, however, that indicates when it was published. In
any event it was not intil March o.f 1984 that MSHA issued a
section 104(d) citation and four section 104(d) orders all
alleging violations of safety standards that led to the
explosion. It is noted that the citation bears the number
2352610 but each of the four orders refers to it as number
2352601. I assume that was a clerical error. The original
section 107(a) imminent danger order was not modified.
On December 16, 1983, I denied Clinchfield's original
motion for summary decision (I referred to it as a motion
to dismiss) relying for the most part on the Commission's
decision in United Mine Workers of America v. Westmoreland
Coal Company,5 FMSHRC, 1406 (August 1983). At that time
MSHA had not released its accident report and the posture
of the case was thus very similar to the situation before
the Commission in the We·stmoreland case. The Commission
remanded the Westmoreland case to Judge Steffey with
directions that he retain it on his docket until MSHA had
completed its investigation and taken whatever action it
deemed necessary. The Commission expressed no opinion
as to whether MSHA could legally am~nd the section 107(a)
order to allege a violation or whether such an amendment
would entitle the miners to the week's compensation involved.
It said these questions should be first·· resolved by the
judge after the investigation.
As I have stated previously, the MSHA investigation
report is not a part of the official record in this case.
It is, however, an official public document of the United
States Department of Labor and as such it is entitled to
"official notice" status and under the summary decision
criteria statements therein detrimental to Clinchfield could
be "officially noticed". I am including a copy of that

1783

report with the material forwarded to t~e Commission in
this case for whatever use it wishes to make of the report.
After the parties had rebriefed the issues, I asked
the Solicitor if it wished to express a v~ew. The Solicitor
did write a letter in which it agreed with the United
Mine Workers' arguments and stated,
"as the instant 107(a) order was terminated
by the time the accident report was issued,
no thought was given to issuing a modification
of the terminated order to tie it formally
to the 104(d) orders issued with the
report;"
I would have thought that after the Commission's Westmoreland
decision and my ruling herein of December 16,· 1983, that
some thought would have been given to the question of
modification. Clinchfield has moved to strike the Solicitor's
letter but inasmuch as I invited the Solicitor's views
I can hardly strike his compliance with my request.

The issue before me in this case presents a very close
question. I sympathize with the. arguments of the United
Mine Workers of America and the Solicitor, but I believe
that the law is to the contrary. The mine was closed
because an inspector thought an imminent danger existed
not because he thought there was "a failure of the operator
to comply with any mandatory health or safety standards."
The fact that the .explosion that led to the order was
actually, in accordance with my assumptions, caused by
the violations does not affect the fact that the inspector
did not issue the order "for a failure of the operator
to comply with • • • safety standards".·
The Motion is GRANTED

and~.~

D;:; Ot

Charles c. Moore, Jr.,
Administrative Law Judge
Distribution:
Joyce A. Hanula, Legal Assistant, United Mine Workers of
America, 900 15th Street, NW., Washington, D.C. 20005
(Certified Mail)
·
Timothy M. Biddle, Esq., Crowell and Moring, 1100 Connecticut
Avenue, NW., Washington, D.C. 20036 (Certified Mail)

/db

1784

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

JUL 2 41984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. LAKE 84-38
A.C. No. 11-00599-03548

v.

Orient Mine No. 6
FREEMAN UNITED COAL MINING
COMPANY,
Respondent

:
DECISION

Appearances:

Rafael Alvarez, Esq., Office of the Solicitor,
U.S. Department of Labor, Chicago, Illinois,
for Petitioner;
Harry M. Coven, Esq., Gould & Ratner, Chicago,
Illinois, for Respondent.

Before:

Judge Kennedy

The captioned penalty proceeding came on for an evidentiary
hearing in Chicago, Illinois on May 17, 1984. The 104(a) S&S
citation charged a violation of 30 C.F.R. 75.304,.failure to
make an adequate onshift examination for hazardous conditions.
During examination of the inspector it became apparent
that the violation charged could not in fact have occurred.
Whereupon, counsel for the Secretary moved to vacate the
citation and dismiss the proposal fpr penalty. There.being
no opposition the motion was granted and the case dismissed.
The premises considered, it is ORDERED that the bench
decision in this matter be, and h"by is, AFFIRMED and the
matter DISMISSED.
.J
l

I .:l

~~· Kenn~dfJyr.11..IM~~w--.......
Administrative Law

1785

Distribution:
Rafael Alvarez, Esq., Office of the Solicitor, U.S. Department of Labor, 340 S. Dearborn St., 8th Fl., Chicago, IL
60604
(Certified Mail)
Harry M. Coven, Esq., Gould & Ratner, 300 W. Washington St.,
Suite 1500, Chicago,. IL 60606
(Certified Mail)

/ejp

1786

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

VESTA MINING COMPANY,
Contestant

.JUL 2 4 1984

CONTEST PROCEEDINGS

v.

Docket No. PENN 83-212-R
Order No. 2104660; 6/16/83

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

. Docket No. PENN 83-225-R
Order No. 2105163-02; 7/25/83
Vesta Mine

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

CIVIL PENALTY PROCEEDING
Docket No. PENN 83-230
A.C. No. 36-00962-03552
Vesta Mine

VESTA MINING COMPANY,
Respondent
DECISION
Appearances:

Barbara L. Krause, Esq., Smith, Heenan,
Althen and Zanolli, Washington, D.C., for
Contestant/Respondent;
James Crawford, Esq., Office of the Solicitor,
U.S. Department of Labor, for Respondent/
Petitioner.

Before:

Judge Kennedy

The captioned review-penalty proceedings are before me on
the parties' motion to approve settlement of tw9 of the three
·violations charged and to vacate the 104(d) (2) Order involving
an alleged roof control violation.
The matters were first considered at a prehearing/settlement
conference that resulted in an agreement to settle the sanding
devices (Order No. 2105135) and the shelter holes (Order No.
2105163) charges at the amounts initially assessed, $750 and
$130 respectively.
Thereafter, the roof control violation (Order No. 2104660)
came on for an evidentiary hearing in Pittsburgh, Pennsylvania,
on March 14, 1984. At the close of the solicitor's case, the
operator moved to dismiss for failure to prove a prima facie
case. For reasons best appreciated by reading the transcript,

•

the solicitor did not oppose. Whereupon the trial judge
vacated the order and dismissed the proposal for penalty.
The premises considered, therefore, it is ORDERED that
(1) the motion to approve settlement be, and hereby is,
GRANTED and the contest of the shelter holes order (Docket
PENN 83-225-R) DISMISSED, (2) the contest of the roof control
order (Docket PENN 83-212-R) is GRANTED, and (3) the order
is vacated and the proposal for the penalty thereon are
DISMISSED. It is FURTHER ORDERED that the operator pay the
amount of the penalty ag~eed upon, 880, allocated as
initially assessed, on or before F
August 3, 1984.

Joseph B. Kennedy
Administrative Law
Distribution:
Barbara L. Krause, Esq., Smith, Keenan, Althen & Zanolli,
1110 Vermont Avenue, N.W., Washington, D.C. 20005
(Certified
Mail)
James B. Crawford, Esq., Office of the Solicitor, U.S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203
(Certified Mail)

/ejp

•

1788

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

CIVIL PENALTY PROCEEDING

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

Docket No. KENT 84-151
A. C. No.· 15-03881-03520
Pyro No. 9 Slope
William Station

v.
PYRO MINING COMPANY,
Respondent
DECISION
Appearances:

Darryl A. Stewart, Esq., Office of the Solicitor,
u. s. Department of Labor, Nashville, Tennessee,
for Petitioner;
William M. Craft, Assistant Safety Director,
Sturgis, Kentucky, for Respondent.

Before:

Judge Steffey

An expedited hearing was held on February 28, 1984, in
Evansville, Indiana, pursuant to section 105(d), 30 u.s.c. §
815(d), of the Federal Mine Safety and Health Act of 1977 with
respect to two notices of contest filed by Pyro Mining Company
in Docket Nos. KENT 84-87-R and KENT 84-88-R. I rendered a
bench decision, but the final decision containing the bench decision was not issued until May 15, 1984, because the transcript of the expedited hearing was not received until May 1,
1984.
The hearing with respect to the issues raised in the contest proceeding was consolidated with the civil penalty issues
which would be raised when the Secretary of Labor filed a proposal for assessment of civil penalty seeking to have penalties
assessed for the two violations which had been cited in the
orders of withdrawal which were the subject of the notices of
contest. I stated on page one of the decision issued in the
contest proceeding that I would decide the civil penalty issues
on the basis of the record made in the contest proceeding after
I had received the civil penalty case pertaining to the violations involved in the contest proceeding. The civil penalty
case was thereafter assigned to me on June 27, 1984, in the
above-entitled proceeding, and if the Secretary of Labor's proposal for assessment of civil penalty had requested that penalties be assessed for only the two violations cited in the two
orders already considered at the hearing held in the contest

1789

proceeding, this supplemental decision would be able to dispose
of all issues raised in Docket No. KENT 84-151. The proposal
for assessment of civil penalty seeks, however, to have a penalty assessed with respect to a third violation alleged in a
citation which was not the subject of the hearing held in the
contest proceeding. Therefore, this decision will dispose of
only the two violations involved in the· contest proceeding in
Docket Nos. KENT84--87-R and KENT 84-88-R.
For the reason stated in the preceding paragraph, a prehearing order will be issued with respect to the third violatioq involved in Docket No. KENT 84-151 and a subsequent hearing will be held with respect to the issues pertaining to that
citation if the parties do not settle all issues concerning the
third violation involved in Docket No. KENT 84-151.
Issues
In most civil penalty cases, the issues are whether violations occurred and, if so, what civil penalties should be
assessed, based on the six criteria set forth in section llO(i)
of the Act.
In this proceeding, however, Pyre Mining Company
(hereinafter referred to as Pyro) stipulated at the hearing held
in the contest proceeding that the violations occurred and that
the only issue it was raising was whether the inspector had properly issued the orders under unwarrantable-failure section 104
(d) (1) of the Act (Tr. 4; 133). 1/ I held in my decision issued
May 15, 1984, in Docket Nos. KENT 84-87-R and KENT 84-88-R that
Order No. 2338185 was properly issued under section 104(d) (1)
and that Order No. 2338186 was not properly issued under section
104(d) (1) of the Act. Paragraph (B) of my decision vacated
Order No. 2338186 insofar as. it purported to have been issued
under section 104(d) (1) of the Act and modified the order to a
citation issued under section 104(a) of the Act with a check
mark in the "significant and substantial" block shown on such
citation. 2/
·

1/ All references to transcript and exhibits are to the record
made at the hearing held in Docket Nos. KENT 84-87-R and KENT
84-88-R.
2/ In Consolidation Coal Co., 6 FMSHRC 189 (1984), the Connnission held that an inspector may properly designate a violation
cited pursuant to section 104(a) of the Act as being "significant and substantial" as that term is used in section 104(d) (1)
of the Act, that is,· that the violation is of such nature that
i t could significantly and substantially contribute to the
cause and effect of a mine safety or health hazard.

1790

Since Pyro has already stipulated that the violations occurred, the only issue remaining for me to consider in this supplemental decision is what civil penalty should be assessed for
each violation. Four of the six assessment criteria set forth
in section llO(i) of the Act may be given a general evaluation
which will be applicable to both violations. The proposed assessment sheet in Docket No. KENT 84-151 shows that Pyro produces about 1,665,000 tons of coal annually at the Pyro No. 9
Slope and produces over 3 million tons of coal annually on a
company-wide basis. Those figures support a finding that Pyro
is a large operator and that penalties in an upper range of magnitude should be assessed in this proceeding to the extent that
they are determined under the criterion of the size of the operator's business.
Pyro did not introduce at the hearing any evidence pertaining to its financial condition. The Commission held in Sellersburg Stone co., 5 FMSHRC 287 (1983), aff'd Sellersburg Stone Co.
v. FMSHRC,
F.2d
, 7th Circuit No. 83-1630, issued
June 11, 1984;-that if an operator fails to present any evidence
concerning its financial condition, that a judge may presume
that the operator is able to pay penalties. Therefore, I find
that payment of civil penalties will not adversely affect Pyro's
ability to continue in business. Consequently, it will not be
necessary to reduce any penalties determined pursuant to the
other criteria under the criterion of whether the payment of penalties will cause the operator to discontinue in business.
The criterion of whether an operator demonstrates a goodfaith effort to achieve rapid compliance after a violation is
cited is generally evaluated on the basis of whether the operator abates the violation within the period of time given by the
inspector.
Inspectors do not provide an abatement period in.
withdrawal orders. Since both of the violations here under consideration were cited in withdrawal orders, it is not possible
to evaluate the criterion of good-faith abatement on the basis
of whether Pyro corrected the violations within the time given
by the inspector. The inspector's testimony, however, shows
that both of the violations were abated promptly. The violation
cited in Order No. 2338185 was abated within 30 minutes after
the violation was cited by the hanging of red ribbons which
serve as a warning of unsupported roof in Pyro's mine (Tr. 14;
Exh. 1). The other violation was abated in a period of 2 hours
and 25 minutes by installation of two rows of roof bolts in an
area of unsupported roof.
The inspector remained at the site
of the unsupported.roof until the bolts had been installed and
he believed that Pyre had done the necessary abatement work as
rapidly as it could have been accomplished in view of the fact
that a mechanic was working on the roof-bolting machine's brakes
and also was repairing the machine so as to make it apply a proper amount of torque to the roof bolts being installed (Tr. 76-77).

1791

The evidence discussed above supports a finding that Pyro
demonstrated a good-faith effort to achieve compliance after
each violation was cited. It is my practice to reduce a penalty
otherwise determined under the other criteria if an operator
shows an outstanding effort to achieve rapid compliance and to
increase the penalty determined under the other criteria if the
operator fails to make a good-faith effort to achieve rapid compliance. If the operator makes a normal good-faith effort to
achieve compliance, as occurred in this instance, I neither increase nor decrease the penalty under the criterion of goodfaith compliance.
No exhibits were presented to show Pyro's history of previous violations, but the parties stipulated that Pyro has been
cited for 21 previous violations of section 75.200 in the period
between January 9, 1983, and the citing on January 24, 1984, of
the two violations of section 75.200 here involved {Tr. 4-6).
S. REP. NO. 95-181, 95th Cong., 1st Sess. 43 (1977), made the
following comment about using the criterion of history of previous violations in assessing penalties:
In evaluating the history of the operator's violations
in assessing penalties, it is the intent of the Committee that repeated violations of the same standard,
particularly within a matter of a few inspections,
should result in the substantial increase in the,amount
of the penalty to be assessed. Seven or eight violations of the same standard within a period of only a
few months should result, under the statutory criteria,
in an assessment of a penalty several times greater
than the penalty assessed for the first such violation. lf
It has been my practice to assess a part of a civil penalty
under the criterion of history of previous violations when there
is an indication, as there is here, that the operator has repeatedly violated the same section of the regulations which is
under consideration. It is a fact, however, that Congress reviewed some statistics showing the amou~ts of the penalties
which MSHA had imposed for the repeat violations referred to in
the legislative history. In this proceeding, I only have a
stipulation of "21 prior of 75.200" {Tr. 6) to use as .the basis
for assessing a portion of the penalty under the criterion of •
history of previous violations. The Commission majority in
U. S. Steel Corp. v. MSHA, 6 FMSHRC
, decided June 26, 1984,
Docket No. LAKE 81-102-RM, et al., reduced one of my civil penalties from $1,500 to $400 because they did not think there was
substantial evidence to support my findings. In light of the
majority's ruling in the u. s. Steel case, I conclude that
there is not sufficient.evidence to support findings for

3/ Reprinted in LEGISLATIVE HISTORY OF.THE FEDERAL MINE SAFETY
AND ijEALTH ACT OF 1977, at 631 (1978).

1792

assessing any part of the penalty under the criterion of
history of previous violations.
Order No. 2338185
I have already considered above the four criteria of the
size of the operator's business, the question of whether payment of penalties will cause the operator to discontinue in
business, the operator's good-faith effort to achieve compliance, and the operator's history of previous violations. Consideration of the remaining criteria of negligence and gravity
requires specific discussion of the violations here at issue.
Order No. 2338185 was issued on January 24, 1984, under section
104(d) (1) of the Act and cited a violation of section 75.200
becaus~ (Exh. 1) :
The approved roof control plan (dated 8/12/83, see
page 4, paragraph 12C) was not being followed on
the No. 5 .unit, ID No. 005, in that the last open
crosscut between Nos. 5 and 4 entries (100 feet
inby Spad No. 1380 #5 entry) was unsupported for
an area of approximately 15 ft. long by 20 ft.
wide and the area had not been dangered off, so
as to warn persons that the area was unsupported.
In my decision issued May 15, 1984, in the contest proceeding,
at pages 8 and 9, I upheld the issuance of Order No. 2338185
under the unwarrantable-failure provisions of the Act beca:use
the section foreman on the shift preceding the writing of the
order had failed to assure that devices were installed to warn
miners of the fact that the roof was unsupported.
A mitigating fact6r in assessing the degree of negligence
may be found in the fact that the preshift examiner, who inspected the crosscut here involved j,ust prior to the writing
of the order, noticed that the roof was unsupported and indicated in the preshift book (Exh. C) that the area of unsupported roof had been dangered off. Nevertheless, mechanics
were working on the section at the time the order was issued
and the inspector could find no warning devices outby the .
crosscut (Tr. 54; 59). The inspector said that two other roof_
falls had occurred in the No. 5 Unit and that his specific purpose for being in the No. 5 Unit on the day the order was
written was to examine the site of an unintentional roof fall
which had just been cleaned up prior to the inspector's arrival
in the No. 5 Unit (Tr. 40; 44).
The inspector further testified that during close-out in-.
spection conferences held on April 22, 1983, May 12, 1983,
June 16, 1983, and November 11, 1983, he had warned Pyre's

1793

supervisory personnel of the fact that the miners were failing
to hang the required warning devices at the site of unsupported
roof (Tr~ 82). There is considerable evidence, therefore, to
support a finding that a high.degree of n~gligence was associated with the violation of section 75.200 cited in Order No.
2338185. Consequently, an amount of $500 will be assessed for
that violation under the criterion of negligence.
The preponderance of the evidence shows that the roof in
the crosscut was hazardous. The inspector testified that he
saw "Nothing that would indicate to me it was fixing to fall
in •.••• However, you had at least two falls on this section
that I knew about" (Tr. -44). The mechanic who had been sent
to repair the roof-bolting machine which was being used in the
crosscut at the time the order was written testified that there
were "heads" or "big pieces of rock that hang from the roof"
near the site where the roof-bolting machine was working to install roof bolts in the unsupported roof and that he asked the
operator of the roof-bolting machine to back the machine toward
•the No. 5 entry so that it would be in a safer place than it
was then situated for him to repair it {Tr. 102-103).
The operator of the roof-bolting machine gave the following testimony about the condition of the roof (Tr. 114-115):
He [the mechanic] said, "I got to work on the
brakes." Right up above where I had put the pins,
there was two big heads in the middle of the crosscut, and which recently I've had one to fall out
and almost get me. So I backed the pinner up, and
Mike said, "No, there is some bad top here." So I
just pulled the pinner through the crosscut.
The testimony of the inspector and two of Pyre's witnesses
shows that the roof was very hazardous in the crosscut where
Pyre's section foreman had failed to have the warning devices
installed. In view of the evidence showing that the violation
was very serious, I believe that a penalty of $1,000 should be
assessed under the criterion of gravity. Since, however, the
Commission majority in the U. S. Steel case, hereinbefore cited,
have indicated that they think my assessment of civil penalties.
is excessive, I shall reduce that amount to $500.
Inasmuch as a large operator is involved, a total penalty
of $1,000 does not appear to be excessive, bearing in mind that
an amount of $500 is being assigned under the criterion of negligence and an additional amount of $500 is being assigned under the criterion of gravity.

1794

Citation No. 2338186
In my decision issued on May 15, 1984, in the contest p~o
ceeding, I found, at page 10, that the preponderance of the
evidence failed to show that Pyro should be held liable for the
negligence of the operator of the roof-bolting machine when he
acted aberrantly and pulled the roof-bolting machine through
the area with unsupported roof in his effort to find a place
where the mechanic could repair its brakes without being exposed
to hazardous roof. Nacco Mining Co., 3 FMSHRC 848 (1981). At
the end of that shift during which the roof-bolting machine's
oper.ator had pulled i t through the area of unsupported roof,
Pyre's management issued a company citation reprimanding him
for having done so and suspended him from work for 1 day (Tr.
121-122).
I also noted in my decision in the contest proceeding that
the Commission in Southern Ohio Coal Co., 4 FMSHRC 1459 (1982),
had distinguished between relying upon the acts of a rank and
file miner for the purpose of finding that a violation had occurred, as opposed to relying upon the acts of a rank and file
miner for the purpose of imputing negligence to the operator.
In other words, an operator is liable for the occurrence of a
violation without regard to fault (U.S. Steel Corp., 1 FMSHRC
1306 (1979)), but the negligence of a rank and file miner should
not be imputed to the operator for the purpose of assessing penal ties.
For the foregoing reasons, my decision in the contest proceeding modified Order No. 2338186 to a citation issued under
section 104(a) of the Act with a check in the block showing that
the violation was "significant and substantial". As I have
noted above, the Commission has already held that the negligence
of a rank and file miner should not be attributed to the operator for assessing civil penal ties. Conse.quently, no portion of
the penalty for the violation of section 75.200 involved in
Citation No. 2338186 should be assessed under the criterion of
negligence.
I believe that assignment of ·no portion of the penalty under the criterion of negligen.ce is especially warranted
in this case in view of Pyre's having cited the miner for the
violation and its action of having suspended him for 1 day for .
the unfortunate act done in haste in an effort to place .the
roof-bolting machine in a safe place for the mechanic to repair
it.
The gravity of the violation involved in Citation No.
2338186 is precisely the same as that considered above in
assessing a penalty for the violation of section 75.200 cited
in Order No. 2338185 because the unsupported roof under which
the operator of the roof-bolting machine passed in trying to
find a safe working place for making repairs is the same area
. of unsupported roof which was involved in the violation cited

1795

in Order No. 2338185. There is a difference in assessing the
penalty, however, because in the previous violation, Pyre's
management was responsible for the fact that no device had been
installed to warn miners to avoid passing under the unsupported
roof in 'the last open crosscut. In this instance, while the
unsupported roof exposed the operator of the roof-bolting machine
to possible death from a roof fall, he was exposed to that hazard
through no fault of Pyre's management.
The following question and answer show that it would be
improper to assess a large penalty under the criterion of gravity
in this instance (Tr. 121):
Q. Had you ever been told by anybody in management not to go under unsupported roof?

A. Yes, sir. I knew better. I just wasn't
thinking at the time. He didn't--! wasn't wanting
him working under those heads, and top was bad behind him. So I just automatically pulled it through.
And after I realized, when I got him through, realized what I had done, I turned the pinner around and
started pinning from my way in so I wouldn't back my
pinner back.
It should also be noted that the pulling of the roof-bolting
machine through the ·area of unsupported roof occurred on a nonproducing shift (Tr. 94-95), that the operator of the roofbolt~ng machine had been sent by a foreman to the No. 5 Unit to
do the roof bolting as "catch-up" work (Tr. 112), and that there
was no section foreman on duty in the No. 5 Unit at the time the
roof was being bolted (Tr. 113).
In light of the circumstances described above, I believe
that a minimal penalty of $25 should, be assessed under the criterion of gravity, taking into consideration that a large operator is involved and that assessment of a penalty is mandatory
under the Act. Tazcp, Inc., 3 FMSHRC 1895 (1981).
WHEREFORE, it is ordered:

-

Within 30 days after issuance of this decision, Pyro Mining
Company shall pay civil penalties totaling $1,025.00 for the
violations listed below:
Order No. 2338185 1/24/84 § 75.200 ••••••••.•• $1,000.00
Citation No. 2338186 1/24/84 § ·75.200 ••••••••
25.00
Total Penalties Assessed in This Proceeding •• $1,025.00

~O.o/;t-~

Richard c. Steffey
Administrative Law Jud~e

1796

Distribution:
Darryl A. Stewart, Esq., Office of the Solicitor, U. s. Department of Labor, Room 280, u. S. Courthouse, 801 Broadway, Nashville, TN 37203 (Certified Mail)
William M. Craft, Assistant Director of Safety, Pyro Mining
Company, P. o. Box 267, Sturgis, KY 42459 (Certified Mail)

yh

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

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
ON BEHALF OF Z.B. HOUSER,
Complainant

JUL.261984

DISCRIMINATION PROCEEDING

.
.

.

v.
NORTHWESTERN RESOURCES CO.,
Respondent

Docket No. WEST 83-101-D
MSHA Case DENV CD-82-34
Grass Creek Mine

DECISION
Appearances: James H. Barkley, Esq., and Robert J. Lesnick, Esq.,
Office of the Solicitor, U.S. Department of Labor,
Denver, Colorado,
for Complainant;
Edward Bartlett, Esq., Northwestern Resources
Company, Thermopolis, Wyoming,
for Respondent.
Before:

Judge Vail

STATEMENT OF THE CASE
This case involves a discrimination complaint brought by the
Secretary of Labor, on behalf of Z.B. Houser (Houser) under
section 105Cc)C2) of the Federal Mine Safety and Health Act of
1977, 30 u.s.c. § 801 et seg. (the Act) against Northwestern Resources Company (Northwestern). Houser alleges that Northwestern
discriminarily·retaliated against him by recalling all of the
other laid off mine employees except complainant after a
production shut down of the mine in violation of section 105(c)
of the Act. Northwestern contends that Houser was not rehired
because of his unsatisfactory work performance and furth~r
contends that the complaint is barred by time limitations.
A hearing was held, pursuant to notice, on March 21 and 22,
1984, in Thermopolis, Wyoming. Post-hearing briefs have been
filed by both parties. Based on the evidence presented at the
hearing and the contentions of the parties, I make the following
decision. To the extent that the contentions of the parties are
not incorporated in this decision, they are rejected.

1798

STATUTORY PROV18IONS
Section 105(c)Cl) of the Act provides in pertinent part 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 chapter
because such miner, representative of miners, or
applicant for employment has filed or made a complaint
under or related to this chapter, 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 ••••
Section 105Cc)(2) of the Act, provides in pertinent part as
follows:
Any miner or applicant for employment or representative
of miners who believes that he has been discharged, interfered with, or otherwise discriminated against by any
person in violation of this subsection may, within 60
days after such violation occurs, file a complaint with
the Secretary alleging such discrimination.
Section 105(c)(3) of the Act, provides in pertinent part as
follows:
Within 90 days of the receipt of a complaint filed
under paragraph (2), the Secretary shall notify, in
writing, the miner, applicant for employment, or representative of miners of his determination whether a
violation has occurred. If the Secretary, upon investigation, determines that the provisions of this
subsection have not been violated, the complainant shall
have the right, within 30 days of notice of the Secretary's determination, to file an action in his own behalf before the Commission, charging discrimination or
interference in violation of paragraph Cl) ••••
FINDINGS OF.FACT
1. Northwestern has operated a surface coal mine called the
Grass Creek Mine at a location 35 miles from Thermopolis, Wyoming
since 1979. In conjunction with the Grass Creek Mine, it maintained a load-out facility along the railroad tracks in Kirby,

1799

Wyoming, which is approximately 60 m1~es from the mine. The
'load-out facility at Kirby consisted of a parcel of land
approximately 100 feet wide by 400 feet long. Coal was hauled by
truck from the mine and stockpiled at the Kirby site until it
could be loaded in railroad cars.
2. The period of time involved in this case is from October
1, 1981 to September, 1982. Houser was hired by Northwestern as
a crusher operator commencing work at the Grass Creek mine on
October 1, 1981 (Transcript at 27). On that date, there were two
other employees at the mine, Frank Henning, a dozer operator and
Roger Sprague, the mine foreman. Monte Steffans, mine manager,
maintained an office in Thermopolis, Wyoming. Dick Meisinger
worked at the Kirby load-out area loading coal on the rail cars.
3. Harold Heeter was hired to work at the Grass Creek mine
as a crusher operator in November, 1981 (Tr. at 154). Ralph L.
Allen was hired as an equipment operator during the latter part
of November, 1981 (Tr. at 185). Dennis Householder was hired
sometime after the above date as a temporary laborer to help
Heeter build the scale and a scale house (Tr. at 30).

4. In December, 1982, Houser was transferred to the Kirby
load-out area where he remained for approximately two months
before being transferred back to the mine (Tr. at 46). Hauser's
residence was located in Kirby, approximately 300 to 400 yards
from the load-out site. A 992 Caterpillar Tractor equipped with
a ten yard capacity bucket was furnished the employee at the
load-out area to stockpile coal, keep the area clean so the
trucks could dump their loads, and to load coal on the railroad
cars for shipment to Northwestern's customers. Also, the
employee assigned to this job was expected to do maintenance work
on the tractor including lubrication. The large size of the
bucket on this machine made it possible for the operator to clean
up a truck load of coal and stockpile it in approximately five
minutes. A rail car could be loaded with a hundred tons of coal
in ten to fifteen minutes. Usually there were ten rail cars to a
shipment (Tr. at 37, 38). Houser had considerable "free time" at
the Kirby site which he spent greasing the tractor or sitting
around waiting for the trucks to arrive. At times he went to his
residence for coffee or to use the toilet and sometimes he would
run his hunting dogs up and down the road (Tr. at 43).
5. The trucks hauling coal from the mine to the load-out
site were operated by independent contractors who were paid by
the load. Hauling of coal commenced early in the morning and
continued at times to eight or nine o'clock at night (Tr. at 41).

1800

Heuser's regular hours at Kirby were from 7 o'clock in the
morning to 3:30 p.rn. with a half hour off for lunch. On some
occasions, the truck drivers would use the loader at the mine to
load their trucks and the loader at Kirby to clear an area to
unload. This happened when they started early and worked beyond
the Northwestern's employees regular working hours.

6. There is a sharp conflict in the testimony on the
question of whether Houser did a satisfactory job while he was
assigned to the Kirby load-out area. I generally accept the
testimony of Roger Sprague, Heuser's immediate supervisor, and
Thomas c. Anderson, an independent contractor hired by the
respondent to haul coal from the mine to Kirby during the period
involved here. The main thrust of this testimony was that Houser
was not always present when the trucks pulled in to unload which
caused the drivers to wait for him to show up (Tr. at 319).
Sprague testified that he received complaints about this from
the truck drivers. Monte Steffans testified that he also found
the complainant was absent from the load-out site when he was
supposed to be there (Tr. at 221, 222). Anderson testified that
after Meisinger replaced Houser at the Kirby site, those problems
no longer occurred. However, he did admit that they changed the
unloading area to a better site for their purposes (Tr. at 319).
Sprague also testified that the loader was not maintained
properly by Houser, that rail cars were overloaded, and Houser
objected to using a smaller, substitute loader when the larger
machine was not operating due to the engine being repaired (Tr.
at 228).
7. After Houser had worked at the load-out facility for
approximately two to three months, he was transferred back to the
mine to work as lead man during the night shift. Houser operated
the loader and Allen ope~ated the crusher. The transfer occurred
when Meisinger was involved in an automobile accident and was
sent to the Kirby load-out area which was considered to be an
easier job. In April of 1982, the night shift was suspended and
Houser was transferred to the day shift (Tr. at 45-48). During
this period, Henning continued to operate the dozer removing
overburden and breaking up the coal (Tr. at 49). Houser loaded
the coal in the crusher and, after it was crushed, into the
trucks hauling to Kirby (Tr. at 50). Allen operated the crusher
and occasionally traded off with Houser on the loader. Heeter
was the utility man and Householder was a laborer.
8. In the spring of 1982, Houser expressed concern to
Sprague about the dusty conditions at the mine (Tr. at 56).

1801

Sprague then furnished him with painter's type paper dust
masks. Houser did not find these satisfactory so Sprague
furnished a better type of mask (Tr. at 57).

9. During the spring of 1982, Houser operated a 7251 Terex
front-end loader equipped with a cab. The glass in the side
windows were both broken and the windshield had a gap between it
and the frame. The rubber boots around the pedals and levers to
keep dust out were not effective (Tr. at 55). Houser complained
to Sprague about the coal dust that entered the cab of the loader
(Tr. at 56). Glass in the doors of the Terex operated by
complainant were broken several times due to the door not being
kept latched.
It was replaced as was the windshield (Tr. at
245).
10. In the middle of May i982, a Mine Safety and Health
Administration CMSHA) inspector arrived at the Grass Creek mine
and placed dust sampling devices on Houser and Allen for a dust
test. As a consequence of the results of this test, Northwestern
was issued a citation on May 14, 1982, alleging that the average
concentration of respirable dust in a designated work position
exceeded the allowable amount. Northwestern was directed to take
corrective action to lower the concentration of dust and sample
each normal work shift until five valid respirable dust samples
were taken (Exh. C-1).
11. Houser also complained on numerous occasions to Sprague
about the steering mechanism on the Terex loader. He also wrote
this on the machine's operator's log. Sprague's response was to
keep on running it. After Sprague operated the loader at a later
date, mechanics came out to the mine and repaired it (Tr. at 61,
62).
12. On June 10, 1982, Steffans was advised that a major coal
customer of the Grass Creek mine was curtailing its purchases.
Steff ans telephoned Sprague and discussed which employees at the
mine would be "laid~off" due to the resulting reduction in coal
production. It was decided that Henning would be retained to
continue work on building the scale and scale house. Heeter
would continue working operating the dozer for the stripping crew.
Four employees were to be laid-off including Houser, Allen,
Meisinger, and Householder. Steffens and Sprague were not
laid-off. This was ultimately Steffan's decision although
he discussed it with Sprague (Tr. at 356-358).
13.

On June 11, 1982, Steffans first went to his office

1802

where he prepared pay-checks for the four employees to be
terminated. After getting into his vehicle to go to the mine, he
remembered that he also had to fill out termination reports on
each miner.
He returned to the office and prepared the required
forms (Exh. C-2). After completion of the termination forms,
Steffans dro~e to the mine arriving around the lunch hour.
Steffans had mistakenly signed the four forms on the line
designated for the supervisor's signature which would be Sprague.
Steffans showed the forms to Sprague, crossed out his signature
and placed it on the line designated "Reviewed". Sprague signed
the forms as "supervisor". Each employee signed the termination
report presented to him. After reviewing the termination report,
Houser inquired of Sprague as to why he was rated lower than the
other employees (Tr. at 254). Also, he wanted to know what
"initiative" meant. The term was explained to him by Steffans
and Sprague (Tr. at 363). Steffans had rated Meisinger the best
employee of the four terminated, followed by Allen, Houser, and
Householder (Tr. at 365)
14. Approximately two weeks after his termination, Houser
met Steff ans at a grocery store in Thermopolis and had a conver· sation in which Steffans indicated that the mine would start
operating again soon (Tr. at 65). On July 19, 1982, Meisinger
and Allen were called back to work at the mine (Tr. at 65).
Householder returned to work on approximately September 1, 1982
(Tr. at 66). After Meisinger and Allen returned to work, Houser
telephoned Steffans to find out when he would be going back. He
did not remember the date but thought it was in July, 1982.
Steff ans told Houser that he was not being called back to work
because Sprague did not want him back. Houser went to the the
off ice and talked to Steffans about the reasons Sprague did not
want him back and was told that Steff ans would check further into
the matter (Tr. at 69).
15.
In September, 1982, after Householder, who was
originally employed as a temporary laborer, returned to work at
the mine, Houser concluded he was not going to be called back to
work and contacted Arthur Kunigee, the local business agent for
the union that covered the employees at th.e mine. The agent
contacted Mr. Neill, respondent's vice president, about the
reason for not recalling Houser. Neill referred the inquiry to
Steffans. In reply, Neill sent the business agent a memorandum
from Steff ans which contained the four following reasons for not
rehiring Houser:
1. During the course of his employment it was found
that the proper maintenance of equipment was not

1803

being performed by him: Example - loader bucket pins
had not been lubricated one week after replacement
resulting in them being dry and having to replace
them again.
2. During his tenure at the loadout site in Kirby,
several times when the foreman went to check on how
things were going, employee could not be found at
the job site. It was discovered by the foreman that
he was running his dogs during working hours.
3. Due to the fact that he was absent from the Kirby
area at different intervals the coal stockpile was
not worked regularly and the trucks did not have a
place to dump until he would show up and move and
load coal.
4. Direct insubordination of orders from the mine foreman.
Z/B was told to load out trucks at the mine pit
with two or three buckets of fines per truckload of
coal, but was continually trying to load complete
truckloads of coal with the fines materials.
CExh. C-3)~
16. On September 22, 1982, Houser filed a complaint of
discrimination with MSHA {Tr. at 73). On November 15, 1982, MSHA
notified him by letter, with a copy to Northwestern, that a
determination. had been made that a violation of section 105{c) of
the Act had not occurred. On July 5, 1983, the· Secretary of
Labor filed a complaint of discrimination on behalf of Houser
against Northwestern.
ISSUES
1. Is the complaint barred by the time limitations
contained in lOSCc) of the Act?
2. Did Northwestern violate § 105Cc) when, after a lay off,
it rehired other employees but not Houser?
DISCUSSION
Heuser's initial complaint of discrimination was filed with
MSHA on September 22, 1982, which was approximately three months
after he had been laid off with other employees of the Grass
Creek mine. However, Houser did not know he was not to be recalled until the middle of July, 1982 during a conversation with
Steffans (Finding No. 14). I find the original filin; date was

1804

within the 60 days provided by section 105(c)(2). After an
investigation by MSHA, the Secretary made a determination that no
act of discrimination had occurred and so notified Houser and
Northwestern on November 15, 1982. However, on July 5, 1983, the
Secretary of Labor reversed this decision and filed a complaint
of discrimination with the Federal Mine Health and Safety Review
Commission which was approximately 12 months after the complainant became aware he was not going to be called back. The Act
provides in section 105(~)(2) that if the Secretary finds a
violation, "he shall immediately file a complaint with the
Commission." The Secretary argues in his brief that the decision
to file the complaint in this case occurred after a re-evaluation
of Houser's case following discovery of material evidence in a
companion case (Complainant's Brief dated May 30, 1984).
I conclude that none of the filing deadlines involved here
are jurisdictional in nature. Rather, they are analogous to
statutes of limitation which may be waived for equitable reasons.
This determination is in line with prior decisions under the 1969
Coal Act which held that filing deadlines in discrimination case~
are not jurisdictional. Christian v. South Hopkins Coal Co., 1
FMSHRC 126, 134-36 (1979). The same result was reached under
section 111 of the 1977 Act, which directs mine operators to
compensate miners while withdrawn from a mine pursuant to a
government order. Local 5429, United Mine Workers v. Consolidation Coal Co., 1 FMSHRC 1300 (1979).
The proper test is whether tolling the filing period is
consonant with the purposes of the statute. American Pipe and
Construction Co. v. Utah, 414 U.S. 538, 557-58 (1974). Congress
spoke plainly on the subject when it declared that the 60 day
filing period "should not be construed strictly where the filing
of a complaint is delayed under justifiable circumstances." S.
Rep. No. 95-181, 95th Cong., 1st Sess. at 36, reprinted in,
(1977) U.S. CODE CONG & AD. NEWS at 3436. The deadlines imposed
on the Secretary also "are not intended.to be jurisdictional.
The failure to meet any of them should not result in the
dismissal of the discrimination proceedings." Id.
The Secretary's delay in processing the complaint in this
case cannot defeat the action in light of the legislative history
as quoted above. Further, it is commonly held that the government is not affected by the doctrine of !aches when enforcing a
public right. See Intermountain Electric Co., 1980 CCH OSHD
Para. 24,202 (10th Cir. 1980>: Occidental Life Insurance Co., v.
EEOC, 432 U.S. 355 (1977): Nabors v. NLRB, 323 F. 2d 686, 688
(5th Cir. 1963). I find no merit in Northwestern's argument as
to the timeliness of filing the complaint in this case and reject
it.

1805
--~

Northwes~ern also argues that the Secretary has no authority
to file a complaint with the Commission after it had previously
determined that no violation of discrimination occurred.
However, Northwestern failed to cite any authority for such a
position and in view of the legislative history and cases quoted
above, this position is not persuasive. Northwestern has not
claimed that it was prejudiced in any way by this delay in filing
the complaint but rather argues that such a factor should not be
considered. I reject this and believe that if any defense is
valid to such a delay, it must involve a provable prejudice.
That has not been done here and therefore Northwestern's arguments are rejected.

As to the merits of this case, it is necessary to consider
the Commission's precedents in the area of discrimination law.
The basic analytical guidelines in this field have been recited
by the Commission in several recent cases as follows:
In order
to establish a prima facie case of discrimination under section
105(c) of the Mine Act, a complaining miner bears the burden of
production and proof to establish Cl) that he engaged in protected activity and (2) that the adverse action complained of was
motivated in any part by that activity. Secretary on behalf of
Pasula v. Consolidation Coal Co. v. Marshall, 2 FMSHRC 2786,
2799-2800 (October 1980), rev'd on other grounds sub nom.
Consolidation Coal Co., v. Marshall, 663 F. 2d 1211 C3rd Cir.
1981); and 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 way motivated by
protected activity. If an operator cannot rebut the prima facie
case in this manner, it may nevertheless affirmatively defend by
proving that Cl) it was also motivated by the miner's unprotected
activities, and (2) it would have taken the adverse action in any
event for the unprotected activities alone. The operator bears
the burden of proof with regard to the affirmative defense. Haro
v. Magma Copper Co., 4 FMSHRC 1935, 1937 (November 1982). The
Ultimate burden of persuasion does not shift from the complainant
Robinette, 3 FMSHRC at 818 n. 20. See also Boich v. FMSHRC, 719
F. 2d 194 (6th Cir. 1983); and Donovan v. Stafford Constr. Co.,
No. 83-1566, D.C. Cir. (April 20, 1984)Cspecifically approving
the Commission's Pasula-Robinette test>. The Supreme Court has
approved the National Labor Relations Board's virtually identical
analysis for discriminaton cases arising under the National Labor
Relations Act. NLRB v. Transportation Management Corp.,
U.S.
I
76 L. Ed. 2d 667 (1983).

1·806
~

..

•
The uncontroverted evidence in this case shows that during
the spring of 1982, Houser made several complaints to Sprague,
the mine foreman and his immediate supervisor, about the coal
dust ~n the pit of the Grass Creek Mine. These complaints
resulted in Sprague furnishing paper painter's type face masks.
After further complaints by Houser that the paper masks were n:ot
satisfactory, Sprague secured a better type face mask (Tr. at
54-56). During this same period of time, Houser also complained
to Sprague several times that the steering mechanism on the Terex
loader he was assigned to operate was defective. Sprague replied
that Houser was not to worry and to keep running the machine (Tr.
at 61). After Sprague operated the machine and observed the
problem, the steering mechanism was repaired (Tr. at 62).
I find these two actions on the part of Houser to constitute
protected activity under the Act. The amount of coal dust
allowed to exist in the pit and around the cab of the Terex
loader prompted MSHA to issue a dust citation in May, 1982. This
confirms that there was a safety problP-m and merit to Heuser's
complaints. Also, the fact that repairs were necessary to
correct steering problems on the Terex loader further supports
the validity of Houser's concern about the safety of operating
this machine. In accord with the Commission's guidelines, I find
that the dust in the pit and the faulty steering on the Terex
loader were proper safety concerns communicated to Northwestern
and constituted protected activity on the part of the complainant.
This amounts to establishing a prima facie case of discrimination.
The specified issue to be determined, then, is whether the
complainant established the necessary casual connection between
these complaints and respondent's decision not to rehire him
after the lay off.
The evidence in this regard is in dispute. The testimony of
the witnesses confirmed that complainant was not the only
employee who complained about coal dust in the mine pit. Houser
testified that other miners had also expressed concern during the
spring of 1982 about the dust conditions to Sprague and Steffans.
There was conversation about putting air conditioners or
pressurizing the cabs on the crusher and loader (Tr. 143, 144).
Henning testified that one time after a lunch period when he and
Sprague were the last to leave the room, Sprague called Houser a
"damn cry baby" for saying something about dust or the loader
(Tr. at 18 4) •

180'1

Heeter testified that Sprague stated to him on one occasion
that he thought it was Houser who was turning the stuff into MSHA
add that he did not want him back CTr. at 160). Heeter also
stated that he had expressed his concerns about the coal dust in
the pit to Sprague and Steffans. Henning, Allen, and Meisinger
had also discussed the dust conditions several times amongst
themselves and also discussed it in the lunch room with Steffans
and Sprague (Tr. at 164).
Henning and Allen testified that everyone complained about
the dust at the pit including Houser (Tr. at 179, 189). Also,
that Heeter had told each of them that Sprague had told him the
reason Houser was not called back to work after the lay off was
because Sprague thought he was a trouble maker and the one filing
complaints with MSHA (Tr. at 179, 190). Henning indicated that
Heeter told him this in late July or early August, 1982 when the
subject came up as to why Houser was not recalled.
In his testimony at the hearing, Sprague denied he made the
statement to Heeter as to the reasons why Houser was not recalled
(Tr. at 284). He denied that health and safety matters were in
any part a factor in the decision not to recall Houser (Tr. at
287).
This conflict in testimony relates to a material part of
Hauser's burden of proof in that the testimony by Heeter as to
the conversation with Sprague is the only direct evidence which
attempts to show that Houser was not rehired because of his
protected activity. There is no evidence in this case to show
that Houser had contact with or complained to MSHA about safety
and health matters at the Grass Creek mine. There is testimony
that Steffans called the miners "cowards" for going to MSHA after
an electrical inspection in late September or October, 1982.
However this was after Houser no longer was working at the mine
(Tr. at 183). The evidence shows that there were only two
inspections at the Grass Creek mine by MSHA while Houser worked
there including the dust inspection in May, 1982. This does not
appear to be a sufficient number of inspections to support a
conclusion that the retaliatory action by Sprague against Houser
was solely based upon such a cause. I find that the facts do
show that Houser was more vocal than the other miners about dust
conditions in the pit and also complained to Sprague about the
dust masks and filters furnished him. Houser also complained
about coal dust in the cab of the Terex loader because of broken
and misfit glass in the doors and windshield and the machine's
faulty steering mechanism.

1808

Based on all the circumstances above, I conclude that Houser
has established a prima facie case showing that Cl) he engaged in
protected activity and C2) the adverse action complained of was
motivated in part by the protected activity. The Commission in
Secretary on behalf of Chacon, supra, stated" ••. that direct
evidence of motivation is rarely encountered and that reasonable
inferences of motivation may be drawn from circumstantial
evidence showing such factors as knowledge of protected activity,
coincidence in time between the protected activity and the
adverse action, and disparate treatment. 3 FMSHRC at 2510." The
composite of the three later factors appear to apply in this case.
There were the complaints of dust in the pit and the cab of the
loader, the inspection by.MSHA at about the same time, the
failure shortly thereafter not to rehire Houser, and the
statement to Heeter by Sprague that Houser was a "troublemaker
and turning all this stuff into MSHA."
Throughout this proceeding, Northwestern has taken the
position that its reason for not rehiring Houser was not because
of his protected activities, but instead that it made its
decision based upon complainant's overall (poor) job performance
CResp's Brief p. 12). These reasons were listed in Exhibit C-3,.
page 2, as improper maintenance of equipment, poor attendance and
running dogs during working hours at the load-out site at Kirby,
not keeping the coal at Kirby stockpiled so trucks could dump
their loads, and direct insubordination of orders on loading
fines at the mine. In light of the foregoing, I find that
respondent has presented credible evidence to establish that
there were sufficient reasons to create an issue as to why the
complainant was not rehired. Under the Pasula test the
respondent has presented an affirmative defense that even though
part of its motive was unlawful, which it denies, it would have
taken the adverse action against the complainant in any event for
the unprotected activities alone creating a mixed motive type of
discrimination case.
In Wayne Boich d/b/a W. B. Coal Company, supra, the Court
stated as follows:
In summary, the proper test in considering mixed
motives under the Mine Act is that, upon Plaintiff's
showing that an employer was motivated in any part by
an employee's exercise of rights protected by the Act,
the employer has the burden only of producing evidence
of a legitimate business purpose sufficient to create
a genuine issue of fact. The plaintiff, who retains
the burden of persuasion at all times, may of course
rebut the employer's evidence "directly by persuading
the trier of fact that a discriminatory reason more
likely motivated the employer, or indirectly by showing
that the employer's proffered explanation is unworthy

1809

of credence." Burdine, 450 U.S. at 256. The plaintiff's
ultimate burden is to persuade the trier of fact that
he would not have been discharged "but for" the protected
activity.
After a careful review of all of the evidence in this case,
I find that complainant Houser has not established that he would
i1ave been rehired "but for" his protected activities. The basis
for this concl~sion is that the most credible evidence clearly
establishes by testimony of witnesses that is corroborated by
employer's written statements that Hauser's job performance was
unsatisfactory.
I find that two documents entered as exhibits in this case
reflect the opinions of Heuser's supervisors that he was less
than a satisfactory employee. The termination report did state a
recommendation to rehire but in the "comments" section, Steffans
indicated Houser "could manage time more productively." Also as
to initiative, it was written that he "could show improvement."
The evidence shows that these forms were hurriedly prepared by
Steffans just prior to the lay off. Steffans testified that of
the 4 employees laid off at the mine, he would rate Houser third
following Meisinger and Allen. Householder, the last employee
hired on a temporary basis, was rated fourth.
In that
Householder was rehired whereas Houser wasn't raises the issue of
disparate treatment. However, I am persuaded that there is no
merit to such an argument.
The facts show that no new employee
was hired to replace Houser but rather that Householder remained
on the payroll even though he previously had been considered a
temporary employee. The fact remains that the employer decided
to resume its operation with one less employee. Also, the union
contract between Northwestern and the International Union of
Operating Engineers, Local No. 800, contained no provision providing seniority CExh. C-6).
Further evidence in support of Northwestern's defense is
Exhibit C-3 which was the reply by Neill to an inquiry by the
Union as to the reason for Northwestern's failure to rehire
Houser after the lay off. This contained an attached sheet
prepared by Steffans outlining the reasons as of August 23, 1982
that Hauser's supervisors gave for the action they took.
I find
that the reasons given are significant for they were given
shortly after the event occurred and not statements or testimony
given several years later after the start of a discrimination
action (Exh. C-3, p.2).
In conjunction with the foregoing, various witnesses
testified to occurrences that support Northwestern's position.
Sprague testified that he found Houser absent from the load-out
area at Kirby at times when he expected to find him there. Also,

1810

he had checked on Heuser's attendance at the site as a result of
complaints received from some of the truck drivers hauling from
the mine to Kirby CTr. at 221-222). Sprague stated he had to
wait as long as 45 minutes to an hour on several occasions for
Houser to show up (Tr. at 222). Also, that Houser did not keep
the Kirby site in proper condition or maintain the equipment as
requested (Tr. at 226-227). On one occasion in January, 1982,
Houser informed Sprague that the substitute loader furnished as a
temporary replacement for the larger Caterpillar was not large
enough to do the job. Sprague sent Houser home and loaded the
train himself with the smaller type loader. The next day,
Sprague discussed this with Steffans and recommended Houser be
discharged but Steffans wanted to give him an additional opportunity (Tr. at 239-232).
Sprague also testified that the cars on the coal train were
not always loaded to the proper weight by Houser which required
sending a truck and 2 men to Greybull, Wyoming, a distance of 80
miles from the mine, to shovel the excess coal off the cars (Tr.
at 232). Also, that Meisinger, after a short period at the Kirby
load-out area, seldom had an overloaded car (Tr. at 234).
Carl Bechtold, a driver of one of the independent coal
haulers, testified that frequently he would arrive at the Kirby
site and find that trucks had unloaded before his arrival and
coal had not been moved or stockpiled requiring him to wait.
Also, that on other occasions, Houser would not be there. He
stated this would occur approximately twice a week during the
hours Houser was supposed to be working (Tr; at 336, 337). _
Thomas c. Anderson, the owner of the trucks hauling the coal
to Kirby, testified that he had received a number of complaints
about Houser not being at the site and the drivers having to sit
and wait for him. Also, that after Houser was reassigned to the
mine, the problem ceased. He did admit that a new and better
site was acquired (Tr. 318, 319, 330). These complaints were
related by Anderson to Sprague. Anderson further stated that
·complainant would stop loading his trucks at the mine before the
regular time to stop for the lunch period requiring the drivers
to wait. That Steffans was with Anderson on one occasion when
this occurred and told Houser to go back and load the waiting
truck (Tr. at 323). Also, that complainant damaged sideboards on
his trucks while loading them (Tr. at 325).
Sprague testified that there were two reasons for reassigning Houser from the Kirby site to the mine. He felt Houser would
be more productive if he were not working alone, and to assist
Meisinger to recover from injuries received in an automobile
accident (Tr. at 236).
Sprague testified that the equipment Houser operated was not
maintained properly. One example involved repair of the bucket
on the loader in May, 1982. A contract mechanic was called out

1811

to replace the pins on a bucket and felt they had not been
properly lubricated CTr. at 244). Also, Sprague felt that
replacement of glass on the cab of the Terex loader was due to
Rouser's failure to latch the door properly (Tr. at 245-247).
Several of Heuser's fellow employees testified that they
thought he was a good employee and careful with his equipment.
This included Allen, Henning, and Heeter. Allen and Henning are
both presently employed by respondent and had been subpoenaed t~
testify against their present employer and supervisor. I do
t
discredit their testimony but must find that their statements
were too general in terms as to what their opinions of Houser
were. In contrast, I find the testimony of Sprague, Steffans,
Anderson, and Bechtold more credible as it was specific as to
times and occurrences in which they described instances of
Heuser's unsatisfactory job performance.
Houser argues that Northwestern retaliated against him by
not recalling him as a result of management's belief that he was
responsible for the MSHA inspections and its subsequent problems.
This is supposedly apparent from statements made by management at
company meetings and Steffans calling the employees "cowards"
(Pet's brief at 11). This argument is not supported by the
evidence. The meeting in which employees were called "cowards"
occurred after the employees were recalled and did not include
Houser's presence. Also, it was directed at all of the
employees and arose over an electrical inspection which is too
remote from the situation t~at existed in May, 1982.
From the conflicting evidence in this case, I have
difficulty in relating the testimony of Heeter to the proven
facts when Heeter stated that Sprague told him that he thought
Houser was "turning all that s~ff into MSHA, and he didn't want
him back". I do have a problem with determining what "all that
stuff" was as the record does n t show a large number of inspections prior to the lay off.\ In fact, the dust inspection
occurred during a regular inspection in May, 1982 and as of July,
1982, only one citation had been received (Tr. at 280, 281).
Although the complaints of Houser about dust and equipment safety
are protected activity and apparently irritated Sprague, the
evidence does not support a conclusion that this was sufficient
cause to not rehire him. Everyorie was complaining of dust at the
pit. No facts are presented to show Houser made a report to MSHA
of any safety factors and the inspection in May, 1982 was not
unusual or special to indicate a complaint from any employee at
the mine.
As I have determined that this is a mixed motive case, the
specific issue is whether respondent would have rehired the
complainant "but for" the protected activity. The Secretary
contends in his brief that the credibility of Sprague's-testimony

1812

should be resolved against him and given little, if any, weight?
(Pet's brief at 13). I do not agree.
I find that much of
Sprague's testimony is supported by specific times, dates, and
other witnesses testimony. The fact that Houser was not always
present during working hours at the Kirby site is supported by
testimony from Steffans, Anderson, and Bechtold. Sprague was
able to testify as to specific instances regarding lack of
equipment maintenance and repairs that became necessary as a
result of Heuser's lack of maintenance. All the employees that
testified as to their doubting Sprague's credibility did so in
very general terms except for the instance involving the dust
sampling following the May, 1982 inspection. This involves the
possible falsification of dust samples. However, this was denied
by Sprague and factually not proven.
In contrast, a local banker
and the Wyoming Deputy State Mine Inspector, who were both
acquainted with Sprague testified that his reputation for truth
and honesty is beyond reproach (Tr. at 203-205, 349).
I find that this case does not rest upon a general
credibility question but rather on the facts that were supported
by adequate indicia of probativeness and trustworthiness. The
Neill memorandum of August 25, 1982, is a document that is
closely related in time to the decision not to recall Houser and
recites specific reasons. This is more credible than the
testimony of witnesses given at a hearing approximately two years
after the occurrence and stating in general terms that
complainant "was a good worker" and "took good care of his
equipment." Heeter admitted that he did not have first hand
knowledge of Heuser's activities at Kirby but opined that he "was
doing a good job" (Tr. at 156). Henning also was not able to
observe Houser at the Kirby site as he was employed at the mine
<Tr. at 178) .
.Heeter left respondent's employment in July, 1983, after a
disagreement over damage to his personal vehicle among other
reasons (Tr. at 162, 163). Based upon this admission, Heeter's
testimony must be weighed in light of his feelings about the
company.
The termination report for Houser prepared by Steff ans on
June 11, 1982, further corroborates the testimony of Steffans and
Sprague that they were not completely satisfied with Heuser's job
performance (Exh. C-2). Although a part of this document states
that Houser was recommended for rehire and quality of work was
"good", other items referred to a need for improvement. The
evidence shows that this document was hurriedly prepared and
signed by Sprague without time to reflect on its contents. However, it is material to the case for its relationship to the time
of the alleged discrimination act and supports Northwestern's
position as to motive for failure to rehire.

1813

In conclusion, I find that Northwestern's proffered
explanation for not rehiring Houser is more credible than
Hauser's argument that it was based upon his protected activity
alone. Therefore, complainant's case must be dismissed.
CONCLUSIONS OF LAW
1. Northwestern at all times pertinent to this case was the
operator of a mine and subject to the provisions of the Federal
Mine Safety and Health Act of 1977.
2. I have jurisdiction over the parties and subject matter
of the proceeding.
3. Northwestern proved by a preponderance of the evidence
that Houser was not rehired for reasons of unsatisfactory job
performance.
4. Houser failed to prove that discriminatory reasons alone
motivated Northwestern to not rehire him and that the reasons
given by Northwestern were unworthy of credence.

DECISION
Based upon the above findings of fact and conclusions of
law, IT IS ORDERED that this proceeding is DISMISSED~ .

~f.~
4ir"g l?-(1.i'v
i
ai 1
Admin#tative Law Judge

Distribution:
James H. Barkley, Esq., and Robert J. Lesnick, Esq., Office of
the Solicitor, U.S. Department of Labor, 1585 Federal Building,
1961 Stout Street, Denver, Colorado 80294 (Certified Mail)
Edward Bartlett, Esq., Northwestern Resources Company, 40 East
Broadway, Butte, Montana 59701 (Certified Mail)
/blc

1814

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

July 30, 1984
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Petitioner

CIVIL PENALTY PROCEEDINGS
Docket No. SE 84-11
A.C. No. 01-00758-03561

v.

JIM WALTERS RESOURCES, INC.,
Respondent

Docket No. SE 84-15
A.C. No. 01-00758-03559
Docket No. SE 84-16
A.C. No. 01-00758-03560
Docket No. SE 84-23
A.C. No. 01-00758-03569
No. 3 Mine

DECISION
Appearances:

Terry Price, Esq., Office of the Solicitor,
U.S. Department of Labor, Bir~ingham, Alabama, for Petitioner:
R. Stanley Morrow, Esq., and H. Thomas Wells,
Esq., Birmingham, Alabama, for Jim Walters
Resources, Inc., Respondent.

Before:

Judge Merlin

These cases are petitions for the assessment of civil
penalties filed under section llO(a) of the Act by the Secretary of Labor against Jim Walters Resources, Inc. for
alleged violations of the mandatory safety standards.
Stipulations
At the hearing, the parties agreed to the following
stipulations which were accepted (Tr. 5-6):
1.

Jim Walters Resources, Inc., is the owner
and operator of the subject mine.

2.

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

1815

3.

The presiding administrative law judge has
jurisdiction over these proceedings.

4.

The inspectors who issued the subject citations were duly authorized representatives
of the Secretary.

5.

The'subject citations were properly served
on the operator:

6.

Copies of thecitatidris may be admitted
into evidence for the purpose of establishing their issuance but not for the
·truthfulness: or relevancy of the statements asserted therein.

7.

Imposition of penalties will not affect the
operator's ability to continue in business.

8.

The alleged violations were abated in a
timely fashion.

9.

The operator's prior history is average.

10.

The operator's size is large.

11.

The inspector and the operator's witnesses
are accepted as experts in mine health and
safety.

By agreement of both parties, all the docket numbers
were consolidated for hearing and decision (Tr. 5).
SE 84-11

Citation No. 2192159
During the· course of the inspector's testimony, it
became apparent that the inspector was not familiar with the
portion of the safeguard notice upon which his citation was
based (Tr. 21-25). The Solicitor moved to vacate the citation and withdraw the penalty petition with respect to it.
The motion was granted from the bench (Tr. 25).
The citation is Vacated and no penalty is assessed.

1816

SE 84-23
Citation No. 2310279
The subject citation dated September 27, 1983, describes the condition or practice as follows:
From the North and West V are the way
[sic] to the end of the tail track on Section 007-0 there were [sic] material in the
form of rails - metal bands - timbers - crib
blocks in the required clearance along the
track. Safeguard No. 1 T.J.I. was issued
on 7-27-76.
The citation was originally issued under 30 C.F.R.
75.1403-S(b). By modification dated May 18, 1984, the
citation was changed to cite 30 C.F.R. § 75.1403-S(d), which
provides as follows:
§

(d) The clearance space on all track
haulage roads should be kept free of
loose rock, supplies, and other loose
materials.
The citation was based upon Safeguard Notice 1 TJI
dated July 27, 1976, which stated in pertinent part as
follows:
The clearance space on all track haulage roads should be kept free of loose rock,
supplies and other loose materials.
The inspector testified that debris was present on the
track haulage road for l 1/2 miles in the described are~
(Tr. 27-28). He said the concentration of debris was sporadic along the length of the track but became more cluttered inby toward the section (Tr. 28). The mantrip was
running on the debris (Tr. 39). The operator's witness who
accompanied the inspector disagreed that the mantrip ran
over the materials or that the condition worsened {Tr. 4142) but he admitted that 5,000 feet of the track were bad
(Tr. 43-45). I find the inspector's testimony more persuasive and accept it. The citation properly cited the
condition as a violation under 30 C.F.R. § 1403-B(d).
Moreover, the citation fits squarely within the terms of the
safeguard notice quoted above.
I accept the inspector's testimony' that a mantrip could
hit some of the debris (Tr. 38-39). I find the testimony of
the inspector that the mant~ip was riding over the rails

1817

more persuasive than the operator's contrary evidence (Tr.
39, 41). The violation was serious. Moreover, I conclude
the operator was negligent. The violation was significant
and substantial because it exposed miners to the reasonable
likelihood of a serious injury whenever they rode the mantrip.
I have carefully reviewed the operator's arguments regarding the underlying notice to provide safeguards and find
them to be without merit.
I recognize that safeguards must
be narrowly construed. However, the language of § 75.14038(d) is plainly mandatory and the language used is easily
susceptible of objective interpretation and uniform application. The subject citation as amended was properly
based upon the safeguard notice. The operator had notice
and knew exactly what it was charged with. Finally, the
operator's argum~nts regarding the safeguard notice are
raised for the first time in the post-hearing brief which is
too late.
If I had found any merit in the operator's assertions, the Solicitor would have been entitled to an opportunity to respond.
The Solicitor's recommendation of a $20 penalty is unacceptable. As already set forth, the inspector's testimony
makes clear this was a serious violation and that the operator was remiss in allowing it to exist. Thus, the representations in the Solicitor's brief that negligence was low
and that only one person would be affected is contrary to
the evidence the Solicitor himself introduced at the hearing. Penalty proceedings before the Commission are de novo
and penalties must be assessed in accordance with the-srx-statutory criteria set forth in section llO(i} of the Act.
The original assessment made by MSHA is not binding upon
this Commission. This is particularly true when the original assessment is one of the so-called "single penalty
assessments" of $20 made before the hearing in a case where
a hearing is actually held.
A penalty of $100 is assessed.
Citation No. 2192262
The subject citation dated September 8, 1983, describes
the condition or practice as follows:
A clear·travelway of at least 24 inches
on each side of the North Mains
A and B
belt was not maintained in that large rocks,
rolls of belt, and belt structures were obstructing the walkways'.
Saf~guard No. 0658641
was issued by T.J. Ingram on 09-08-81.

No.

1818

Safeguard No. 0758641 dated September 8, 1981, states
as follows:
24 inches of travel space was not provided
between the No. 3 longwall belt and the right
rib along the pillar inby No. 7 leader.
24 inches of travel shall be provided on
both sides of the belt.
30 C.F.R. § 75.1403-5(g) provides:
(g)
A clear travelway at least 24 inches
wide should be provided on both sides of
all belt conveyors ihstal-led after
March 30, 1970. Where roof supports are
installed within 24 inches of a belt conveyor, a clear travelway at least 24 inches
wide should be provided on the side of such
support farthest from the conyeyor.
The inspector testified that the belt in question was
used only to transport coal and I so find (Tr. 48, 51). The
Solicitor takes the position that 30 C.F.R. § 75.1403-5(g)
covers coal-carrying conve~or belts and the operator argµes
that it does not (Solicitor's Brief p. 4, Operator's ~tief
pp. 11-13). After extensive consideration Judge Koutras
decided this standard does not apply to coal-carrying~elt
conveyors. Monterey Coal Company, 6 FMSHRC 4~4, 4!51-458
(February 1984) .
I believe Judge Koutras was correct.
Section 75.1403 establishes the authority to issue safeguards "with respect to the transportation of men and materials". Section 75.1403 is contained.in Subpart o,·~hich
is entitled "Hoisting and Mantrips", terms relating to· the
movement of men and material. Accordingly, I do no.t believe
coal-carrying belts are covered by the cited section. If
.
the Secretary believed coal-carrying conveyor belts properly
could be ~overed under Subpart o, it would have been a
simple matter for him to s~ecif ically include them. This
was not done.
I note that coal-carrying belts are spe~i
fically mentioned in 30 C.F.R. § 75.303 ordering pre-sh~fts.
Congress was explicit in making certain requirements applicable to these belts in other instances. Here, all iridic~~
tions are that Congress did not intend to have th~ saf~g~ard
provisions apply to coal-carrying belts.
··
In .light of the foregoing, Citation No. 2192262 is
Vacated and no penalty is assessed.
'

1819

SE 84-15
Citation No. 2310262
The subject citation dated September 20, 1983, describes the condition or practice as follows:
The approved plan for storage of the
S.C.S.R. rescuers was not being complied
with in that 3 rescuers were found at the
North tool room and no personnel wa~ at the
location. 1 self rescuer was found hanging
alongside of the track haulage in the North
West Mains and no personnel was present in
the :vicinity.
30 C.F.R. § 75.1714-2 provides as follows:
(a)
Self-rescue devices shall be used
and located as prescribed in paragraphs
(b) through (f) of this section.
(b)
Except as provided in paragraph
(c), .(d), (e), or (f) of this section,
self-rescue devices shall be worn or
carried at all times by each person
when underground.
(c) Where the wearing or carrying of
the self-rescue device is hazardous to
the person, it shall be placed in a
readily accessible location no greater
than 25 feet from such person.
(d) Where a person works on or around
equipment, the self-rescue device may
be placed in a readily accessible location on such equipment.
(e) A mine operator may apply to the
District Manager under 30 CFR § 75.110123 for permission to place the self-contained self-rescue device more than 25
feet away·.
(1)
The District Manager shall consider the 'following factors ~n deciding whether to permit an operator to
place a self-contained self-rescue device more than 25.feet from a miner:

1820

(i)
Distance from affected sections
to surface,
(ii)

Pitch of seam in affected sections,

(iii)
Height of coal seam in affected
sections,
(iv)

Location of escapeways,

(v)
Proposed location of self-contained
self-rescuers,
(vi)
Type of work performed by affected
miners,
(vii)
Degree of risk to which affected
miners are exposed,
(viii) Potential for breaking into oxygen
deficient atmospheres,
(ix)
Type of risk to which affected
miners are exposed,
(x)

Accident history of mine, and

(xi)
Other matters bearing upon the
safety of miners.
(2)
Such application shall not be approved by the District Manager unless
it provides that all miners whose selfcontained self-res.cuer is more than 25
feet away shall have, in accordance
with paragraphs (b), (c), and (d) of
this section, at all times while underground, a self-rescue device approved
under Subpart I of Part 11 of this
chapter or Bureau of Mines Schedule
14F, Gas Masks, April 23, 1955, as
amended (Part 13, 30 CFR, 1972 ed.)
sufficient to enable each miner to get
to a self-contained self-rescu·er.

(3) An operator may not obtain permission under paragraph (e) of this
section to place self-contained selfrescuers more than 25 feet away from
miners on mantrips into and out of
the mine.

1821

(f)
If a self-contained self-rescue
device is not carried out of the mine
at the end of a miner's shift, the
place of storage must be approved by
the District Manager, a sign with the
word "SELF-RESCUER" or "SELF-RESCUERS"
shall be conspicuously posted at each
storage place, and direction signs
shall be posted leading to each storage place.
(g) Where devices of not less than 10
minutes and 1 hour are made available
in accordance with § 75.1714-l(a) (3) (ii)
or § 75.1714-l(b) (2), such devices shall
be used and located as follows:
(1)
Except as provided in paragraphs
(c) and (d) of this section, the device
of not less than 10 minutes shall be
worn or carried at all times by each
person when underground, and
(2)
The 1-hour canister shall be available at all times to all persons when
underground in accordance with a plan
submitted by the operator of the mine
and approved by the District Manager.
When the 1-hour canister is placed in
a cache or caches, a sign with the word
"SELF-RESCUERS" shall be conspicuously
posted at each cache, and direction
signs shall be posted leading to each
cache.
Sec. 101, Pub. L. 91-173 as amended
by Pub. L. 95-i64, 83 Stat. 745 as amended
by 91 Stat . 12 91 ( 3 0 U • S • C . 811) ) •
[43 FR 54246, Nov. 21, 1978]
The permission which the operator received from MSHA
regarding the placement of self-contained self-rescuers
provides at paragraph 10 (MSHA Exhibit 3E, p. 2):
All miners outby working sections shall
be within ten .(10) minutes travel time of a
self-contained self-rescuer when travelled
at a normal pace for that general'area of the
mine. The self-contained self-rescuer may

1822

be placed with their lunch containers, or in
a designated area during the shift. At the
end of the shift, the SCSR's for these miners
will be left near the bottom of the elevator
and will be stored in a designated area which
will be identified with a conspicuous "SelfRescuer" sign.
The inspector's testimony demonstrates that MSHA has
failed to make its case with respect to the three selfcontained self-rescuers. in the tool room. As set forth in
the plan, the operator is required to have the self-rescuers
within 10 minutes' walking distance of miners who are outby
the working sections. The inspector .testified that he
looked up and down the track haulage which is the primary
entrance and exit and did not see anyone {Tr. 69-70). He
assumed that because he saw no one in the track entry, the
individuals who left the three self-rescuers were electricians who went somewhere else more than 10 minutes away {Tr.
81-82). This is not necessarily so.
The inspector did not
look anywhere but the track entry (Tr. 82).
In particular,
he did not look in the belt entry where he admitted there
could have been belt cleaners working within 10 minutes'
walking distance {Tr. 82-85). Accordingly, no violation can
be found with respect to the three self-rescuers.
The situation with respect to the fourth self-rescuer
is different. The night before the inspector issued the
citation, he saw it hanging up alongside the track haulage
in the same place it was when he issued the citation {Tr.
71-73). The inspector so informed the operator's safety
inspector who accompanied him {Tr. 94). Based upon the
evidence, the inference is warranted that the self-rescuer
had not been moved and was in the same place the entire
time. This violated that section of paragraph 10 quoted
above, which requires that self-rescuers for miners working
outby working sections must be left near the bottom of the
elevator at the end of the shift.
The inspector testified that in his experience, extra
self-rescuers were not taken on the section {Tr. 114-116).
There is one self-rescuer per miner on the section (Tr.
117). He has been at this mine frequently and has seen this
practice (Tr. 117}. Therefore, because one self-~escuer was
left behind, someone must have travelled from the section to
the bottom near the elevator without one.
I accept the inspector's uncontradicted testimony that this is a gassy mine
(Tr. 105, 107). Based upoh the foregoing, I conclude the
violation was serious and that the operator was negligent.

1823

I further conclude that this violation was siqnif icant and
substantial because traveling to the bottom near the elevator without a self-rescuer in this gassy mine would expose a
miner to the reasonab~e likelihood of reasonably serious
harm.
A penalty of $125 is assessed.
SE 84-16
Citation No. 2310209
The citation dated October 4, 1983, describes the
condition or practice as follows:
The approved plan for storage of the S.C.S.R.
Rescuers was not being complied with in that 4 rescuers were found in a crosscut approximately 120
feet inby the central storage area and 2 rescuers
were found on the No. 2 section that were left after
the shift change and no personnel was present in
vicinity.
The mandatory standard cited is 30 C.F.R. § 75.17142(a), quoted above. That part of paragraph 10 of the plan
quoted above, which provides that at the end of the shift
self-rescuers will be left near the bottom of the elevator,
was relied upon by the inspector (Tr. 109).
The inspector testified that he found four self-rescuers lying in a cross-cut and two more hanging up on the
section (Tr. 102). On the shift he issued the citation, the
section was idle and no one was working or even present on
the section (Tr. 105). The prior shift had been· a maintenance rather than a coal producing shift (Tr. 113). The
inspector believed the self rescuers had been left from some
previous shift but he had no idea how long the six had been
where he found them (Tr. 103, 107-108). Given that there
was no one on the section, the hazard was not that selfrescuers were located more than 10 minutes away from the
miners (Tr. 103). Indeed, the inspector stated that because
the self-rescuers were centrally located, they could have
been reached within 10 minutes (Tr. 108). According to the
inspector, the violation was that the self-rescuers were not
left near the bottom of the elevator as required by paragraph 10 of the plan.
I accept the inspector's uncontradicted testimony that
the number of miners on the section and the number of selfrescuers were the same. The inference is that men must have

1824

traveled from the section to the elevator bottom without
self-rescuers. Accordingly~ a violation exi~ted.
It:was
serious because it exposed the men in this gassy mine to
danger for the 30 to 35 minutes it would take them to reach
the elevator. The operator was especially negligent because
six self-rescuers and six miners were involved. Clearly,
the operator should be more vigilant to make sure the men do
not leave the section without their self-rescuers. The
violation was significant and substantial because in this
gassy mine and on this section where there has been ignition
after ignition, travelling to the elevator bottom without
self-rescuers exposed miners to the reasonable likelihood of
reasonably serious harm.
A penalty of $250 is assessed.
ORDER
In accordance with the foregoing, the operator is
hereby Ordered to pay the following penalties within 30 days
from the date of this decision:
Docket No.
SE 84-11
SE 84-23
SE 84-15
SE 84-16

Citation
2192159
2310279
2192262
2310262
2310209

Violation
30 C.F.R. § 75.1403-8(d)
30 C.F.R. § 75 .1403-8 (d)
30 C.F.R. § 75.1403-5(g)
30 C.F.R. § 75.1714-2(a)
30 C.F.R. § 7 5 • 1 714-2. (a)
TOTAL

Penalty
None
$100
None
$125
$250
$475

Paul Merlin
.
Chief Administrative Law Judge
Distribution:
Terry Price, Esq., Office of the Solic~tor, U.S. Department
of Labor, 1929 Ninth Avenue, South, Birmingham,~AL 35256
(Certified Mail)
R. Stanley Morrow, Esq., and H. Thomas Wells, Esq., Jim
Walters Resources, Inc., P.O. Box C-79, Birmingham, AL 35283
(Certified Mail)
/nw

1825·

FEDE-RAL MINE SAFETY AND HEAL TH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W, COLFAX AVENUE, SUITE 400
DENVER. COLORADO 80204

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

CIVIL PENALTY PROCEEDINGS
Docket No. WEST 83-31-M
A.C~ No. 02-00850-05502 A
Docket No. WEST 83-32-M
A.C. No. 02-00850-05503 A

v.
GLINN ARNO GATES, and
~ETER G. JOHNSTONE,
Respondents

.

Anamax Mining Company Twin
Buttes Mine (Sulfide Mill and
Related Activities)

DECISION
Appearances:

J. Philip Smith, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Petitioneri
William G. Walker, Esq., Stompoly and Even,
Tucson, Arizona,
for Respondents.

Before:

Judge Vail

The above consolidated cases arose upon complaints filed by
the Secretary of Labor, under section llOCc) of the Federal Mine
Safety and Health Act of 1977 Cthe Act), 30 u.s.c. § 820Cc),
against respondents Glinn Arno Gates and Peter G. Johnstone. The
Secretary alleged the respondents, acting as agents of Anamax
Mining Company within the scope of section llOCc) of the Act,
knowingly authorized, .ordered, or carried out Anamax's violation
·of 30 C.F.R. S 55.16-14(b) cited in MSHA Citation No. 599853.
Respondents filed answers denying the charges and the above
matter came on for evidentiary hearing on June 6, 1984, in
Tucson, Arizona. During a recess on the second day of the
hearing, the parties negotiated a settlement which they presented
for approval. Based upon the record of the case up to that time
and the representations of the parties, the proposed settlement
was tentatively approved subject to submission of a joint motion
of settlement and for dismissal of these cases.
The joint motion for settlement was received on July 20,
1984, and represents in material parts the following:
1. The corporate operator paid an uncontested civil penalty
assessment of $8,000 for the violation cited in Citation No.

599853.

.

'

1826

2. During the hearing on June 7, 1984, the respondent's
attorney proposed the following settlement and disposition of the
subject cases:
a. That, without admitting liability, respondent
Glinn Arno Gates under Docket No. WEST 83-31-M agrees
to pay a civil penalty assessment of $800 for the
violation of 30 C.F.R. § 55.16-14(b);.and
b. That the case against respondent Peter G. Johnstone,
Docket No. WEST 83-32-M, be dismissed without a civil
penalty assessment.
c. This stipulation of proposed settlement by the
parties is in keeping with the Commission's decisions
in Secretary of Labor (MSHA) v. Central Ohio Coal
Company, 4 FMSHRC 1000 <1982), and Secretary of Labor
v. Amax Lead Company of Missouri, 4 FMSHRC 975 (1982).
d. Both parties agree to bear their own respective costs
of litigation in these cases.
CONCLUSION
After careful review and consideration of the pleadings,
arguments, trial record, and submissions in support of the joint
motion to approve the proposed settlement of these cases, I
conclude and find that the proposed settlement disposition is
reasonable and in the public interest. Accordingly, pursuant to
29 C.F.R. § 2700.30, the joint motion of the parties is GRANTED
and the settlement is APPROVED.
ORDER
Therefore, IT IS ORDERED
1. That the complaint against respondent Peter G. Johnstone
under Docket No. WEST 83-32-M is dismissed without ~ civil
penalty assessment.
2. Respondent Glinn Arno Gates is ORDERED to pay a civil
penalty in the amount of $800 in satisfaction of the complaint
filed in Docket No. WEST 83-31-M within forty <40) days of the ·
date of this decision and order, and upon receipt of payment by
the petitioner, this proc.eed~s DI~M~~

z;&-~d?~,.
Vi~7t E. Vail
Ad~~~strative Law Judge

182'/

'

Distribution:
J. Philip Smith, Esq., Office of the Solic,itor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, Virginia 22203

<Certified Mail)
William G~ Walker, Esq., Stompoly & Even, United Bank Plaza,
Magdalena Building, Suite 370, 120 West Broadway, Tucson, Arizona
85701 <Certified Mail)
/blc

1828

FEDERAL Ml~IS SAFETY AND HEALTH REVIEW COMMISS•ON
OFFICE OF ADMINISTRATIVE LAW JUDGES
2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

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

v.
CICCONI COAL COMPANY,
Respondent

.
.
.
.
.
.
.

CIVIL PENALTY PROGEEDING
·Docket· No: PENN 83--.159
A/O ·No: 36..:064.72-03S01
Brownsville Mine

DECISION
Before:

Judge Moore

The civil penalty proceeding was initiated by the
Secretary's petition filed July 5, 1983, which alleged two
violations and sought a penalty in the amount of $40. When
respondent did not file a timely answer, Judge Merlin issued
a Show Cause Order in October of 1983. The respondent filed
a hand written answer to that Show cause Order on December 7,
1983.
On February 7, 1984, I issued a Prehearing Order to
which the Solicitor responded. The respondent refused to
claim that order from the Post Office Department. On
June 25, 1984, .I issued a Show Cause Order ordering respondent
to show cause why it should not be held in default for its
failure to respond to the Prehearing Order. Respondent
failed to claim that Order to Show Cause. The two orders
that respondent has failed to claim from the Post Office
Department are attached to the file.
Commission Rule 29 C.F.R. 2700.5(v) states:
"The first document filed, and every document
filed by a lawyer or other representative, shall
include the parties' or other filing persons'
address and business telephone numbers. Written
notice shall be promptly given of any change
of address or business telephone number".
The purpose of the rule is so that a respondent can be
served with process. The rul'e would be totally thwarted if

182.x9·· . '.
-· '·

·'~

a respondent could avoid service by merely refusing to claim
properly addressed mail. I hold that the refusal to claim
mail addressed to an address that a respondent has supplied,
constitutes service.
I therefore hold respondent in DEFAULT and order that
he pay, within 30 days, a civil penalty of $40 to MSHA. I
also affirm both citations.

Charles c. Moore, Jr.,
Administrative Law Judge
Distribution:
Thomas A. Brown, Esq., Office of the Solicitor, U.S. Department
of Labor, 3535 Market Street, Philadelphia, PA 19104 (Certified
Mail)
Mr. C.M. Harasty, Cicconi Coal Company, 500 Middle Street,
Brownsville, PA 15417 (Certified Mail)

/db

'ttU.S. GOVERNMl:N 1 PRINTING OFFICE: 1 9 8 It

It 2 1 5 6 9

1 3 6 O5

1830