MARCH 1986

Commission Decisions
03-04-86
03-26-86
03-26·-86
03-28-86

LAKE 82-93-R
Southern Ohio Coal Company
LAKE 82-105-D
Sec.Labor for Paul Sedgmer, etc. v.
Consolidation Coal Company
Robert Simpson v. Kenta Energy & R.D. Jackson KENT 83-155-D
PENN 84-49
United States Steel Mining Company

Pg. 295
Pg. 303
Pg. 312
Pg. 314

Administrative Law Judge Decisions
03-05-86
03-05-86
03-07-86
03-07-86
03-10-86
03-11-86
03-12-86
03-12-86
03-12-86
03-12-86
03-13-86
03-18-86
03-19-86
03-21-86
03-21-86
03-24-86
03-24-86
03-24-86
03-25-86
03-25-86
03-25-86
03-26-86
03-28-86
03-28-86
02-27-86

Homestake Mining Company
Emerald Mines Corporation
Youghiogheny & Ohio Coal Company
Southern Ohio Coal Company
E. C. Coal Sales Company, Inc.
Boyd Asher v. Fairdale Mining, Inc.
Bryan P. Everson v. Oneida Sand & Gravel
Brian T. Veal v. Kerr-McGee Coal Corp.
Hydrocarbon Resources, Inc.
Western Rock Products Corporation
Martha Perando v. Mettiki Coal Corp.
Sec. Labor for Johnnie L. Jackson v.
Turner Brothers, Inc.
Michigan Silica Company
Sec. Labor for Barry L. Weaver v.
Alpine Construction Company
Joseph Cracco
Richards Coal Co.$ & Mylu Coal Co., Inc.
Reidhead Sand & Rock, Inc.
Disciplinary Proceeding
Whitney Sand & Gravel, Inc.
Capitol Aggregates, Inc.
Walsenburg Sand & Gravel Co., Inc.
Walsenburg Sand & Gravel Co., Inc.
General Rock & Sand
Co-Op Mining Company
Harold J. Atkins v. Cyprus Mines Corp.
(reprinted)

CENT 86-24-RM
PENN 85-298-R
LAKE 85-76-R
WEVA 86-29-R
WEVA 85-170
KENT 85-28-D
LAKE 85-13-DM
LAKE 86-29-D
WEST 84-100-M
WEST 85-23-M
YORK 85-12-D
CENT 86:._36-D

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Pg.

322
324
330
341
343
344
346
350
354
362
364
368

LAKE 85-67-M
CENT 85-99-D

Pg. 398
Pg. 400

CENT 85-123-M
CENT 85-69
WEST 85-156-M
D
86-1
CENT 85-129-M
CENT 85-138-M
WEST 84-19-M
WEST 85-79-M
WEST 84-70-M
WEST 85-165

Pg.
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Pg.
Pg.
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.
Pg.
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WEST 84-68-DM

Pg. 460

402
404
406
410
416
430
436
451
454
458

MARCH 1986

The following case was directed for review during the month of March:
Secretary of Labor, MSHA on behalf of James Corbin, Robert Corbin
and A.C. Taylor v. Sugartree Corporation, Terco, Inc., and Randall
Lawson, Docket No. KENT 84-255-D. (Judge Melick, February 5, 1986)
Review was denied in the following cases during the month of March:
Secretary of Labor, MSHA on behalf of Robert Ribel v. Eastern
Associated Coal Corporation, Docket No. WEVA 84-33-D. (Judge
Koutras, January 21, 1986)
Wilfred Bryant v. Dingess Mine Service, Winchester Coals, Inc.,
Joe Dingess and Johnny Dingess, Docket No. WEVA 85-43-D. (Interlocutory review of Judge Kennedy's order of January 27, 1986)

COMMISSION DECISIONS

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

March 4 ~ 1986

.SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
and
lNITED MINE WORKERS OF
AMERICA (UM.WA)

Docket Nos. LAKE 82-93-R
LAKE 82-94-R
LAKE 82-95-R

v.
SOUTHERN OHIO COAL COMPANY

BEFORE:

Backley, Lastowka and Nelson, Commissioners

DECISION
BY THE COMMISSION:
In this case arising under the Federal Mine Safety and Health Act
of 1977, 30 U.S.C. § 801 et
., the issue is whether miner representatives who participated
post-inspection conferences held on mine
property pursuant to 30 C.F.R. § 100.6(a) are entitled to compensation
under section 103(f) of the Mine Act (30 u.s.c. § 813(f)) for the time
spent in the conferences. A Commission administrative law judge held
that section 103(f) of the Act authorizes payment of compensation to a
miner representative for time
participating in post-inspection
.conferences conducted at a mine immediately or shortly after the
completion of a physical inspection of the Mine. 5 FMSHRC 729, 759
(April 1983)(ALJ). However, finding that the particular conferences in
issue were not the kind of post-inspection conferences compensable under
section 103(f), the judge granted the operator's notices of contest and
vacated three citations charging violations of section 103(f). 5 FMSHRC.
at 759-63. We agree with the judge that in appropriate instances postinspection conferences at mines are compensable under section 103(f) of
the Act. We disagree, however, with his conclusion that the conferences
involved in this case do not qualify for section 103(f) compensation.
Accordingly, we reverse.

The essential facts are not in dispute. Three contested citations
issued to Southern Ohio Coal Company ("SOCCO"), involving similar facts
and the same legal issues, are consolidated in this proceeding. Docket
Nos. LAKE 82-93-R and LAKE 82-94-R, arise out of conferences conducted
on May 24, 1982, at SOCCO's Meigs No. 2 mine by inspectors of the
Department of Labor's Mine Safety and Health Administration ("MSHA").
The purpose of the meetings was to review citations for which civil
penalties had not been proposed previously. Docket No. LAKE 82-95-R,
involves a similar conference held on May 24 and 26, 1982, at SOCCO's
"Raccoon No. 3 mine.
All of the conferences at issue stemmed from MSHA's adoption on May
1, 1982, of revised civil penalty regulations (47 Fed. Reg. 22,286,
22,294-22,297 (1982)), codified at 30 C.F.R. Part 100. Among these
regulations is section 100.6(a), which states:
All parties shall be afforded the opportunity to
review with MSHA each citation and order issued
during an inspection.
In publishing these regulations, MSHA indicated that all outstanding
citations and orders that had not been reviewed for penalty proposal
purposes under MSHA's prior rules by May 21, 1982, would be governed by
the new procedures. 47 Fed. Reg. 22,28fi. The three conferences at
issue were held pursuant to this policy as section 100.6(a) reviews and,
in fact, were among the first conducted under the authority of that
provision.
Twenty citations were reviewed at the two conferences held at
Sacco's Meigs No. 2 mine on May 24, 1982. The citations had been issued
during a regular quarterly inspection at the mine between March 3 and
May 15, 1982. The first conference, held from approximately 9:00 a.m.
to 12:00 noon, covered 14 of the citations. This meeting was conducted
by MSHA inspector Dalton McNece and was attended by Carl Curry, a SOCCO
safety supervisor, and Robert Koons, a miner representative. In
general, the participants discussed the facts surrounding the alleged
violations. The discussion included such topics as the seriousness of
the violations, the operator's negligence, and the good faith of the
efforts to abate the violations. As a result of the conference, the
designation of two of the violations as "significant and substantial"
violations was deleted. See 30 U.S.C. § 814(d)(l).
The second conference, held from approximately 2:00 to 2:30 p.m.,
was conducted by MSHA inspector Myron Beck. Mr. Curry and miners'
representative Frank Goble attended this meeting. The remaining six
citations were discussed. The content of the afternoon conference was
substantially the same as that of the morning meeting. Inspector McNece
testified that the time spent in these conferences was unusually long
because of the parties' unfamiliarity with the new Part 100 procedures.
He estimated that current section 100.6(a) conferences last from five to
45 minutes, depending on the number of citations involved. SOCCO

296

subsequently refused to compensate the miner representatives for the
time spent participating in the conferences and MSRA issued two section
104(a) citations (30 U.S.C. § 814(a)) alleging violations of section
103(f) of the Act. 1/ (At the hearing, counsel for SOCCO and the
Secretary agreed that testimony regarding the third citation would be
the same as that for the other two citations).
The administrative law judge noted that section 103(f) specifically
mandates that miner representatives be given an opportunity to accompany
an inspector during the physical inspection of a mine, to participate in
pre- or post-inspection conferences held at the mine, and to be compensated
for the time spent in accompanying the inspector during the mine inspection.
5 FMSHRC at 751. Because section 103(f) does not specifically mandate
compensation during the time spent participating in pre- or post-inspection
conferences, the judge questioned whether Congress intended that the
miner representative be compensated for time spent in conferences or
meetings held at the mine after the physical inspection of the mine is
completed. After examining the legislative history of section 103(f),

1/

Section 103(£), 30 U.S.C. § 813(f), states:
Subject to regulations issued by the Secretary, a representative of the operator and a representative authorized by
his miners shall be given an opportunity to accompany the
Secretary or his authorized representative during the physical
inspection of any coal or other mine made pursuant to the
provisions of subsection (a) of this section, for the purpose
of aiding such inspection and to participate in pre -or postinspection conferences held at the mine. Where there is no
authorized miner representative, the Secretary or his
authorized representative shall consult with a reasonable
number of miners concerning matters of health and safety in
such mine. Such representative of miners who is also an
employee of the operator shall suffer no loss of pay during
the period of his participation in the inspection made under
this subsection. To the extent that the Secretary or authorized
representative of the Secretary determines that more than one
representative from each party would further aid the inspection,
he can permit each party to have an equal number of such additional
representatives. However, only one such representative of miners
who is an employee of the operator shall be entitled to suffer no
loss of pay during the period of such participation under the
provisions of this subsection. Compliance with this subsection
shall not be a jursidictional prerequisite to the enforcement of
any provisions of this Act.

[Emphasis added]

297

the judge concluded that Congress intended compensation for the miner
representative if he participates in the pre-inspection conferences held
at the mine or in the post-inspection conferences held at the mine
immediately or shortly after the completion of the inspection. 5 FMSHRC
at 7 59.
The judge then held that the·conferences at issue were not 11 postinspection11 conferences, as that tennis used in section 103(f), and
hence were not compensable. Noting that "post-inspection conference" is
not defined in the Mine Act or in the Secretary's regulations, the
judge, looking to the legislative history, described a post-inspection
conference as an interchange between an inspector and members of an
inspection party, occurring immediately after a physical inspection of a
mine, and involving a discussion of the inspector's rationale for issuing
a citation or order, his fixing of an abatement time and other safety
and health matters related to the inspection. S FMSHRC at 757. The
judge concluded that Congress desired the miner representative to be
able to fully participate in and to be compensated for pre- and postinspection conferences so that the representative could make a meaningful
contribution to the safety and health of miners by being afforded an
opportunity to address safety and health concerns resulting from the
inspection, when the facts and circumstances of the inspection are fresh
and when the parties to the conference can explore ways to correct the
conditions and achieve prompt abatement. 5 FMSHRC at 759, 762. The
judge found, however, that the subject conferences had no meaningful
effect on safety and health because they occurred long after the
completion of the inspections and abatement of the violations, and
because the miner representatives who participated in the conferences
were not present during the inspections. Consequently, the judge
concluded that the conference accomplished nothing more than affording
the operator an opportunity to take advantage of the Secretary's Part
100 penalty assessment procedures and were not compensable conferences.
5 FMSHRC at 762-63.
We agree that section 103(f) of the Mine Act requires that a miner
representative be compensated for participation in pre- or post-inspection
conferences. As the judge noted, section 103(f) clearly mandates that a
miner representative be afforded the opportunity to accompany an inspector
during the physical inspection of the mine, and to participate in preor post-inspection conferences held at the mine. Section 103(f) further
provides that the miner representative "shall suffer no loss of pay
during the period of his participation in the inspection made under this
subsection."
While section 103(f) does not expressly mention compensation for pre- or post-inspection conferences, the legislative history
of the Act clearly indicates Congress' intent that section 103(f) requires
such compensation.
The report of the Senate Committee which largely drafted much of
the 1977 Mine Act.states the purpose of the provision for miner participation and compensation contained in section 103(f). In addition to
discussing the rights of the miner representative to accompany an inspector
during an inspection, the report states:

298

[T]he opportunity to participate in pre- or
post-inspection conferences has also been
provided. Presence of a representative of miners
at [an) opening conference helps miners to know
what the concerns and focus of the inspector will
be, and attendance at [a] closing conference will
enable miners to be fully apprised of the results
of the inspection. It is the Committee's view
that such participation will enable miners to
understand the safety and health requirements of
the Act and will enhance miner safety and health
awareness. To encourage such miner participation,
it is the Committee's intention that the miner who
participates in such inspection and conferences be
fully compensated by the operator for time thus spent.
To provide for other than full compensation would be
inconsistent with the purpose of the Act and would
unfairly penalize the miner for assisting the
inspector in performing his duties.
S. Rep. No. 181, 9Sth Cong., 1st Sess. at 28-29 (1977), reprinted in
Senate Subcommittee on Labor, Committee on Hunan Resources, 95th Cong.
2d Sess., Legislative History of the Federal Mine Safety and Health Act
of 1977, at 616-17 (1978) ("Legis. Hist.")(emphasis added). The Conference Report likewise states that--anliner representative is to be
paid by the operator "for his participation in inspections and conferences."
Legis. Hist. at 1323. Further, the matter was discussed on the floor of
the House during the oral report to the House by the conference committee.
During this oral report both Congressman Perkins and Congressman Gaydos
stated that the bill authorized miner representative participation and
compensation for pre- and post-inspection conferences. Legis. Hist. at
1357' 1361.
With the intent of Congress so clear, we agree with the judge that
section 103(f) requires compensation for a miner representative who
participates in "pre- or post-inspection conferences" held at the mine.
We do not agree, however, with the judge's further conclusion that to be
compensable a post-inspection conference must be held immediately or
shortly after the completion of l.he physical inspection of a mine. We
need not in this opinion set forth all of the contours for compensable
post-inspection conferences. While we agree that for greater effectiveness and orderly process, a post-irispection conference should ordinarily
take place within a reasonably immediate time frame after completion of
the physical inspection of a mine, circumstances may exist which lead to
legitimate postponement or delay of the conference.
The judge further found that the conferences at issue were noncompensable "assessment conferences", held pursuant to 30 C.F.R.
§ 100.6(a) and incident to HSHA's civil penalty assessment authority,
rather than compensable conferences held incident to the participatory
rights of the miner representative as set forth in section 103, and
therefore that they were not compensable post-inspection conferences.
5 FMSHRC at 761. We disagree.

299

Our review of section 103(f) and of MSBA's Part 100 regulations
compels us to reject the attempted distinction between MSHA's physical
inspections and attendant post-inspection conferences, and postinspection assessment conferences conducted pursuant to section 100.6(a)
of the Secretary's civil penalty assessment regulations. Section 103(f)
requires compensation for "post-inspection conferences held at the
mine." As the judge noted, neither the statute nor the Secretary's
regulations define a 11post-inspection conference." However, as noted
above, the purpose of the miner representatives' participation rights
under section 103(f) is to "enable miners to understandthe safety and
health requirements of the Act and ••• [to] enhance miner safety and
health awareness." Legis. Hist. at 616. As Representative Gaydos
stated," ••• attendance at the closing conference enables miners to be
apprised more fully of the inspection results."
• Hist. at 1361.
Thus, the pertinent inqui~y is whether the substance
the postinspection conference advanced these goals.
The record establishes that at the post-inspection conferences at
issue the inspectors reviewed each citation, explained the reasons for
its issuance, and discussed the findings made in conjunction with the
citation such as "gravity", "negligence", 11 good faith abatement" (section
llO(i)) and whether the violation was "significant and substantial"
(section 104(d)(l)). The representatives of the operator and of the
miners had the opportunity to present their views on the asserted
violations and the inspectors' findings. The inspectors, in turn, had
the opportunity to modify the findings in response to the discussions.
In fact, as a result of these discussions, the inspectors deleted two of.
the "significant and substantial" findings.
We conclude that the subject matter of these post-inspection
conferences directly related to the enforcement of the Mine Act through
the inspection process, and thus to safety and health issues. We realize
that the discussions had another aspect in that the information exchanged
would be considered by MSHA's Assessment Office in determining the
amount of penalties proposed for the violations pursuant to the criteria
and procedures set forth in 30 C.F.R. §§ 100.3 to 100.5. However, the
inspection and assessment functions of the Mine Act are neither wholly
discrete nor mutually exclusive. The participation of the miner
representative in the post-inspection conferences and the resulting
discussion of the violations could assist inspectors in carrying out
their enforcement responsibilities and increase miner and operator
awareness of the conditions which resulted in the cited violations.
Even when the discussions centered on factors which would impact upon
the penalty proposed for a violation, they served to enhance safety. A
discussion of the "gravity" of a violation or of the "significant and
substantialn nature of a violation involves consideration of the hazards
to miners created by the violation. A discussion of whether the operator
was negligent involves consideration of the standard of care an operator
must exercise in seeking to prevent violations and hazardous conditions.

300

Thus, we conclude that the post-inspection conferences at issue
here were compensable under section 103(£) of the Act.};./
Accordingly, the conclusion of the judge that the conferences at
issue are not compensable under section 103(f) is reversed and the
contests of the citations are denied. 3/

~

Richard V. Backley, Commissioner

L. Clair Nelson, Commissioner

2/
We recognize that the judge particularly was troubled by the delay
between the inspections and the post-inspection conferences. 5 FMSHRC
at 755, 762. The delay here, however, was of a sui generis nature
occasioned by the introduction and implementation of MSHA's new Part 100
procedures.
The judge was further troubled by the fact that the four
to six miner representatives and the five management representatives who
accompanied the inspectors at various times during the inspections were
not present at the conferences. 5 FMSHRC at 755, 762. This fact is not
sufficient to change the compensable character of the conferences. Many
mines are so large that numerous miner representatives accompany an
inspector or inspectors during an inspection, and even when post-inspection
conferences are held close in time to the inspection, these same miner
representatives may be unavailable to participate in the conferences.

1J

Pursuant to section ll3(c) of the Mine Act, 30 U.S.C. § 823(c), we
have designated ourselves as a panel of three members to exercise the
powers of the Commission. ·

301

Distribution
Daniel A. Brown
Alexander, Ebinger, Fisher, McAlister & Lawrence
1 Riverside Plaza, 25th Floor
Columbus, Ohio
43215-2388
Anna L. Wolgast
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Boulevard
22203
Arlington, Virginia
Mary Lu Jordan
United Mine Workers of America
900 Fifteenth Street, N.W.
Washington, D.C. 20005
Administrative Law Judge George A. Koutras
Federal Mine Safety and Health Review Commission
5203 Leesburg Pike, 10th Floor
Falls Church, Virginia
22041

302

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

March 26, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
on behalf of PAUL SEDGMER, JR.,
EDWARD BIEGA, AND DENNIS GORLOCK

v.

Docket No. LAKE 82-105-D

CONSOLIDATION COAL COMPANY

BEFORE:

Backley, Lastowka and Nelson, Commissioners
DECISION

BY THE COMMISSION:
This proceeding involves a discrimination complaint brought by the
Secretary of Labor under section 105(c)(2) of the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 815(c)(2)(1982). The complaint
alleges that Consolidation Coal Company ("Consol") unlawfully suspended
the complainants for refusing to operate heavy mobile eouipment at
speeds which they considered to be unsafe. Consol maintains that the
complainants were disciplined lawfully for operating their equipment too
slowly. Following a hearing on the merits, a Commission administrative
law judge dismissed the Secretary's complaint. 6 FMSHRC 1740 (July
1984)(ALJ). For the reasons stated below, we affirm the judge's decision
in result.
On April 12, 1982, the complainants returned to Consol's Reclamation
Services No. 60 Mine in Ohio to work as pan operators following a threemonth layoff occasioned by a lack of reclamation work. 1/ Several days
later, on April 15, 1982, complainants Sedgmer and Garlock were part of
a pan crew operating their equipment in a loading and dumping cycle.
l/
A pan, also called a scraper, is a 95,000-pound vehi~le used to
scrape earth and haul it to another location.

303

Robert Busby, the crew's foreman, believed that certain crew members
deliberately were working slowly. He asked Mine Superintendent James
Taylor to visit the site. Taylor did so and agreed that certain members
of the crew were engaged in a production slowdown. Taylor asked several
of the pan operators why they were operating their equipment so slowly
and whether they could increase their speed. Sedgmer and Gorlock both
told him that they were going as fast as prevailing conditions would
permit. Following his exchange with Taylor, Gorlock asked an inspector
of the Department of Labor's Mine Safety and Health Administration
("MSHA"), who was at the site, how fast he should operate his pan. The
inspector responded that each equipment operator must judge proper
operating speed based upon the conditions he encounters and the
capabilities of his equipment. Complainant Biega was not at work that
day.
Not satisfied with the equipment operators' pace of production,
Taylor asked Thomas Cyrus, a company reclamation supervisor, to structure
a time-motion study. The time-motion study devised was to involve a
"deadhead" operation, that is, driving empty pans from one reclamation
area to another. Neither the pan operators nor their foreman was to
know that the study was being conducted. The deadhead operation was
scheduled for Friday, April 23, 1982. The regular pan crew was augmented
that morning by bulldozer operators and mechanics. Foreman Busby used a
list prepared by Superintendent Taylor to assign operators to the 13
pans. The first four pans were assigned to bulldozer operators and
mechanics. The next five pans were assigned to regular pan operators.
The last four pans were assigned to the complainants and John Hornyak, a
mechanic.
The time-motion study covered almost the entire route of the equipment relocation. No times were recorded for approximately the first
mile of the run in order to permit the operators to bring their pans up
to operating speed. The total distance considered in the time-motion
study amounted to approximately 9.7 miles. The results of the timernotion study showed that the fastest operator completed the run in 28
minutes, The slowest operator in the first nine pans completed the run
in 40 minutes. Complainant Biega took 55 minutes to finish, while
complainants Garlock and Sedgmer took 74 minutes and 76 minutes,
respectively, to complete the run. !:._/
Upon completion of the deadhead operation, the complainants were
flagged over to the side of the road. Taylor asked each of the miners
two questions: whether there was anything mechanically wrong with his
pan and whether there was anything unsafe about his pan. All three of
the complainants responded in the negative. Taylor then told the complainants to remain in their pans. They did so until the end of their
shift, a period of about six hours. At that time, they were told to
report to Taylor's office at 7:00 a.m. on Monday, April 26, 1982.
2/
The first nine pans completed the run without mishap. Mechanic
Hornyak was taken out of the deadhead by Robert Laine, a maintenance
supervisor, because he saw the brakes on Hornyak's pan smoking. Not
having completed the deadhead, Hornyak's results were not evaluated in
the time-motion study.

304

On April 26, the complainants reported to Taylor's office accompanied by an agent of the United Mine Workers of America ("UMWA"), which
represented Consol's employees at the mine. Taylor spoke with each man
individually and handed each a notice of suspension with intent to
discharge. The letter concluded that each complainant had engaged in a
slowdown and had violated a number of employee conduct rules governing
insubordination and participation in a work stoppage or slowdown. The
complainants, following the grievance procedures contained in the
collective bargaining agreement between Consol and the UMWA, appealed
the disciplinary action taken against them. The arbitrator who heard
the case concluded that the complainants had engaged in a slowdown, but
that their actions did not warrant dismissal. Instead, the complainants
each received a 30-day suspension without pay or benefits.
Following the arbitrator's decision, the Secretary filed a complaint
under the Mine Act on behalf of Sedgmer, Biega, and Gerlock. In his
decision, after a hearing on the complaint, the Commission administrative
law judge found that during the deadhead run the complainants had taken
a "leisurely trip" relying on the belief that only equipment operators
rightfully can determine the speed at which they will operate their
equipment. 6 FMSHRC at 1744. As a matter of law under the relevant
mandatory safety standard, the judge held that the speed at which a pan
may be operated properly and safely is not within the sole discretion of
the pan operator. 6 FMSHRC at 1745. 3/ The judge indicated that the
question of the complainants' good faith belief in a safety hazard was
not a controlling factor in this discrimination proceeding. Id. According
to the judge, the crucial question was whether Consol, in taking disciplinary action against the complainants, held a good faith belief that the
complainants were engaged in a slowdown. Id. The judge found that the
results of the time-motion study justified-Consol's belief in this
regard. Id. Notwithstanding his statements regarding the relevancy of
the complainants' belief in a safety hazard, the judge examined the
testimony regarding the dust and traffic conditions which the complainants alleged created a hazard. He found that the road conditions
encountered by all the operators were approximately the same and not so
severe as to justify abnormally slow speeds. 6 FMSHRC at 1743-46. The
judge decided the case in Consol's favor and dismissed the Secretary's
complaint. 6 FMSHRC at 1746.
On review, the Secretary of Labor challenges the judge's decision
on the grounds that it fails to comply with Commission Procedural Rule

3/

30 C.F.R. § 77.1607(c) provides:
Equipment operating speeds shall be prudent and consistent
with conditions of roadway, grades, clearance, visibility, traffic,
and type of equipment used •

. 305

6S(a) and that it is inconsistent with the Commission's settled discrimination precedent. 4/ The Secretary argues that the judge's decision
provides no clear findings or legal foundation that can be challenged or
subjected to meaningful review. Accordingly, the Secretary suggests
that the Commission either remand the case to the judge for reconsideration and entry of a decision that meets applicable standards, or that
the Commission enter the necessary factual findings based on the record
and analyze them in accordance with governing precedent.
We agree that the judge's decision is not a model of clarity.
Nevertheless, we have examined carefully the judge's findings and the
record as a whole. Based on this review, we are satisfied that the
judge entered the minimum necessary findings. We conclude further that,
with certain clarifications, his determination on the merits is supported
by substantial evidence and is consistent with applicable principles of
discrimination law. Compare Gravely v. Ranger Fuel Corp., 6 FMSRRC 799
(April 1984), aff'd sub nom. Gravely v. Ranger Fuel Corp. and FMSHRC,
No. 84-1511 (4th Cir. May 24, 1985), with The Anaconda Co., 3 FMSHRC 299
·(February 1981).
In order to establish a prima f acie case of discrimination under
section lOS(c) of the Mine Act, a complaining miner bears the burden of
production and proof in establishing that (1) he engaged in protected
activity, and (2) the adverse action complained of was motivated in any
part by that activity. Secretary on behalf of Pasula v. Consolidation
Coal Co., 2 FMSHRC 2786, 2797-2800 (October 1980), rev'd on other grounds
sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal Co., 3
FMSHRC 803, 817-18 (April 1981). The operator may rebut the prima facie
case by showing either that no protected activity occurred or that the
adverse action was not motivated in any part by protected activity. If
an operator cannot rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving that (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 proof with regard to the affirmative defense.
Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38 (November 1982). The
ultimate burden of persuasion does not shift from the complainant.

4/

Rule 6S(a) provides in pertinent part:
Form and content of judge's decision. The judge shall
make a decision that constitutes his final disposition of the
proceedings. The decision shall be in writing and shall
include findings of fact, conclusions of law, and the reasons
or bases for them, on all the material issues of fact, law or
discretion presented by the record, and an order ••••

29 C.F.R. § 2700.6S(a).

306

Robinette, supra, 3 FMSHRC at 818 n. 20. See also Donovan v. Stafford
Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir. 1984); Boich v. FMSHRC, 719
F.2d 194, 195-96 (6th Cir. 1983)(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., 462 U.S. 393, 397-403 (1983).
With respect to the first element of the prima facie case in this
proceeding, the Secretary contends that the complainants were engaged in
a form of protected work refusal. The Commission has held that a miner's
work refusal is protected under section 105(c) of the Mine Act if the
refusal is based on the miner's good faith, reasonable belief in a
hazardous condition. Pasula, supra, 2 FMSHRC at 2789-96; Robinette, 3
FMSHRC at 807-12; Secretary v. Metric Constructors, Inc., 6 FMSHRC 226,
229-31 (February 1984), aff'd sub nom. Brock v. Metric Constructors, Inc.,
766 F.2d 469, 471-72 (11th Cir. 1985). See also Miller v. FMSHRC, 687
F.2d 194, 195-96 (7th Cir. 1982). The case law addressing work refusals
contemplates some form of conduct or communication manifesting an actual
refusal to work. See, e.g., Sammons v. Mine Services Co., 6 FMSHRC
1391, 1397 (June 1984).---'llowever, the facts of the present case do not
reveal an unambiguous refusal to work. Rather, the claim is advanced
that the miners chose to perform work in what they believed to be a safe
manner, although it was contrary to the manner of operation envisioned
by the operator. In Saimons, supra, the Commission indicated that, in
appropriate cases, such activity could enjoy the protection of the Act,
but that the involved miner must still hold a reasonable, good faith
belief in the existence of a hazard, and ordinarily should communicate,
or at least attempt to communicate, to the operator his belief in that
hazard's existence. Sammons, 6 FMSHRC at 1397-98. We also made clear
that "a difference of opinion -- not pertaining to safety considerations
over the proper way to perform [a] task" would lie outside the ambit of
statutory protection. Sammons, 6 FMSHRC at 1398.
Thus, the initial issue is whether the complainants' conduct in
driving the pans at a speed determined by the mine operator to he unacceptably slow, was predicated on a reasonable, good faith belief that
to operate their equipment at a faster speed would have been unsafe.
Central to this inquiry are the perceptions of the complainants that
prevailing road conditions on April 23, 1982, justified, on safety
grounds, their comparatively slow speed of operation. :?_/

SI

The judge stated that the complainants' belief in the existence of

a hazard is not a "controlling factor" and that it is "the motivation of
the employer that is crucial." 6 FMSHRC at 1745. If the judge intended
to suggest that the miners' belief in a hazardous condition was legally
irrelevant, he erred. Pasula, 2 FMSHRC at 2789-96; Robinette, 3 FMSHRC
at 807-12.

307

In essence, as the judge noted (6 FMSHRC at 1744-45), all three
complainants testified to the effect that the pan operator commands an
absolute discretion in determining how fast the equipment should be
operated. They stated that the deadhead route was dusty and that other
haulage traffic was present. All three alleged that these factors
necessitated a slow speed, and also that they maintained slow speeds in
order to reduce the generation of more dust along the route. All three
disclaimed any intent to work slowly in order to preserve work for
themselves.
In evaluating the complainants' testimony, the judge found that
they had not engaged in a deliberate slowdown designed to hamper Consol's
operation and to avoid layoff. 6 FMSHRC at 1744. This language may be
read as suggesting that the complainants acted in good faith. Assuming
that they held a good faith belief, it is still necessary to establish
the separate and conjunctive element that the belief was reasonable.
See Secretary on behalf of Bush v. Union Carbide Corp., 5 FMSHRC at 993,
997 (June 1983). Concerning the miners' reasonable belief -- the issue
on which we conclude that this case turns -- the judge analyzed and
weighed the pertinent evidence and found that the miners' "leisurely
trip" lacked a reasonable basis in safety-related concerns. As discussed
below, we agree with the judge's disposition of this issue and find it
supported by substantial evidence and grounded in credibility resolutions
that the judge was best positioned to make.
The judge noted the existence of conflicting testimony regarding
the road conditions encountered by the pan operators during the deadhead
operation. 6 FMSHRC at 1743-44. Contrary to the testimony of the
complainants, four of the operators in the main group of pans testified
that dust was not a problem for them. Superintendent Taylor and the
other management personnel, who traversed the deadhead route several
times observing the pan operators' progress, testified that dust, traffic,
and road surface conditions were not significantly different for any of
the pan operators. 6 FMSHRC at 1744. The judge found expressly that
the road conditions encountered during the deadhead were no more dusty
for the complainants than they were for the other members of the pan
crew, and that the complainants were not held up by other traffic. 6
FMSHRC at 1744, 1746. In this regard, the judge stated that "there
[was) no evidence of a traumatic change in the road conditions" between
the beginning and the end of the test. 6 FMSHRC at 1744. He concluded,
"I do not find that such extremely dusty conditions existed, and I
cannot find that the time and motion study was unfair." 6 FMSHRC at
1746. In reaching these factual findings, it is apparent that the judge
credited the relevant testimony of the operator's witnesses and discounted the complainants' claims of unsafe road conditions. The judge's
factual findings, which in part turn on credibility, are supported by
substantial evidence and must be upheld. In reaching this conclusion we
also rely on the testimony by the MSHA inspector that the overall safety
consciousness of the operator was very good, that the haulage road was
well-maintained, that management never set a speed as far as he knew,
and that he had never issued a citation to one of Consol's operators for

308

operating at an unsafe speed. Tr. 665-71. All of these facts supp_o.rt.
the judge's holding that the complainants' belief in the existence of a
safety hazard was unreasonable. !:._/
Finally, we note also that while the judge observed that the
complainants had made safety complaints from time to time, he found that
there was no evidence that such complaints had any connection with the
disciplinary action taken against them. 6 FMSHRC at 1745. With the
exception of Sedgmer, whose testimony that he raised safety concerns
prior to the deadhead run was disputed and not credited by the judge,
none of the complainants raised any safety concerns with Consol management before, during, or after the deadhead operation. While such
communications are not only expected, in ordinary course, in work refusal
situations, their absence also lends weight to the conclusion that the
disagreement here as to operating speed did not have a sound basis in
safety concerns. Sammons, 6 FMSHRC at 1397-98.
We conclude that substantial evidence supports the judge's conclusion, whether express or implied, that the complainants failed to
prove that their conduct was premised on a reasonable belief in the
existence of a hazard. Thus, they failed to establish protected
activity and a prima facie case. The Secretary's complaint was properly
dismissed.

6/
We note that while 30 C.F.R. § 77.1607(c) necessarily delegates to
the equipment operator a certain degree of latitude in determining safe
operating speeds, this determination is not within his absolute discretion.
Compliance with section 77.1607(c) must be judged on an objective,
"reasonable person" basis, rather than on the basis of the subjective
perceptions of each and every equipment operator. Cf. Great Western
Electric Co., 5 FMSHRC 840, 841-43 (May 1983). Justas an MSHA
inspector may determine that equipment is being operated at too fast a
speed, a determination can also be made by persons other than the
equipment operator that the equipment is being driven slower than
conditions warrant.

309

Accordingly, on the foregoing bases, we affirm the judge's decision
in result. ]_/

~~

Richard V. Backley, Commissioner

7/
Pursuant to section 113(c) of the Mine Act, 30 u.s.c. § 823(c), we
have been designated as a panel of three members to exercise the powers
of the Commission.

310

Distribution
Robert M. Vukas, Esq.
Consolidation Coal Company
1800 Washington Road
Pittsburgh, PA 15241
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

311

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

March 26, 1986

ROBERT SIMPSON

v.

Docket No. KENT 83-155-D

KENTA ENERGY, INC.
and
ROY DAN JACKSON

·BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners
ORDER

BY THE COMMISSION:
This matter presently is pending on review before the Commission.
On January 31, 1986, the Commission issued an order directing, in part,
that complainant Robert Simpson's Motion to Reopen the proceedings to
pursue successorship issues be held in abeyance pending the Commission's
resolution of the underlying question of liability for violation of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq.
(1982). On February 10, 1986, Simpson filed a Petition for Reconsideration
of that aspect of the Commission's January 31 order. Previously scheduled
oral argument on the merits of this case was heard before the Commission
on February 26, 1986.
We confinp. our January 31 order. We conclude that it is appropriate
to resolve first the issue of liability presented to us on review before
directing any proceedings dealing with successorship issues. Accordingly,
Simpson's Petition for Reconsideration is denied. The merits of this
case as well as Simpson's Motion to Reopen stand submitted. J:./

J:./

Chairman Ford has elected not to participate in the consideration
or disposition of this case.

312

Distribution
Tony Oppegard, Esq"
Appalachian Research & Defense
Fund of Kentucky, Inc.
P.O. Box 360
Hazard, KY 41701
David T. Smorodin, Esq.
Steven D. Cundra, Esq.
Thompson, Hine & Flory
1920 N Street, N.W.
Washington, D.C. 20036
Vicki Shteir-Dunn, Esq.
Office of the Solicitor
U.S. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203

313

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

March 28, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA)
v.

Docket No. PENN 84-49

UNITED STATES STEEL MINING
COMPANY, INC.

BEFORE:

Backley, Doyle, Lastowka and Nelson, Commissioners

DECISION
BY THE COMMISSION:
This civil penalty proceeding arises under the Federal Mine Safety
and Health Act of 1977, 30 U.S.C. § 801 et seq. (1982)(the "Mine Act"),
and involves two alleged violations of a---roof control standard for
underground coal mines, 30 C.F.R. 75.200 (1985). !::./ The administrative
1/

The cited standard provides in pertinent part:
§

75.200

Roof control programs and plans.
[Statutory Provisions]

Each operator shall undertake to carry out on a continuous
basis a program to improve the roof control system of each
coal mine and the means and measures to accomplish such system.
The roof and ribs of all active underground roadways, travelways,
and working places shall be supported or otherwise controlled
adequately to protect persons from falls of the roof or ribs.
A roof control plan and revisions thereof suitable to the roof
conditions and mining system of each coal mine and approved by
the Secretary shall be adopted and set out in printed form •••
The plan shall show the type of support and spacing approved
by the Secretary. Such plan shall be reviewed periodically,
at least every 6 months by the Secretary, taking into consideration any falls of roof or ribs or inadequacy of support of
roof or ribs. No person shall proceed beyond the last permanent
support unless adequate temporary support is provided or
unless such temporary support is not required under the approved
roof control plan and the absence of such support will not
pose a hazard to the miners.

314

law judL-= found that United States Steel Mining Company, Inc. ("U.S.
Steel") committed two violations of the cited standard and assessed
civil penalties of $7,500 and $350. 6 FMSHRC 2693 (November 1984)(ALJ).
We granted U.S. Steel's petition for review of the judge's decision and
heard oral argument.
The issues raised by U.S. Steel are: (1) whether in regard to the
first violation the judge properly found that U.S. Steel was negligent
in connection with a fatal roof fall; and (2) whether the judge properly
found that U.S. Steel violated its roof control plan by failing to
install a temporary jack for roof support. For the following reasons,
we reverse and remand on the negligence issue and affirm on the violation
issue.
The alleged violations occurred at the Maple Creek No. 1 Mine, an
underground coal mine owned and operated by U.S. Steel. Glen Ward and
Nathan. Klingensmith were district underground plan coordinators responsible
for setting spads and sight lines at U.S. Steel's mines. (Spads and
sight lines insure that entries and crosscuts will be driven straight
and at proper angles.) As underground plan coordinators they worked in
different mines and different areas of a mine as needed and assigned.

On the morning of May 23, 1983, Ward and Klingensmith reported to
Earl Walters, the acting mine foreman at the Maple Creek No. 1 mine for
their daily work assignment. Walters testified that he and Ward discussed
the mining that had been done on previous shifts. They examined the
mine maps to determine where spads would be needed that day. Walters
testified that he specifically told Ward to set spads in No. 20 split at
the intersection of the No. 7 room.
'When the two miners arrived at the section of the mine that contained
the intersection of No. 20 split and the No. 7 room the section foreman,
Walter Franczyk, was on the mine telephone conducting business. They
greeted the section foreman, and they proceeded past him. For some
unexplained reason, rather than going to the intersection of the No. 20
split and No, 7 room as directed by Walters, Ward and Klingensmith
proceeded to the intersection of the No. 20 split and No. 6 room.
The No. 6 room was one of two working places on the section. At
the start of the morning shift on May 23, the No. 6 room had already
been mined and bolted up to, but not including, the intersection with
the No. 20 split. Prior to commencing mining on the section and prior
to the arrival on the section of Ward and Klingensmith, Franczyk had met
with his section crew and had visi-ted the intersection. The continuous
mining machine operator and the operator's helper advised Franczyk that
the roof in the intersection of No. 6 room and No. 20 split was
drummy. ]:_/ Franczyk instructed them to cut the drumrny roof down.

l_/

The term "drummy" is defined as, "Loose coal or rock that produces
a hollow, loose, open, weak, or dangerous sound when tapped with any
hard substance to test condition of strata; said especially of a mine
roof •••. " A Dictionary of Mining, Mineral, and Related Terms,
Department of the Interior (1968).

315

The continuous miner operator and his helper were at the intersection when Ward and Klingensmith arrived. The helper warned Klingensmith, 11 1 wouldnrt go in there if I were you." Tr. 31, 47. Nevertheless,
Klingensmith proceeded under the unsupported roof where he remained for
ten minutes installing two spads. He came out from under the unsupported
roof, and Ward then proceeded under the unsupported roof and climbed up
onto the continuous mining machine to put more spads in the roof,
Klingensmith again went under unsupported roof and was preparing to
assist Ward when the roof collapsed on the miners. Ward and Klingensmith
were killed. As a result of the accident, MSHA issued the two roof
control violations now before us on review.
In one of the citations, the Secretary first asserted that U.S.
Steel violated 30 C.F.R. § 75.200 when Ward and Klingensmith proceeded
beyond the last permanent support and under unsupported roof, U.S.
Steel conceded the violation but argued that the violation was not the
result of its negligence. 3/ The judge found otherwise. In doing so,
he relied on the testimony-of MSHA Inspector Swarrow, one of two MSHA
inspectors who investigated the accident, that the section foreman is
responsible for the safety of everyone on his section. The judge stated
that the section foreman has the "authority and responsibility to control
what happens on his section." The judge therefore concluded that foreman
Franczyk was negligent "in not stopping the decedents to find out their
destination and what they were going to do." 6 FMSHRC at 2696. Finding
that the section foremanrs negligence was attributable to the operator,
the judge found U.S. Steel negligent. We do not agree,
The Commission has held that when a violation is committed by a
miner, the mine operatorrs negligence may be gauged by considering the
forseeability of the minerrs conduct, the risks involved, and the operatorrs
supervision, training and disciplining of its employees to prevent
violations of the standard at issue. A.H. Smith Stone Co., 5 FMSHRC 13
(January 1983). All of the witnesses who testified in this proceeding
agreed that the decision of Ward and Klingensmith to proceed beyond the
last permanent roof supports and under unsupported roof was inexplicable
and unforeseeable. Nor was any evidence offered by the Secretary to
establish that U.S. Steel's selection or training of Ward and Klingensmith
was in any way inadequate. To the contrary, the evidence clearly establishes
that Ward and Klingensmith were very experienced underground plan coordinators
who had received all required training concerning the hazards of working
under unsupported roof and who, as far as is known, had never before
performed their jobs under unsupported roof. Thus, there is nothing in
the record from which to conclude that Ward and Klingensmith's own lack
of care is attributable to U.S. Steel under the imputation principles
discussed in A.H. Smith Stone.
3/
Section llO(i) of the Mine Act, 30 U.S.C. § 820(i), requires that
In assessing penalties for violations the Commission must consider,
among other criteria, "whether the operator was negligent".

316

The Commission also has held that consideration of a foreman's
negligence is proper in assessing a penalty against an operator.
Nacco Mining Co., 3 FMSHRC 848, 850 (April 1981). Where a foreman's
negligence is at issue the Commission looks to whether the foreman acted
with the care required by all of the circumstances surrounding the
violation. Southern Ohio Coal Co., 4 FMSHRC 1459, 1461 (August 1982).
In finding negligence, the judge relied on the inspector's statement
that a section foreman is responsible for the safety of everyone on his
section. This ipso facto approach to a section foreman's negligence
cannot be fully reconciled with the Commission's emphasis in Southern
\Ohio that the determinants of a section foreman's duty of care are the
circumstances under which the violation arose.
The pertinent inquiry here is whether, under the circumstances
described, section foreman Franczyk breached a duty of care toward Ward
and Klingensmith. The record estabLishes that Ward and Klingensmith
were employees who were not in Franczyk's chain of command. They were
employees who worked in all of U.S. Steel's mines in the district and
when they worked in the Maple Creek No. 1 mine, they were assigned as
needed to different areas of the mine by the mine foreman. Nevertheless,
Ward and Klingensmith were well known to Franczyk. Thus, when he saw
them on his section he had every reason to assume what they were there
to set spads, as directed by the mine foreman. This was not a situation
in which unknown persons, with unknown responsibilities, were present in
Franczyk's section.
Franczyk was on the telephone conducting mine business when ·ward
and Klingensmith arrived on his section, greeted him and proceeded past
him. To his knowledge, Ward and Klingensmith had never installed spads
under unsupported roof. Further, he had absolutely no basis to think
that they would be installing spads in an area where the continuous
miner operator and his helper were working to take down drummy roof.
The inspector stated that the conditions in the intersection of the No.
20 split and No. 6 room were not in violation of the Mine Act. Drummy
roof in a working place is not uncommon and to remove the danger posed,
30 C.F.R. § 75.200 requires the roof to be supported or adequately
controlled. Franczyk was in the process of complying with this requirement; he ordered the continuous miner operator and his helper to take
down the drummy roof. After the drummy roof was removed, required roof
bolting would have commenced. While there might be conditions on a
section so unusual and hazardous that a section foreman would be under a
duty to warn everyone on the section of the existence of the hazards,
here, given the obvious nature of the conditions and the expertise and
experience of Ward and Klingensmith in working with mine roof, a warning
to the two miners not to enter into an area of unsupported roof, and not
to set spads until the roof had been supported, was not required and
Franczyk's "failure" to give such warning does not constitute a lack of
reasonable care, We conclude, therefore, that under these facts Franczyk
was not negligent. !!./
4/
On review, the Secretary alternately argues that the negligence of
Ward and Klingensmith can be imputed to the mine operator because, as
management employees, Ward and Klingensmith were agents of U.S. Steel
(footnote 4 continued)

317

The second citation charged that U.S. Steel violated its approved
roof control plan in that a temporary jack had not been installed on the
left side of the intersection of No. 6 room and No. 20 split as specified
in Drawing No. 1 of the plan. The judge held that the violation occurred
as alleged.
Section 302(a) of the Mine Act, 30 U.S.C. § 862(a), and the mandatory
safety standard which implements section 302(a), 30 C.F.R. § 75.200,
require the operator to adopt and the Secretary to approve a roof control
plan suitable to the conditions of the mine. Such plans are intended to
be essentially negotiated agreements between the Secretary and the
operator regarding procedures to be followed by the operator in the
interest of miner safety and for the control and support of roof and
ribs. Cf. Zeigler Coal Company v. Kleppe, 536 F.2d 398 (D.C. Cir.
1976); 'Penn Allegh Coal Company., 3 FMSHRC 2767 (December 1981);
Bishop Coal Company, 5 IBMA 231 (1975). In recognition of this
negotiation process the Commission has held that:
[A]fter a plan has been implemented (having gone
through the adoption/approval process) it should
not be presumed lightly that terms in the plan do
not have an agreed upon meaning.
Penn Allegh, 3 FMSHRC at 2770. The basis of the dispute in this case is
a disagreement over the application of provisions of the previously
agreed upon plan. The plan did not include a specific drawing for the
mining and roof support sequence to be followed during the mining of an
intersection, a routine occurrence. The Secretary argued and the judge
found that Drawing No. 1 of the approved roof control plan applied to
the mining of the intersections. Under Drawing No. 1, a second temporary
jack is installed after the third cut of coal has been mined and before
a fourth cut is mined. Because the second temporary jack was not set
and a fourth cut of coal had been mined, the judge found that U.S. Steel
was in violation of its approved roof control plan and of 30 C.F.R. §
75.200. 6 FMSHRC 2696-97. For the reasons that follow, we conclude
that substantial record evidence supports :he judge's findings concerning
the applicability of Drawing No. 1 and the violation thereof.
At the hearing MSlL~ Inspector Moody stated that Drawing No. 1 was
applicable to the intersection. The inspector acknowledged that Drawing
No. 1 depicts an entry with two ribs of coal and that the intersection
Footnote 4 end.
and their actions are directly attributable to their employer. However,
this issue was not raised before the judge. Instead, it was first
advanced on review. Absent a showing of good cause, section
113(d)(2)(A)(iii) of the Mine Act precludes our review of questions of
law and fact not presented to the judge. 30 U.S.C. § 823(d)(2)(A)(iii).
Jones & Laughlin Steel Corp., 5 FMSHRC 1209, 1212 (July 1983). Such
good cause has not been demonstrated. Therefore, this issue is not
properly before us and we decline to reach the question as to whether
employees such as Ward and Klingensmith are "agents" of an operator
within the meaning of section 3(e) of the Mine Act. 30 U.S.C. § 802(e).

318

had only one rib. However, he stated that the row of roof bolts on the
right side of the intersection (Letter "C", Op. Ex. 3) served the same
support function as a rib and thus took the place of the right rib on
Drawing No. 1. Further, the inspector testified that the temporary
jack, when installed, serves a roof support function and reduces the
area of unsupported roof to which miners are exposed when installing the
permanent roof supports required by the plan. A first temporary jack
was installed. The testimony of both MSHA Inspector Swarrow and of U.S.
Steel's chief mine inspector established that a fourth cut of coal was
mined and a second temporary jack was not installed.
U.S. Steel contends that the judge erred in concluding that Drawing
No. 1 applies. It argues that a different provision of its plan, Drawing
No. 23, applies to the mining of intersections. It states that Drawing
No. 23 depicts a situation where it is unnecessary for a miner to proceed
under unsupported roof to advance ventilation or to take gas samples.
According to U.S. Steel, the only purpose of the temporary jacks indicated
in Drawing No. 1 "is to protect people going under the roof to advance
curtain, take tests, or set bolts.n Brief at 8. It asserts that in the
mining of the cited intersection there was no need for a miner to go
under unsupported roof in order to advance line curtains or take gas
samples. Stating that Drawing No. 23 is more analogous to the cited
intersection than Drawing No. 1, it argues that the setting of temporary
jacks was not required and that it did not violate its roof control plan
in this respect. 2_/
Section 113(d)(2)(A)(ii)(I) of the Mine Act mandates that factual
findings of administrative law judges be upheld if supported by substantial evidence of record. 30 U.S.C. § 823(d)(2)(A)(ii)(I). The
judge here found the conclusion that Drawing No. 1 applied to the mining
of intersections to be "inescapable". We might not have reached this
conclusion so readily. The operator's argument that Drawing No. 23 also
can be analogized to the mining of intersections because the required
ventilation and gas testing can be accomplished from under the adjoining,
previously bolted entry cannot be rejected summarily. If all required
ventilation and gas testing can be accomplished from an adjoining entry
without miners entering under unsupported roof, then Drawing No. 23,
viewed in conjunction with Drawing No. 24, conceivably could be read to
support the mining sequence argued for by U.S. Steel. However, we
5/
U.S. Steel also argues that even if Drawing No. l applied the
setting of a second jack was not required until mining sequence No. 3
was completed, and that this had-not yet occurred. This argument is
rejected. MSHA Inspector Swarrow and U.S. Steel's witness Cortis testified
that cut No. 4 had been completed except for a little "cleaning up."
Even if cut No. 4 was not completely finished, a second jack was required
under Drawing No. 1 immediately upon completion of cut No. 3. The
subsequent determination to remove more roof would not have affected the
previously triggered requirement of setting a second jack.

319

cannot say that the trial judge's conclusion that Drawing No. 1 applied
is not supported by substantial evidence. The testimony of the MSHA
inspector that Drawing No. 1 applies to the mining of intersections was
detailed and consistent and provides a substantial basis supporting the
judge's finding. Also supportive of this conclusion is the fact that
one temporary jack had been set by the miners, which would have been
required by Drawing No. 1, but not by Drawing No. 23.
Accordingly, we affirm the judge's conclusion that Drawing No. 1
was applicable and was violated. We note, however, that roof control
plans are reviewed at least every six months. If U.S. Steel continues
to believe that a provision other than Drawing No. 1 should apply when
mining an intersection, it has the opportunity to pursue this when the
plan is next reviewed.
For the foregoing reasons, we reverse the judge's finding that U.S.
Steel was negligent in connection with the two miners working under
unsupported roof, and we remand to the judge for recomputation of an
appropriate penalty. We also affirm the judge's conclusion that U.S.
Steel violated 30 C.F.R. § 75.200 by failing to install a second
temporary jack pursuant to Drawing No. l of U.S. Steel's approved roof
control plan. §_/

Joyce 1 A. Doyle, Commis~oner

ames A. Lastowk~.
, Commissioner

~,,
'/1
~~Co~~f:rv

!i/

Chairman Ford has elected not to participate in the consideration
or disposition of this case.

320

Distribution
Louise Q. Symons, Esq.
Billy M. Tennant, Esq.
United States Steel Corporation
600 Grant St., Room 1580
Pittsburgh, PA 15230
Debra Feuer, Esq.
Office of the Solicitor
U.5. Department of Labor
4015 Wilson Blvd.
Arlington, Virginia 22203
Chief Administrative Law Judge Paul Merlin
Federal Mine Safety and Health
Review Commission
1730 K Street, N.W.
Washington, D.C. 20006

321

ADMINISTRATIVE LAW JUDGE DECISIONS

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

March 5' 19 8 6
CONTEST PROCEEDING

HOMESTAKE MINING COMPANY,
Contestant

Docket No. CENT 86-24-RM
Citation No. 2635045; 11/14/85
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA) ,
Respondent

Homestake Mine

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

CIVIL PENALTY PROCEEDINGS
Docket No. CENT 85-93-M
A.C. No. 39-00055-05545
Docket. No. CENT 85-118-M
A.C. No. 39-00055-05550

HOMESTAKE MINING COMPANY,
Respondent

Homestake Mine

DECISION AND ORDER OF DISMISSAL
Appearances:

Timothy M. Biddle, Esq., Crowell & Moring,
Washington, D.C., and Robert A. Amundson, Esq.,
Amundson, Fuller and Delaney, Lead, South Dakota,
for Contestant/Respondent;
James Ho Barkley, Esq.v Office of the Solicitor;
U.So Department of Labor 7 Denver 1 Coloradoq
~or Respondent/Petitioner.

Before~

Judge Lasher

Docket No. CENT 85-118-M. At the conunencement of the hearing in
·:his expedited and consolidated proceeding 1 the Secretary moved to
-Ilithdraw his Proposal for Penalty Assessment for failure of proof. The
motion was granted pursuant to 29 C.F.R. 2700.11 and the Section 107(a)
Order and ~he Section 104{a) Citation No. 2358414 involved was ordered
vacated on.the recordo
Accordingly 1 this docket is DISMISSED.
Docket No. CENT 85-93-M.
Subsequent to the commencement of the
hearing, and after further investigation, the Secretary moved to dismiss
this proceeding for failure of proof.
The motion, construed to be to
withdraw the Proposal for Penalty Assessment, was granted pursuant to
29 C.F.R. 2700.11, and Citation No. 2097258 was ordered vacated on the
record. Accordingly, this docket is DISMISSED.

322

Docket No. CENT 86-24-RM. Subsequent to the commencement of the
hearing, and after further investigation, the Secretary moved to vacate
the Section 104(d) (1) Citation (No. 2635045) involved for failure of
proof.
The motion was granted on the record, and the subject Citation
was ordered vacated. Accordingly, the docket is DISMISSED.
The vacation of the three citations set forth above are with
prejudice to the Secretary to reinstitute the same in the future.

'.Ul£~~,,~·tr. ~o~~· fh-.
YMichael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Timothy M. Biddle, Esq., Crowell & Moring, 1100 Connecticut Avenue, N.W.,
Washington, D.C. 20036 (Certified Mail}
Robert A. Amundson, Esq., Amundson, Fuller & Delaney, P.O. Box 898,
Lead, South Dakota 57754 (Certified Mail)
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado 80294
(Certified Mail)
United Steelworkers of America, Local 7044e 501 Main Street 1 Lead,
South Dakota 57754 (Certified Ma
)

323

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

March 5, 1986
EMERALD MINES CORPORATION,
Contestant

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

.
..
..

CONTEST PROCEEDING
Docket No. PENN 85-298-R
Citation No. 2401863; 8/8/85
Emerald No. 1 Mine

UNITED MINE WORKERS OF
AMERICA ( UMWA) I
Intervenor
DECISION
Appearances:

Before~

R. Henry Moore, Esq., Rose, Schmidt, Chapman,
Duff & Hasley, Pittsburgh, Pennsylvania, for
Contestant;
Heidi Weintraub, Esq., Office of the Solicitor,
U.S. Department of Labor, Arlington, Virginia,
for Respondent;
Torn Shumaker, United Mine Workers of America,
Masonto~n, Pennsylvania, for Intervenor.

Judge Melick

This case is before me upon the Notice of Contest filed
by Emerald Mines Corporation (Emerald) under section 105Cd)

of the Federal Mine Safety and Health Act of 1977, 30 u.s.c.
§ 801 et. ~, the "Act" to challenge the issuance by the
Secretary of Labor of citation No. 2401863 under the provisions of section 104(d}(l) of the Act.l The Secretary
moved for dismissal of the case on the grounds that there was
no justiciable issue in that Emerald had already paid the
civil penalty corresponding to the citation and that 90 days
!section l04(d)(l) provides in relevant part as follows:
"If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there
has been a violation of any mandatory health or safety standard, and if he also finds that, while the conditions created
by such violation do not cause imminent danger, such violation is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other
mine safety or health hazard, and if he finds such violation
to be caused by an unwarrantable failure of such operator to
comply with such mandatory health or safety standards, he
shall include such finding in any citation given to the
operator under this Act."
324

had elapsed without a~y additional section 104Cd) orders
having been issued. According to the Secretary the case was
therefore moot. The Secretary's motion was taken in part as
a Motion For Summary Decision under Commission Rule 64, 29
C.F.R. § 2700.64, and documents submitted in connection with
the motion were supplemented at limited hearings under that
rule. The Secretary's motion was thereafter granted in part
and denied in part. The corresponding bench decision appears
below with only non-substantive modification:
To the extent that Emerald does concede that
it paid the penalty proposed by the Secretary for
Citation Number 2401863 as a 104(a) citation, I
find that the fact of the violation and the "significant and substantial" findings related to
that citation have been the subject of a final
disposition. Those issues, I find, have indeed
been waived by payment of the penalty. [Old Ben
Coal Co., 7 FMSHRC 205 (1985)].
Now whether the 104 ( d) Cl) "unwarrantable
failure" findings that were later added to the
citation have also been the subject of a final
disposition by the payment of that penalty, is
still an issue that may be further probed in
these limited proceedings. I will provide additional opportunity for the Secretary to present
evidence on that subject, pursuant to Commission
Rule 64(b).
So, to the extent that there does exist a
genuine issue of fact based on the pleadings,
documents, and affidavits submitted to me,
regarding whether the 104(d)(l) citation was
included in that penalty payment, and should
likewise be considered waived, the Secretary's
motion must be denied.
[Commission Rule 64]
Now, the Secretary also asserts in paragraphs 2 and 3 of his motion that the 104(d)(l)
"unwarranta.ble failure" issue is, in any event, a
moot issue. Now, there may be other reasons why
this is not moot, but I find that the "unwarrantable failure" issue is not a moot issue because
the history of violations attributed to Emerald
reflects the existence of the more serious
104(d)(l) citation as opposed to a less serious
104(a) citation. This history could be used in
any future proceedings to increase penalties
imposed against Emerald, both by the Secretary
under his regulations, and by the Commission,
under section llO(i) of the Act.
In other words

325

as long as the 104(d)(l) characterization is
associated with that citation, there indeed is a
viable issue because of potential prejudice to
Emerald in the future assessment of civil
penalties. Now, there may be other reasons why
this issue is not moot, but I don't find it
necessary to consider any other reasons. So,
with respect to the Secretary's paragraphs 2 and
3, in his motion to dismiss, those are also
denied.
Following limited hearings on the Secretary's Motion
under Commission Rule 64Cb) a further bench decision was
rendered. That decision appears as follows:
I am prepared to rule.
I find that the
testimony of Mr. Machesky [Emerald's Safety
Director] is, indeed, fully credible.
It is
undisputed that when Mr. Machesky paid that
section 104(a) citation, [on behalf of Emerald]
he believed he was paying only a penalty for a
104(a) citation.
I certainly accept his testimony that he did not then understand that his
payment of that penalty would have had any impact
on the 104(d)(l) modification to that citation.
Thus, when the penalty was paid on the citation, it was paid as a section 104(a) citation,
and the only issues that were thereby waived were
the fact of the violation cited and the amount of
civil penalty. Those are the only issues that
had become final by the payment of that penalty
and the issue of '0 unwarrantable failuren survived
that payment of penalty. The Secretary's motion
to dismiss is, therefore, denied on that issue.
Emerald 1 s Motion for Partial Summary Judgment under
Commission Rule 64 was also considered at hearing. Emerald
sought dismissal of the 11 unwarrantable failure" findings in
the citation alleging inter alia that "an unwarrantable
failure allegation must be based on an actual inspection of
the mine and observance of the condition as opposed to an
investigation performed after the fact.n
The undisputed evidence on the motion is as follows.
On August 8, 1985u at 8:00 a.m. Joseph Koscho, an inspector
for the Federal Mine Safety and Health Administration (MSHA),
issued Citation No. 2401863 under section 104(a) of the Act
charging a "significant and substantial" violation of the
standard at 30 C.F.R. § 75.308. The citation alleged as
follows:

326

"During a 103Cg)(l) investigation it is determined
that power from the continuous miner serial
number JM2567 was not immediately de-energized
when 2.5% to 2.6% methane was detected, also
changes were made in the ventilation in the
working places before the continuous miner in the
working place was de-energized. The incidence
[sic] took place in number 1 haulage 002 section
in a crosscut being driven from 3 room to 2 room
on 7/29/85."
On August 23, 1985, Inspector Koscho modified the citation changing item 9 "Type of Action 11 from "104(a) 11 to
"104Cd)(l) 11 and noting that 11 the subject citation is hereby
modified to show item 9-type of action to be changed from
104-a to 104-d-l as per instruction of upper MSHA supervision."
The events leading to the issuance of the citation are
as follows. On July 30, 1985, Inspector Koscho had received
a section 103(g)(l) complaint concerning an alleged accumulation of methane at the Emerald No. 1 Mine on July 29, 1985.2
Koscho began his investigation on July 31, 1985, by visiting
the mine and talking to Lampman Don Kelly on the surface. At
this point he was investigating allegations that the handheld methane detectors had not been working properly and were
poorly maintained. Koscho reviewed the records concerning
the methane detectors and found no violations. He then
2section 103Cg><i> provides as follows:
"Whenever a representative of the miners or a miner in
the case of a coal or other mine where there is no such representative has reasonable grounds to believe that a violation of this Act or a mandatory health or safety standard
exists, or an imminent danger exists, such miner or representative shall have a right to obtain an immediate inspection by giving notice to the Secretary or his authorized
representative of such violation or danger. Any such notice
shall be reduced to writing, signed by the representative of
the miners or by the miner, and a copy shall be proyided the
operator or his agent no later than at the time of inspection, except that the operator, or his agent shall be
notified forthwith if the complaint indicates that an
imminent danger exists. The name of the person giving such
notice and the names of individual miners referred to therein
shall not appear in such copy or notification. Upon receipt
of such notification, a special inspection shall be made as
soon as possible to determine if such violation or danger
exists in accordance with the provision of this title. If
the Secretary determines that a violation or danger does not
exist, he shall notify the miner or representative of the
miners in writing of such determination.

327

proceeded into the East Mains section of the mine to interview miners who had been present at the time of the alleged
methane violation reported in the "103(g)" complaint.
The next day, August 1, 1985, Inspector Koscho returned
to the mine and for the first time visited the underground
area in which the cited violation had occurred i.e., in the
crosscut between the No. 2 and No. 3 entry in the 002 section.
According to Koscho, conditions on August 1 differed from
conditions that reportedly had existed on the date of the
violation. In this regard Koscho found "very little methane"
on August 1st and observed that since the violation 2 full
cuts of coal had been removed from the No. 3 entry and 1 cut
from the No. 2 entry. Koscho tested the methane monitor on
the continuous miner which had been used on the date of the
violation and found it to be working. He also obtained
records concerning the retraining of mine employees. This
was a "long drawn out affair" since some records were not
readily obtainable.
Upon obtaining all of the requested documentation Koscho
finally wrote the section 104(a} citation on August 8, 1985.
He did not observe the violation that occurred on July 29, and
acknowledged that conditions were different when he was physically on-site on August 1, 1985. The citation was based upon
the unsworn statements of the miners who purportedly observed
the violation. On August 23, 1985, Koscho modified the section
104(a) citation to a citation under section 104(d)(l) of the
Act based on the same information he used to issue the section
104(a) citation.
Within this framework of evidence it is clear that the
citation at bar was not based on an inspection of the mine
but upon an investigation through subsequent interviews and
the examination of records conducted by the inspector several
days after the incidents giving rise to the violation. A
finding of "unwarrantable failure" under section 104(d}(l)
must however be based upon an "inspection" of the mine. See
Emery Mining Corporation, 7 FMSHRC 1908 (1985) (Judge Lasher)
citing therein the order of Judge Steffey in Westmoreland
Coal Company, WEVA 82-340-R et.al)~ Southwestern Portland
Cement Company, 7 FMSHRC 2283 (1985) (Judge Morris) and NACCO
Mining Company, 8 FMSHRC
(Jan 14, 1986) (Chief Judge
Merlin). Under the circumstances the "unwarrantable failure"
allegation herein cannot be supported and the citation as a
citation under section 104(d}(l} of the Act must fail.
Accordingly the Motion for Partial summary Decision
filed by Emerald is granted and the citation at bar is
modified from a citation under section 104Cd)(l) of the Act
to a citation under section 104(a) of the Act. Inasmuch as
Emerald has already paid the civil penalty proposed by the

328

Secretary of Labor for Citation No. 2401863 as a section
104(a) citation, further proceedings in this matter are
unneccessary.

f

Distribution:
R. Henry Moore, Esq., Rose, Schmidt, Chapman, Duff & Hasley,

900 Oliver Building, Pittsburgh, PA 15222-5369 (Certified
Mail)
Heidi Weintraub, Esq., Office of the Solicitor, Department of
Labor, 4015 Wilson Boulevard, Arlington, VA 22203 (Certified
Mail)
Tom Shumaker, Safety Inspector and Mary Lou Jordon, Esq.,
United Mine Workers of America, 32 Main Street, Masontown, PA
15461 (Certified Mail)
rbg

329

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

March 7, 1986
CONTEST PROCEEDING

YOUGHIOGHENY AND OHIO COAL
COMPANY,
Contestant

Docket No. LAKE 85-76-R
Order No. 2330257; 4/25/85

Vo

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
·
Respondent
CIVIL PENALTY PROCEEDINGS

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

Docket No. LAKE 85-31
A. C. No. 33-00968-03582
Docket No. LAKE 85-93
A. C. No. 33-00968-03609

v.
YOUGHIOGHENY AND OHIO COAL
COMPANY,
Respondent

Nelms No. 2 Mine
DECISION

Appearances:

Robert Kota, Esq., St. Clairsville, Ohio,
for Contestant/Respondent;
Patrick M. Zohn, Esq., Office of the Solicitor,
U. S. Department of Labor, Cleveland, Ohio,
for Respondent/Petitioner.

Before:

Judge Maurer

These consolidated cases are before me pursuant to section 105(a) and 105(d) of the Federal Mine Safety and Health
Act of 1977, 30 u.s.c. § 801 et seq., (the Act). Docket No.
LAKE 85-37 is a civil penalty:J?roceeding filed by the petitioner against the respondent seeking a civil penalty assessment in the amount of $500 for an alleged violation of 30
C.F.R. § 75.403 as noted in section 104 (d} {1) Citation No.
233.1148. The primary issues before me in this case- are
whether Youghiogheny and Ohio Coal Company (Y&O) violated
the regulatory standard at 30 C.F.R. § 75.403 and, if so,
a determination must be made as to the appropriate civil
penalty to be assessed for that violation considering the
criteria under section llO(i) of the Act.
Docket No. LAKE
85-76-R and LAKE 85-93 are before me to contest an order of

330

withdrawal issued to Y&O pursuant to section 104(b) of the
Act (Order No. 2230257) and for review of a civil penalty
proposed by the Mine Safety and Health Administration (MSHA)
for that order and the section l04(a) citation underlying
that order (Citation No. 2330248).
In these cases MSHA
seeks a civil penalty of $305 ~or alleged violation of 30
c.F.R. § 71.100.
In the notice of contest case, the issues
are whether a valid order was issued and whether it should
be sustained, vacated, or modified.
In the civil penalty
case, the issues are whether a violation occurred and, if
so, what civil penalty should be assessed, based on the six
criteria set forth in section llO(i) of the Act.
An evidentiary hearing was held in Wheeling, West
Virginia, on October 24, 1985. The parties filed post
hearing proposed findings and conclusions, and the arguments
presented therein have been considered by me in the course
of this decision.

STIPULATIONS
The parties stipulated to the following (Tr. 10):
1.
The Federal Mine Safety and Health Review
Commission has jurisdiction over this proceeding.
2.
The Y&O Coal Company is a moderate-sized
operator.
3.
The Y&O Coal Company is an operator as
defined by §3(d) of the 1977 Mine Act.

4. The Nelms No. 2 Mine of the Y&O Coal
Company is a mine as defined by §3(h) of the 1977
Mine Act.
5.
The amount of penalty assessed would not
impair the operator's ability to continue in business.
I.

Docket No. LAKE 85-37 (Citation 2331148)

This citation was issued by MSHA Inspector Frank J.
Kolat on September 5, 1984, and alleges as follows:
The floor, roof and ribs in the crosscut between

E to D entry were inadequately rock d11·ted in the
#7 Seam Mains left side (015-0) worl<'
section.
Starting at 15 + 47 crosscut betwec
to D entry
for a distance of 45 feet, also D enwry the floor
starting at 15 + 04 and extending inby for a distance of 66 feet.
These areas were more than 40

331

feet outby the faces.
Three (3) samples were
collected to substantiate this citation. Butch
Dyer was the section foreman that mined coal on
this section on midnight shift.
Ralph Dutton
was the section foreman today on dayshift, and
Bill Wright was the unit manager in charge.
Inspector Kolat testified at the hearing that on September 5, 1984, he, accompanied by Mr. Andy Jacubic from
Y&O's safety staff and Mr. Larry Ward from the union safety
commi.ttee entered the Nelms No. 2 Mine and proceeded to an
area of the mine known as the No. 7 Seam, 3 section left side
No. 015. This was an active working section. They arrived
on the section at approximately 9:15 a.m. Kolat inspected
six entries in this section--A-1, A, B, C, D and E. While
inspecting D entry he found the floor was black for a
distance of 109 feet from the face. Additionally, he found
the floor, roof, and ribs were black for approximately 45
feet in the crosscut between D to E. However, as respondent
points out, the inspector was less than convincing during
his cross-examination as to whether the area needing rockdusting in D entry was 109 feet, 66 feet, or 86 feet, or
somewhere in between. The preponderance of evidence on
this point indicates to me that the peti.tioner has borne
his burden of proof to the extent that 86 feet plus some
unspecified distance beyond in D entry needed rockdusting
to be in compliance with 30 C.F.R. § 75.403 1/ and I so
find.
I note that the respondent does not contest the
fact that there was a violation of 30 C.F.R. § 75.403, but
maintains that only 66 feet needed rockdusting and of that
only 6 feet was required to be immediately rockdusted since
the operator is required to clean and rockdust only within
40 feet of the face and then another cut of coal may be
taken which equals 60 feet.
Likewise, with regard to the
area inadequately rockdusted in the crosscut between E and D
entry, respondent does not dispute the regulatory violation,

!/

30 C.F.R. § 75.403 provides:
Where rock dust is required to be applied, it
shall be distributed upon the top, floor, and sides
of all underground areas of a coal mine and maintained in such quantities that the incombustible
content of the combined coal dust, rock dust, and
other dust shall be not less than 65 per centum,
but the incombustible content in the return aircourse shall be no less than 80 pet centum. Where
methane is present in any ventilating current, the
per centum of incombustible content of such combined dusts shall be increased 1.0 and 0.4 per
centum for each 0.1 per centum of methane where
65 and 80 per centum, respectively, of incombustibles are required.

332

but maintains that only approximately 13 feet needed rockdusting while the inspector testified it was about 45 feet.
The weight of the totality of the evidence on this point
I find to be on the side of the petitioner, and I find that
approximately 45 feet of the crosscut between D and E entry
needed imrr~diate rockdusting to be in compliance with the
cited regulation.
Inspector Kolat took methane readings at the face areas
of the entries and found 0.1% to 0.3% at the faces.
He also
took three dust samples; the first, from the floor of the
crosscut between D and E entries was 15% incombustible;
the second, from the roof and ribs of the crosscut between
D and E entries was 16.2% incombustible; and the third,
from the floor of D entry, was 26% incombustible.
These
results do indeed fall far below the 65% incombustible
content required by 30 C.F.R. § 75.403.
Accordingly, I find that a violation has been proven.
An appropriate civil penalty must also be assessed if a
violation is found and a determination must be made as to
whether that violation was "significant and substantial."
On that morning, respondent had nine men and some mining
equipment operating on this section.
They had a roof bolting
machine operating in C entry at the face and a scoop car
operating in A and B entries. However, the respondent's
unrebutted evidence which I find to be credible is that
this equipment was in permissible condition. Further,
there is no evidence that there was any float dust in the
area.
A decision as to whether a violation has been properly
designated as being significant and substantial must be made
in light of the Commission's rulings in that area.
The term
"significant and substantial" was first defined by the Commission in National Gypsum Co., 3 FMSHRC 822 (1981) at page
825, where the Commission stated:
We hold that a violation is of such a nature as
could significantly and substantially contribute
to the cause and effect of a mine safety and
health hazard if, based upon the particular facts
surrounding that violation, there exists a reasonable likelihood that the hazard contributed to
will result in an injury or an illness of a reasonably serious nature.

333

In Mathies Coal Co., 6 FMSHRC l (1984), the Commission
applied the definition of "significant and substantial" in
four steps. The first step was whether a violation occurred,
and I have already dealt with that by finding that a violation of 30 C.F.R. § 75.403 indeed occurred.
The second
step is whether the violation contributed a measure of danger
to a discrete safety hazard.
In this case, Inspector Kolat
testified that the nine miners working on that section had
been subjected to an additional hazard because of the
potential increased danger of explosion and fire especially
in light of the fact that this is a gassy mine, liberating
over one million cubic feet of methane in a twenty-four
hour period.
I find that there was a discrete safety
hazard and the violation did contribute an additional
measure of danger.
The third step in applying the definition is whether there is a reasonable likelihood that the
hazard contributed to will result in injury, and the
fourth step is whether there is a reasonable likelihood
that the injury in question will be of a reasonably
serious nature. While I have found that there were no
immediate ignition sources proven to exist at the time
the citation herein was issued, I nevertheless find on
the basis of Inspector Kolat's testimony the existence
of a reasonable likelihood of increased danger of explosion or fire resulting in serious injuries or fatalities.
This was an active section, 86+ feet of the floor in D
entry and 45 feet of the floor, roof, and ribs in the
crosscut between D and E entries were black and had an
incombustible content ranging from 15% to 26% when the
standard requires a minimum percentage of 65%. Further,
this is a gassy mine, liberating over one million cubic
of methane in a twenty-four hour period. As the
inspector testified, if you would have a gas pocket at the
face, ignition from whatever source would reasonably
likely lead to an explosion or fire exacerbated by the
highly volatile nature of the unrockdusted areas that
would or could carry the fire on through the section.
Accordingly, I find the violation is "significant and substantial"
For the same reasons, I find a high degree of
gravity associated with the violation, that is, the occurrence of the event against which the cited standard is
directed was "reasonably likely."
o

Appropriate Penalty
Under section llO(i) of the Act, the following criteria
are to be considered in assessing a civil penalty:
(l} the
operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of
the operator charged, (3) whether the operator was negligent,

334

(4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator in attempting to
achieve rapid compliance after notification of the violation.
It is stipulated herein that the operator is
moderate-sized and that the amount of penalty will not
affect the operator's ability to continue in business. A
computer printout summarizing a history of 32 prior violations of 30 C.F.R. § 75.403 at the Nelms No. 2 Mine over a
two year period (GX-2) indicates to me that a chronic
problem of non-compliance with this particular standard
exists. Further, I find that the management of Y&O had
actual knowledge of the violation at issue prior to the
issuance of the subject citation even though the condition
was not recorded by the previous night shift section foreman
on his onshift report nor by the day shift foreman on either
his preshift or onshift report, as it should have been. The
company's position on this issue is that the day shift
foreman had every intention to clean and rockdust the areas
involved before mining. However, the citation was issued
first and I find that the operator is chargea:Ole with a high
degree of negligence in failing to correct this condition
which it's management knew existed, especially in light of
its violation history in this area.
I have already stated
my findings on gravity, supra, and further find that the
operator did expeditiously clean up these areas and bring
them into regulatory compliance after the citation was
issued. Considering all of these facts, I conclude that a
penalty of $400 is appropriate.
Although the parties in their closing arguments asked
me to make a ruling on whether the citation herein was
properly classified as an "unwarrantable failure," inasmuch
as the operator did not contest this section 104(d) (1) citation pursuant to section 105(d) of the Act, I am without
authority to consider the special "unwarrantable failure"
finding in this civil penalty proceeding. See Pontiki Coal
Corporation v. Secretary, 1 FMSHRC 1476 (1979) and Wolf
Creek Collieries Company, PIKE 78-70-P (1979). There is,
however, ample evidence to support such a finding herein.
II. Docket Nos. LAKE 85-76-R and LAKE 85-93 (Citation
2330248 and Order 2330257)
These cases involve the issuance of a section 104(a)
citation (No. 2330248) on March 14, 1985, and a related

335

section 104(b) order (No. 2330257) issued on April 25, 1985,
for an alleged violation of 30 C.F.R. § 71.100. ~
Citation
The citation herein was issued by MSHA Inspector Nick
Vucelich and alleged as follows:
Based on the results of three (3) valid dust
samples collected by MSHA inspector the average
concentration of respirable dust in the working
environment of the designated work position
902-0-392, was 4.2 mg/m3 which exceeded the
applicable limit of 2.0 mg/m3. Management shall
take corrective action to lower the respirable
dust and then sample each production shift until
five (5) valid samples are taken and submitted
to the Pittsburgh Respirable Dust Processing
Laboratory. The following list of samples were
those used to determine the citation.
On the 7th, 11th, and 13th of March 1985 Inspector
Vucelich conducted respirable dust sampling tests of Y&O's
tipple operator. The operator wears a sampling pump
while working at various locations on the surface, including the sampling plant, for approximately seven hours. The
tipple operator on the 7th was Edward Krankovich. On the
11th and 13th it was Gary
sher.
The tipple operator's
duties include cleaning the sampling plant for about one
hour per shift where coal on conveyor belts is crushed by
a hammermill.
The sampling plant is an L-shaped windowless
building approximately 40
wide, 70 feet long and about
40
from floor to ceiling, with a door on either end.
As the coal enters t.he building, the hammermill crushes it.
The tipple operator's job in this building is to sweep
the coal dust off the walls, floors, and equipment with a
broom and hand brush.
Mr. Fisher testi
at the hearing and stated that the
sampling plant was extremely dusty at the time the citation

'?:./

30 C.F.R. § 71.100 provides:
Each operator shall continuously maintain the
average concentration of respirable dust in the mine
atmosphere during each shift to which each miner in
the active workings is exposed at or below 2.0 milligrams of respirable dust per cubic meter of air.
Concentrations shall be measured with an approved
sampling device and expressed in terms of an equivalent concentration determined in accordance with
§ 71.206 (Approved sampling devices; equivalent
concentrations).

336

was issued and had been since it was installed and put on
line some two years before.
It took him on average one hour
per shift to clean the plant and after it was back in operation for an hour he states you couldn't hardly tell anyone
had been in there.
He was concerned about the atmosphere in
the sampling house because with all the float dust in suspension there was danger of an explosion.
The results of the three aforementioned respirable dust
sampling tests were 3.3 milligrams of respirable dust on
March 7, 1985; 1.5 milligrams on March 11, and 8.0 on
March 13, 1985. Theaverage was 4.2 milligrams. This
amounts to a violation of 30 C.F.R. § 71.100 which requires
that exposure level be maintained at 2.0 milligrams or less.
The operator again admits that there was a violation of the
cited standard and accepts the fact that the samples showed
this.
On March 14, 1985, after he received the results o~ the
sampling, Inspector Vucelich issued the 104(a) citation
herein and gave the company twenty working days to abate the
same.
The operator was and had been aware of the excessive
dust in the sampling plant and was attempting to alleviate
the problem.
They tried various corrective measures such
as washing i t down with a water hose, installing limit
switches on the feed conveyor to shut down the hammermill
when there was no coal on the conveyor, and using small
industrial-type vacuum cleaners. None of these things
worked.
Ultimately, they installed a tota'.l: dust collection
system at a cost of $45,000.
Inspector Vucelich made a finding of moderate negligence on this citation because the hazard presented, i.e.,
an extremely dusty environment, could cause an occupational
illness called coal worker's pneumoconiosis or "black lung,"
and these conditions had prevailed in the sampling plant
for some two years, since i t was opened in 1983. He made a
gravity finding of "reasonably likely" and marked this as
a "significant and substantial" violation because the level
of respirable dust in the sampling plant was such that it
was reasonably likely to lead to serious health problems
for the tipple operators who spend approximately one hour
a day in that environment and/or could cause an ignition
of coal dust.
In its defense, Y&O contends that even though the samples
demonstrate a violation of 30 C.F.R. § 71.100, the negligence
finding, the gravity finding and the "S&S" finding on the

337

citation are not supported by the evidence.
I disagree.
It is undisputed that the operator knew of the extremely
dusty conditions in its sampling plant for the two years of
its existence. Even given the fact that this was a difficult
engineering problem to solve and a relatively expensive one
to correct, two years is simply too long to have allowed
this situation to exist. As for the danger to the health
of the tipple operators who had to spend approximately one
hour per shift in that environment for a period of two
years, it is evident to me that it is reasonably likely
there has been some adverse impa
to their health of a
serious nature, i.e., chronic lu_
~sease (pneumoconiosis).
The additional danger of an exp lo~ ..1 caused by the suspended float dust also existed for chis extended period·of
time.
I find that the violation has been proven as charged.
The Withdrawal Order
During the abatement period, the operator took and ·
submitted samples as follows:
March 20, 1985
March 21, 1985
March 22, 1985
April 8, 1985
April 9, 1985

1.4 milligrams
ft
1.5
It
3.9
II
1. 5
3.9
"

The average respirable dust concentration of these five
samples is 2.4 milligrams which was still out of compliance
with the pertinent regulation.
Therefore, on April 25, 1985, Inspector Vucelich issued
a section 104(b) withdrawal order alleging as follows:
Results of the five (5) most recent samples received by ADP and collected by the operator from
the working environment of the designated work
position surface area No. 902-0 occupation code
392 shows an average concentration of 2.4 mg/m3.
Due to the obvious lack of effect by the operator to control resp-irable dust, the period of
reasonable time for abatement of this violation
is not further extended and all miners working
in the area shall be withdrawn until the violation is corrected.
When Inspector Vucelich issued the aforementioned order,
it is clear and undisputed that the violation had not been
abated within the time specified in the citation, i.e., by
8 a.m. on April 15, 1985. The question before me then is
whether the inspector acted reasonably in refusing to extend

338

the time for abatement. The reasonableness of his actions
must be determined on the basis of the facts confronting him
at the time he issued the order. United States Steel
Corporation, 7 IBMA 109 (1976).
In determining whether the period for abatement should
have been extended by Inspector Vucelich at that time, the
following factors should be considered:
(1) the degree of
danger that any extension would have caused to miners, (2)
the diligence of the operator in attempting to meet the
time originally set for abatement, and (3) the disruptive
effect an extension would have had upon operating shifts.
Consolidation Coal.company, BARB 76-143 (1976).
The overriding consideration in this regard is, of
course, the degree of danger that any extension would have
caused the tipple operators.
It is obvious that any extension of the abatement period would have commensurately
extended the individuals' exposure to the hazards enumerated
above.
The second consideration is the diligence of the operator in attempting to meet the time originally set for
abatement.
Inspector Vucelich testified that the excessively dusty condition had existed for some two years and in ·his
opinion just issuing a regular citation and giving extensions was not getting the problem resolved.
He stated that,
"with this (b) Order we started to get results." Accordingly, I conclude that Y&O did not make a diligent effort to
abate the condition until the section 104(b) order was
issued.
Lastly, the third factor to consider is the disruptive
effect that an extension of abatement time would have on
operating shifts. There are no allegations made by the
parties on this point and no evidence was taken apropos of
this issue.
Therefore, I find that any adverse effect the
order had is far outweighed by the other factors considered
herein.
I therefor conclude that Inspector Vucelich did
not act unreasonably in not extending the time for abatement.
Accordingly, Order of Withdrawal No. 2330257 was properly
issued and is affirmed.
Appropriate PenaltJ::
Under section llO(i) of the Act, the following criteria
are to be considered in assessing a civil penalty:
(1) the
operator's history of previous violations, (2) the appropriateness of such penalty to the size of the business of the
operator charged, (3) whether the operator was negligent,

339

(4) the effect on the operator's ability to continue in
business, (5) the gravity of the violation, and (6) the
demonstrated good faith of the operator in attempting to
achieve rapid compliance after notification of the violation.
The operator and the mine here at issue are moderate in size
and
is stipulated that the amount of penalty assessed
would not impair the operator's ability to continue in
business. The only other violation of the cited standard
in evidence in this record is one in April of 1984. However,
the record is replete with evidence that the operator had
actual knowledge of the excessively dusty conditions in the
sampling plant for some two years.
I specifically find
that the operator was highly negligent in failing to abate
the cited condition within the time specified for abatement
after it knew of the condition for two years.
It is therefore
obvious to me that Y&O failed to exercise good faith to
achieve timely abatement and indeed did not achieve abatement until after the order
withdrawal had been issued.
The health hazard and potential for an ignition of suspended
coal dust was allowed to continue to exist for a very long
period of time.
These conditions posed a danger of at least
serious injury to at least two miners. Considering all of
these factors, I conclude that a penalty of $400 is appropriate.
ORDER
Citation No. 2331148 is AFFIRMED. Likewise, Citation
No. 2330248 and Order No. 2330257 are hereby AFFIRMED.
Youghiogheny and Ohio Coal Company is ORDERED to pay a
penalty of $800 within 30 days of the date of this decision.

Roy J
urer
Admi istrative Law Judge

Distribution:
Robert Kota, Esq., Youghiogheny & Ohio Coal Co., P. o.
Box 1000, St. Clairsville, OH 43950 (Certified Mail)
Patrick M. Zohn, Esq., Office of the Solicitor, u. s.
Department of Labor, 1240 East Ninth St., Cleveland, OH
44199 (Certified Mail)

340

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

March 7, 1986

.

CONTEST PROCEEDING

..

Docket No. WEVA 86-29-R
Citation No. 27057341
10/23/85

SOUTHERN OHIO COAL COMPANY,
Contestant :

:

v.

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

.

Martinka No. 1 Mine

ORDER OF DISMISSAL
Appearances:

David A. Laing, Esq., and Alvin J. McKenna,
Esq., Alexander, Ebinger, Fisher & Lawrence,
Columbus, Ohio, for Contestant1
Robert A. Cohen, Esq., Office o£ the Solicitor,
U.S. Department of Labor, Arlington, Virginia for
Respondent.

Before:

Judge Broderick

Pursuant to notice, the above proceeding was called for
hearing in Fairmont, West Virginia on November 20, 1985. The
parties agreed on the record to a settlement of the contested
citation, whereby MSHA would remove certain areas from the
scope of the citation (requiring the installation of guard
rails), and Contestant agreed to install berms and guardrails
in the remaining areas. The abatement time of the citation was
extended.
On March 5, 1986, Contestant filed a motion to withdraw
its Notice of Contest on the ground that the provisions of the
agreement had been effected and the citation was terminated.
Premises considered, the motion is GRANTED and this
proceeding is DISMISSED.

-/fv/lu?.8 ~j'd;&_

.._,,.·

.I

t-r; R...

James A. Broderick
Administrative Law Judge

341

Distribution:
David A. Laing, Esq., Alexander, Ebinger, Fisher & Lawrence,
1 Riverside Plaza, 25th Floor, Columbus, OH 43215-2388
(Certified Mail)
Robert A. Cohen, Esq., U.S. Department of Labor, Office of the
Solicitor, 4015 Wilson Blvd., Arlington, VA 22203 (Certified
Mail)
slk

342

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

March 10, 19.86
SECRETARY OF LABORu
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
Petitioner

CIVIL PENALTY PROCEEDING
Docket No. WEVA 85-170
A. C. No. 46-06661-03503

v.
E.C. COAL SALES

No. 3 Mine
CO~ANY,

INC.,

Respondent
DEFAULT DECISION
Before:

Judge Maurer

.

On February 19, 1986, a show cause order was issued in
this case giving respondent ten (10) days to show cause why
its ANSWER should not be struck and a DEFAULT DECISION
entered against it for its failure to answer official correspondence or otherwise actively defend this case.
Respondent has again failed to respond and therefore
is deemed to have waived any further right to a hearing.
The proposed civil penalties shall therefore be made the
final order of the Commission.
WHEREFORE IT IS ORDERED that respondent pay the Secretary's proposed civil penalties in the amount of $186 within
30 days of this decisiono

Law Judge

Distribution:
Patricia Larkin, Esq., Office of the Solicitor, U. S. Department of Labor, 4015 Wilson Blvd., Arlington, VA 22203.
(Certified Mai 1}
E. C. Coal Sales Companyu Inc., P.
25802 (Certified Mail)

343

o. Box 2005, Beckley, WV

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
FALLS CHURCH, VIRGINIA 22041

March 11, 1986
BOYD ASHER,
Complainant

v.
FAIRDALE MINING, INC.,
Respondent

.
.
.
.

DISCRIMINATION PROCEEDING
Docket No. KENT 85-28-D
MSHA Case No. BARB CD 84-40

ORDER OF DISMISSAL
Before: Judge Melick
Efforts by the Commission Chief Judge and the undersigned
to serve show cause orders upon Respondent by certified and
first class mail at the addresses provided by Complainant have
been unsuccessful with the documents most recently being
returned marked by the U.S. Postal Service as "Attempted - Not
Known" and addressee "unknown" at those addresses.
Accordingly on February 25, 1986 an order to show cause
was issued to the Complainant requiring him to provide evidence of service of his Complaint upon a lawfully designated
corporate agent, and to provide the undersigned with the
address of said corporate agent, on or before March 7, 1986.
Counsel for the Complainant replied on February 28, 1986, but
did not provide sufficient evidence that the complaint was
served upon a lawfully designated corporate agent, did not
identify any lawfully designated corporate agent upon whom
service could be made and did not provide a valid address for
said corporate agent.
Commission Rule 7, 29 C.F.R. § 2700.7 provides in relevant part that a complaint of discharge, discrimination or
interference "shall be served by personal delivery or by
registered or certified mail, return receipt requested."
Rule 4(d)(3) Federal Rules of Civil Procedure (applicable
hereto by virtue of Commission Rule l(b), 29 C.F.R. §
2700.l(b)) provides that service upon a domestic corporation
shall be made "by delivering a copy of the • • • complaint to
an officer, a managing or general agent, or to any other
agent authorized by appointment or law to receive service of
process and, if the agent is one authorized by statute to
receive service and the statute so requires, by also mailing
a copy to the defendant."
The Complainant in these proceedings has failed to
provide satisfactory proof of service upon a lawfully
designated corporate agent and has failed to provide the
344

identity of or address for any such agent after adequate
opportunity has been given. Under the ci umstances I ave
no choice but to dismiss these proceedings.

ar~ Melick
·' .
Admi·r.p.strati
v

i

Distribution:

.

Judge

Mr. Boyd Asher, Box 835, Hyden, KY tl74~ (Certified Mail)
Phyllis Robinson Smith, Esq., P.O. Box 1230, Hyden, KY 41749
(Certified Mail)
Fairdale Mining, Inc., 111 Reservation Avenue, Beckley, WV
25801 (Certified Mail)
rbg

345

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

March 12, 1986

DISCRIMINATION PROCEEDING

BRYAN P. EVERSON
Complainant

v.
ONEIDA SAND & GRAVEL, INC.,
Respondent

.
.

Docket No. LAKE 85-13-DM
MSHA Case No. MD 84-32
Oneida Sand & Gravel

DECISION
Appearances:

Before:

Roy Batista, Esq., Andrews, Greg, Batista &
Andrews, Canton, Ohio, for Complainant
James B. Lindsey, Esq., Boggins, Centrone &
Bixler, Canton, Ohio, for Respondent

Judge Melick

This case is before me upon the complaint by Bryan P.
Everson alleging that he was discharged from Oneida Sand &
Gravel, Inc. <Oneida) on March 23, 1984, in violation of
section 105(c)(l) of the Federal Mine Safety and Health Act
SPen .- , the "Act. 11 1
Of 1977 , 30 U • S • C • ;;::.i::I 801 et =.::t...:..
In order for Mr¢ Everson to establish a prima facie
violation of section 105(c)(l) of the Actu he must prove by a
preponderance of the evidence that he engaged in an activity
protected by that section and that his discharge from Oneida
was motivated in any part by that activity. Secretary ex
rel. David Pasula v. Consolidation Coal Company, 2 FMSHRC
2786 (1980) 9 rev 1 d on other grounds sub nom Consolidation
Coal Comoany Vo Marshall~ 663 F.2d 1211 (3rd Cir. 1981). See
also Boitch Vo FMSHRC, 719 F.2d 194 (6th Cir. 1983) and NLRB
Vo Transportation Management Corpu 462 U.S. 393 (1983)u ~~
lsection 105Cc)(l) reads in part as follows:
~No person shall discharge • o • or cause to be discharged
or otherwise interfere with the exercise of the
statutory rights of any miner, • • • in any • • • mine subject to this Act because such miner, • • • has filed or made
a complaint under or related to this Act, including a complaint notifying the operator or the operator's agent, • • •
of an alleged danger or safety or health violation in any
• mine or because of .the exercise by such miner, • • •
on behalf of himself or others of any statutory right afforded
by this Act. 11
9

••

346

affirming burden of proof allocations similar to those in the
Pasula case.
In this case Mr. Everson maintains that he refused to
show up for work at the Onieda sand and gravel plant on
March 21, 1984, because of hazardous conditions caused by
freezing rain. According to the evidence the Complainant had
several years experience at various sand and gravel operations and knew most of the jobs in the business. He had
previously worked for Oneida beginning in 1983 but, because
of the seasonal nature of the business, was laid-off and
began receiving unemployment benefits in December 1983. In
early March 1984, Oneida vice president Rodney Smitley wished
to resume operations .and tried to locate Everson. Everson
was then continuing to collect unemployment benefits and was
in Florida for the Daytona races. Smitley was finally able
to contact Everson on March 14, 1984, and asked him to return
to work immediately. Everson, who was continuing to receive
unemployment benefits, requested a delay until ·Monday March 19
and Smitley agreed.
It is not disputed that Everson thereafter worked at the
Oneida Plant on March 19 and 20 but called in on March 21,
telling Smitley that because of the freezing rain "we can't
work" and "the best thing to do was to wait for the weather
to clear up". Everson also informed Smitley in this phone
call that since the weather for the next 3 days was forecast
to be similar he would not appear for work for the remainder
of the week. Smitley then offered Everson work inside the
garage but Everson declined because the heaters were not
vented outside and claimed that the fumes would bother him.
Everson concedes that he did not inquire as to the conditions
at the job site nor did he visit the job site either that day
or the following 2 dayso He does not contend, moreover, that
his refusal to show up for work was based on any inability to
drive to work because of hazardous road conditions.
Rodney Smitley acknowledged that Everson called on the
morning of March 2lu and said that he was taking the rest of
the week off. According to Smitley he told Everson during
this phone call that it was important for him to appear for
work that day because he already had trucks waiting to be
loaded. Smitley anticipated that Everson would operate the
front end loaderu loading trucks with sand and gravel when
they appeared, and while waiting for empty trucks, would work
inside the heated garage disassembling spare parts for the
drag line.
'
It is not disputed that the front-end loader was equipped
with a heated cab and windshield wipers. Moreover, according
to Smitley, conditions at the plant were not unsafe that

347

morning. Smitley himself loaded the trucks that day without
any particular difficulty. According to Smitley the area in
which the front-end loader operated was flat and paved with
gravel. There was little snow accumulation and there was no
hazard.
Smitley was obligated by contract to continue to provide
sand and gravel so he found it necessary to hire a replacement for Everson. Commencing on March 22nd, the new employee
performed the jobs that Everson would have performed including
work in the garage disassembling parts and loading trucks with
the front-end loader. On March 23rd Everson called Smitley
asking if he could return to work the following Monday.
Smitley told him that he had already been replaced.
In order for Everson 1 s work refusal in this case to be
considered protected under the Act he must prove that he then
entertained a good faith, reasonable belief that to work
under the conditions presented would have been hazardous.
Miller v. FMSHRC, 687 F.2d 194 (7th Cir. 1982): Robinette v.
United Castle Coal Company, 3 FMSHRC 803 (1981).
In this
regard Everson testified that as he was driving to work on
the morning of March 21st his car window started freezing up
and there was ice and snow on the trees, ground and sidewalks.
After driving about 2-1/2 miles he stopped and called the
plant, advising Smitley that the weather was so bad it would
be hazardous to work.
It is not disputed that during this
phone call Smitley told Everson that he was needed that day
to load trucks already waiting and that he could also work
inside the heated garage.
The only evidence regarding conditions at the Onieda
plant on that day comes from Rodney Smitley. He operated the
front~end loader in Eversons absence and did not find the
conditions to be hazardous. The loader was operated from a
heated cab on a flat gravel surface. Thus, as a factual
matter, the conditions have not been shown to have been
hazardous. Moreover Everson never inquired about nor checked
the conditions at the plant himself and refused to show up
for work for the rest of the week based upon a long range
weather forecast. Under the circumstances I cannot find that
Everson entertained a reasonable or good faith belief that
the conditions at the plant were hazardous in regard to the
contemplated work.
In reaching this conclusion I have not disregarded
Everson's testimony that he suffered a concussion several
years before at another plant when he fell some 12 feet from
a screen and struck his head on frozen ground. However
Everson was never asked to work on the screen at the Oneida
plant on the day at issue and there is no evidence that

348

Everson would have been asked to perform such work. Everson
has accordingly failed to establish a pr ma facie violation
of section 105(c)(l) of the Act and this omplaint must therefore be dismissed. Fasula, supra.2

Distribution:
Roy Batista, Esq., 4808 Mundson,
(Certified Mail)
Mr. Bryan P. Everson, 800 5th N.W., Apt. 6, Canton, OH 44703
(Certified Mail)
James B. Lindsey, Esq., Boogins, Centrone & Bixler, Central
Trust Tower - 7th Floor, Canton, OH 44702 {Certified Mail)
Mr. Rod Smitley, Oneida Sand & Gravel, 8000 Blade Road,
Malvern, OH 44644 (Certified Mail)
rbg

2rn his complaint filed with this Commission on November 16,
1984, Mr. Everson also made vague allegations of subsequent
discriminatory activity and clarified at hearing that "probably
in May 1984 11 he had been offered a job by Rod Smitley
conditioned on his "unemployment" getting "straightened out"
but that Smitley later said that his father would not allow it
because of complaints Everson made to OSHA and MSHA. The
record at hearing shows that Everson in fact did file complaints to MSHA and OSHA in April 1984 and that, as a result,
Oneida was issued several MSHA citations. These allegations of
unlawful discrimination are separate and distinct from the
allegations before me and have not been presented to the
Secretary of Labor as required by section 105Cc)(2) of the Act.
Accordingly, I found at hearing that these complaints were
premature and that I was without jurisdiction at that time to
~ntertain them.

349

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

March 12, 1986
BRIAN T. VEAL,
Complainant

v.

DISCRIMINATION PROCEEDING
Docket No. LAKE 86-29-D

..
.
0

KERR-McGEE COAL CORP.,
Respondent

&

ORDER DENYING MOTION TO DISMISS
PREHEARING ORDER
On December 19, 1985, Complainant filed a complaint
alleging that he was discharged by Respondent in violation of
section lOS(c) of the Federal Mine Safety and Health Act of
1977 (the Act). On January 14, and February 18, 1986,
Respondent filed a Motion to Dismiss on the grounds that the
complaint fails to state a cause of action and is frivolous.
The motion does not attempt to analyze or discuss the documents
filed pro ~ by Complainant, but merely states the conclusion
that they do not state a cause of action under the Act.
The Complaint, in the form of a letter to the Commission
dated December 16, 1985, alleges:
The MSHA District Manager wrote a complimentary
letter to Respondent.

11

2) Complainant was denied the right to representation
during the MSHA investigation of his complaint.
3) MSHA did not notify Complainant of the basis for its
denial of his complaint.
I conclude t.hat none of these allegations state a cause
of action under section 105(c) since they do not involve
adverse action by Respondent against Complainant for activities
protected under the Act.
The Complaint goes on to list 9 "specifications" in
support of Complainant's claim:
la The vehicle involved, called a "gopher," was an
experimental one and was undergoing testing and
evaluation. (It appears elsewhere that claimant

350

contends he was discharged following an accident
while he was operating the vehicle.) A brake
caliper bolt was broken on the vehicle. The
vehicle did not have an independent emergency brake.
The vehicles at Respondent's mine were modified for
third and fourth gear operation, which could be
hazardous. This fact was known to the Respondent
and to MSHA, but the vehicle operators were not
warned of the hazard.
2. Operator and passenger training for personnel driving
and riding in the gophers was brief, informal and
inadequate. Safety devices were not installed.
3. The terrain in the mine was hazardous for the
vehicles. The company or MSHA closed off a section
following the accident.
4. Job performance competition imposed mental pressures
on personnel which affected safety.
5. Complainant worked under a supervisor who was not
properly certified or trained.
6. Respondent provided false information to the MSHA
investigator concerning Complainant's safety records.
7. Respondent failed to provide prompt and proper
emergency medical treatment following Complainant's
accident and performed blood analysis testing without
reasonable cause.
80 The investigation failed,to recognize a deficiency in
the training and qualifications of instructors.
9. The Respondent prompted and coaxed witnesses during
the investigation and attempted to force Complainant to
sign an accident report which was false.
The claim filed with MSHA on October 8, 1985 asserted that
Complainant had been dismissed because he had an accident
because of bad brakes on a vehicle that had been red tagged.
"The PV was given to me to use by my supervisor who had been
driving it and there was no red tag on it. 11 The complaint
further stated that Complainant was discharged because he is
taking medication for an injury due to a previous accident.
The file contains a copy of a handwritten statement taken
by an MSHA Investigator on November 6, 1985, which copy was

sent to the Commission by Complainant.

351

The statement indicates that Complainant was injured in a
roof fall accident in January 1985 and was off work for some
time. It states that he is still receiving treatment. After
returning to work he was "worked hard" and "harrassed." The
company "used my injury as an example and told all the
employees that they were beat out of a safety award because of
my accident. • • ·
The statement describes the accident of Septemb.er 30,
1985 when Complainant was driving a PV and collided with a coal
pillar because he had no brakes. The following day he was
asked to sign an accident report, but refused "because it did
not state the cause of accident properly." " • • • they got
angry and • • • harrassed me and told me to fill out another
accident report." The following day he was told he was being
terminated bec.;.use he "neglected to turn in the weak brakes on
the P.V." He was not given a written explanation of his
termination.
Complainant requests reinstatement and back pay.
In order to establish a prima facie case of
discrimiantion under section 105(c) of the Mine Act, a
complaining miner bears the burden of production and proof to
establish that (1) he engaged in protected activity, and (2)
the adverse action complained of was motivated in any part by
that activity. Secretary on behalf of Fasula v.
Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (October
1980), rev'd on other grounds sub nom. Consolidation Coal Co.
v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Secretary on behalf
of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18
(April 198l)e The operator may rebut the prima facie case by
showing either that no protected activity occurred or that the
adverse action was not in any part motivated by protected
activity. If an operator cannot rebut the prima facie case in
this manner it nevertheless may defend affirmatively by proving
that (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 proof with regard to the affirmative
defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38
(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 954, 958-59 CD.C. Cir. 1984)
(specifically approving the Commission's Pasula-Robinette test).
The Supreme Court has approved the National Labor Relations
Boards's virtually identical analysis for discrimination cases
arising under the National Labor Relations Act. NLRB v.
Transportation Management Corp.l 462 U.S. 393, 397-403 (1983).

352

The question presented by the Motion to Dismiss is
whether Complainant has stated a cause of action under section
105Cc>, that is, whether he has alleged that the adverse action
visited upon him (his dismissal) was motivated in any part by
protected activity.
In deciding this question without having
heard any evidence, I am mindful that Complainant is not
represented by counsel, and that his "pleadings" are rambling
documents. They do, however, allege Cl) safety related
complaints, (2) an animus on the the part of Respondent
apparently related to those complaints.
Under the circumstances, I conclude that the documents in
the file allege facts which, if true, are sufficient to
establish a prima facie case. Therefore, the Motion to Dismiss
is DENIED. Respondent is ORDERED to file an answer to the
complaint within 15 days of the date of this order.
PREHEARING ORDER
In accordance with the provisions of section 105Cc) of
the Act,this case will be called for hearing at a time and
place to be designated in a subsequent notice.
The parties are directed to exchange lists of witnesses
who may be called to testify at such a hearing and copies of
exhibits which may be offered in evidence. Copies of witness
lists and exhibits shall be exchanged and furnished me on or
before March 28, 1986. The parties shall by the same date.
indicate the preferred hearing site, and inform me of any dates
in May 1986 which would pose scheduling difficulties were I to
select them for hearing.

'~ dt~dLVl~

~v·James A. Broderick

Administrative Law Judge
Distribution~

Brian T. Vealv 1612 Eldorado Street, Eldorado, IL 62930
(Certified Mail)
Carolyn G. Hill, Esq., Human Resources Division, Kerr-McGee
Coal Corporation, P.O. Box 25861, Oklahoma City, OK 63125
(Certified Mail)
slk

353

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

80204

March 12 I 1986

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 84-100-M
A.C. No. 42-01789-05502
Cottonwood Mine

HYDROCARBON RESOURCES, INC.,
Respondent

.

.

DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Petitioner;
Mr. Chad Evans, Former General Manager, Hydrocarbon
Resources, Inc., Salt Lake City, Utah, pro~·

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration (MSHA) , charges respondent with violating safety
regulations promulgated under the Federal Mine Safety and Health Act,
30 U.S.C. § 801 et seq., (the Act).
After notice to the parties, a hearing on the merits took place
on May 21, 1985, in Salt Lake City, Utah.
The parties waived their right to file post-trial briefs.
Issues
sov

The issues are whether respondent violated the regulations; if
what penalties are appropriate.
Citations
There are four citations contested in this case.

Citation 2008144 alleges a violation of 30 C.F.R. § 57.3-22,
now codified as § 57.3022, which provides as follows:
Miners shall examine and test the back,
face, and rib of their working places at
the beginning of each shift and frequently
thereafter. Supervisors shall examine the
ground conditions during daily visits to
insure that proper testing and ground control
practices are being followed. Loose ground

354

shall be taken down or adequately supported
before any other work is done. Ground conditions along haulageways and travelways
shall be examined periodically and scaled or
supported as necessary.
Citation 2008145 alleges a violation of 30 C.F.R.
now codified as § 57.19110, which provides as follows:

§

57.19-110,

A substantial bulkhead or equivalent protection shall be provided above persons at
work deepening a shaft.
Citation 2008146 alleges a violation of 30 C.F.R.
now codified as § 57.19025, which provides as follows:

§

57.19-24(b),

(a)
Wire rope shall be attached to the
load by a method that develops at least 80
percent of the nominal strength of the rope.
(b)
Except for terminations where use of
other materials is a design feature, zinc
(spelter) shall be used for socketing wire
ropes.
Design feature means either the manuturer' s original design or a design approved by a registered professional engineer.
(c)
Load and attachment methods using
splices are prohibited.
Citation 2008147 alleges a violation of 30 C.F.R. § 57.11-37,
now codified as § 57.11037, which provides as follows:
Ladderways constructed after November 15,
1979, shall have a minimum unobstructed
-cross-sectional opening of 24 inches by
24 inches measured from the face of the
ladder.
Stipulation
At the commencement of the hearing the parties stipulated that
Bruce Green, an employee of respondent, was fatally injured when struc~
by a falling rock.
Respondent's representative further stated that the company has
six employees.
In addition, respondent has gross income under $10,000
(Tr. 6-9).
The Secretary's Case
After being advised of a fatality, MSHA, by its Inspector Ronald
L. Beason, inspected respondent's Cottonwood Mine on December 28, 1982
(Tr. 13-16). The mine was under development and at the time the only

355

activity was the driving of a shaft, by hand, at the 415-foot level
(Tr. 16, 80). The vertical 12-foot-wide shaft went from foot wall to
hanging 1/ wall. A slight bend could be observed in the shaft as it
descended (Tr. 17, 18).
The shaft was divided into three compartments. They consisted
of a utility compartment with a vent line, a manway compartment with
an emergency escapeway and a skip compartment. The skip compartment,
through which the mine is entered, was an open 8 by 8 foot area (Tr. 18,
19). The skip bucket was 22 inches thick, i.e., from front to back.
It had a one-ton capacity and measured 46 inches wide and 48 inches
deep (Tr. 19, 20).
Bruce Green was killed on December 23, 1982. On the day of the
subsequent inspection the bottom 100 feet of the mine had filled with
water (Tr. 20, 21). The inspector learned of the configuration of the
bottom of the shaft from the company's representative, Chad Evans
(Tr. 2 2) •
At the time of the accident the mining procedure was for the
miners to hand muck the ore in the bottom of the shaft. They would
thereafter hand muck the ore into the skip bucket when it returned
after a six-minute trip to the surface. When the skip was filled and
moved to the surface, the miners would continue digging in the skip
compartment and move the ore to the utility and manway compartments
(Tr. 22-25, 29-30). The company had been mining in this manner for
three weeks. Prior to that time the miners used a vacuum system to
move the gilsonite to the surface. But that system became inoperative
three weeks before the accident (Tr. 22).
When the bucket went up and down the shaft it dragged the sides
and the hanging wall (Tr. 28). When the inspector descended into the
shaft he observed and sounded the loose ground in a number of areas.
The following levels were tested: 10 to 60, 163, 170, 177, 190, 200,
215, 240p 290, 300, 315 and 320. There was a large hump at the 260-foot
level where the shaft went from hanging to foot wall. At this point
the g sonite vein separated from the shaft (Tr. 28, 34-38). There
were no bolts or lagging to prevent rocks from falling into the shaft
(Tr. 40). There was danger that the whole area of the hanging wall
could fall from the 10-foot level to the 60-foot level. A number of
rocks had fallen (Tr. 40).

In the inspector 1 s opinion the condition of loose ground he observed five days after the fatality, especially at the 60-foot level,
also existed on the day of the accident (Tr. 39, 40, 49).

1/ A foot wall is at the bottom of an angle; a hanging wall is
overhead (Tr. 17).

356

The skip compartment did not have a bulkhead (Tr. 29-31). When
using the vacuum system the skip itself could be used as a bulkhead;
however, it could not serve as such when it was hauling ore to the
surface. There was a two-foot opening on each side of the skip. This
would permit rocks to fall and strike miners (Tr. 31-33). The company
had a type of a bulkhead at the surface. This bulkhead would not
prevent loose material from dropping down the shaft.
Its function
was to prevent ore from dropping down the shaft after it had been
dumped at the surface (Tr. 33}.
In a mine of this type a bulkhead should be positioned immediately over the miners working in the bottom of the shaft. The bulkhead
protects the miners from being struck by any material that might fall
in the shaft. There were bulkheads over the utility and manway compartments together with a landing every ten feet (Tr. 26-29, 62-63).
Bruce Green was killed when he was struck by a 6 by 6 by 1/2 inch
rock. At the time Green and his father were basically under the utility
compartment.
Bruce Green had reached out and was mucking in the bottom
of the shaft (Tr. 41, 42, 61). A proper bulkhead over the skip would
have prevented the rock from striking the miner (Tr. 42).
The company's log books failed to indicate that there had been
shaft inspection from December 21 through December 23 {Tr. 44).
Inspector Beason also inspected the six U-bolts that held the rope
to the skip bucket.
The saddle was on the shorter, or the dead end of
the rope.
The rope can be damaged when a bolt is placed on its working
end.
The bolt itself
designed so as to protect the live end of the
rope (Tr. 45, 46, 79).
The manway compartment served as an emergency escapeway. Tenfoot ladders extend from one level to another. Several of the manways were obstructed. One such passage, through a bulkhead, measured
only 8 inches by 14 inches.
To continue up the manway it would be
necessary to crawl out into the open shaft and swing up to the next level
(Tr. 46-47).
The Respondent's Case
Chad L. Evans indicated that he was the general manager for the
company at the time of this accident.
Evans, who was present during the MSHA inspection, also conducted
his own investigation (Tr. 87-89}. The witness submitted a drawing of
the shaft (Tr. 90, 91; Ex. Rl).
Evans indicated that as the bucket was ascending, Royce Green
was standing under the utility area and his son was under the manway
area.
The miner was killed when he bent over to pick up a shovel.

357

The area between the skip and the sidewalls was probably less
than two feet on each side. However, he also indicated the lateral
distance from the skip to the sidewalls varied from 26 inches to
four feet (Tr. 94, 96).
MSHA told the company they could use the skip again.
In addition,
three previous inspections in 1982 and 1983 failed to show a violation
of the regulations contested here (Tr. 99; Ex. R2, R3, R4).
Evans had instructed his miners never to go into a skip compartment without overhead protection (Tr. 120). Evans' mining experience
indicated a need for a bulkhead before the fatality (Tr. 124, 125).
He had been advised that a bulkhead was in place. The placement of a
skip over the miners constituted such a bulkhead (Tr. 124, 125).
In rebuttal Inspector Beason testified that Evans indicated that
he had not known that a bulkhead was necessary (Tr. 130, 136). In
addition, the hoist reports and daily logs indicated that 20 buckets
were moved on the day shift. This evidence contradicted Evans' testimony that three buckets were moved each shift (Tr. 133). The number
of buckets indicated to the inspector that the two miners were working
when the skip was moving (Tr. 126, 133).
Discussion
We will consider the citations in numerical sequence.
Citation 2008144
This citation requires that the ground be taken down or adequately supported before any other work is done. The operator failed
to comply with this regulation"
The inspector described in detail the
loose ground he both observed and sounded in the shaft. Respondent's
manager confirmed this evidence when he testified that forty percent
of the loose was removed-in abating the violative condition (Tr. 100).
Citation 2008144 should be affirmed.
Citation 2008145
The evidence relating to the installation of a substantial bulkhead indicates there was no such bulkhead. The operator's management
confirmed this condition. The miners at the time were deepening the
shaft. These work conditions made the standard directly applicable.
Citation 2008145 should be affirmed.

358

Citation 2008146
In connection with this citation the inspector detailed his
findings concerning the U-bolts.
He further expressed his opinion
that the operator violated the regulation.
Respondent offered no

cont~ary

evidence.

Citation 2008146 should be affirmed.
Citation 2008147
The record indicates that the ladderways were obstructed. One
such ladderway only measured 8 inches by 14 inches. These facts
establish a violation of the regulation. The operator offered no
contrary evidence.
However, § 57.11-37 by its very terms applies to ladderways
constructed after November 15, 1979. There is no evidence in this
case indicating when this ladderway was constructed.
Such evidence is necessary in order to sustain a violation of
the regulation.
Civil Penalties
The statutory mandate for assessing civil penalties is contained in 30 u.s.c. § 820{i).
It provides as follows:
(i}
The Commission shall have authority to assess
all civil penalties provided in this Act. In
assessing civil monetary penalties, the Commission
shall consider the operator's history of previous
violations, the appropriateness of such penalty
to the size of the business of the operator charged,
whether tne operator was negligent, the effect on
the operator's ability to continue in business, the
gravity of the violation, and the demonstrated good
faith of the person charged in attempting to achieve
rapid compliance after notification of a violation.
The Secretary proposed the following penalties:
Citation 2008144

(loose ground)

$4,000

Citation 2008145 (bulkhead)

2,000

Citation 2008146 (U-bol ts)

20

Citation 2008147 (ladderways)

20

The record indicates the operator had no previous violations
(Tr. 85; Ex. R2, R3, R4, RS). The operator should be considered as
small in view of its income as well as the number of its employe~s.
The negligence of the operator is apparent inasmuch as the violative

359

conditions were all open and obvious.
The only evidence of the operator's financial condition bearing on its effect to continue in business
is that the company's gross income was under $10,000.
In the absence
of any facts to the contrary I find that the payment of penalties will
not cause respondent to discontinue its business. Buffalo Mining Co.,
2 IBMA 226 (1973) and Associated Drilling, Inc., 3 IBMA 164 (1974).
The loose ground and the lack of a bulkhead directly contributed to
the death of the miner, hence the gravity is apparent and exceedingly
high.
In support of its good faith the operator argued that it has
always attempted to provide a conscientious and well-maintained [safety]
effort (Tr. 145, 146). The evidence fails to establish the operator's
claim. However, the company established its statutory good faith by
abating the violative conditions in this case.
On balance, I believe the penalties as set forth in the order of
this decision are appropriate.
Conclusions of Law
Based on the entire record and the factual findings made in the
narrative portion of this decision, I enter the following conclusions
of law:
1.
§

The Commission has jurisdiction to decide this case.

2.
Respondent violated 30 C.F.R. § 57.3-22, § 57.19-110 and
57.19-24{b).
3.
The Secretary failed to prove a violation of 30 C.F.R. §
57.11-37.
ORDER

Based on the foregoing findings of fact and conclusions of law
I enter the following order:
1. Citation 2008144 is affirmed and a penalty of $2,000 is
assessed.
2.
Citation 2008145 is affirmed and a penalty of $2,000 is
assessed.
3.
Citation 2008146 is affirmed and a penalty of $20 is
assessed.
4.

Citation 2008147 and all penalties therefor are vacated.

5.
Respondent is ordered to pay to the Secretary the sum of
$4,020 within 40 days of the date of this decision.

Law Judge
360

Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
Colorado 80294
(Certified Mail)
Mr. Chad Evans, Hydrocarbon Resources, Inc., 3098 Highland Drive,
Suite 100, Salt Lake City, Utah 84106
(Certified Mail)

/ot

361

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

March 12, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
Petitioner

v.
WESTERN ROCK PRODUCTS
CORPORATION,
Respondent

CIVIL PENALTY PROCEEDINGS
:

.
.
.

.

Docket No. WEST 85-23-M
A.C. No. 42-00415-05506
Cedar City Mine
Docket No. WEST 85-24-M
A.C. No. 42-01572-05505
Sorenson Pit Mine

DECISION APPROVING SETTLEMENT
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
Labor, Denver I Colorado I
for Petitioner;
Mr. Darrell G. Whitney, Western Rock Products
Corporation, St. George, Utah,
pro ~·

u~~IleJ;>gJ'."'l::Irl~nt _of

Before:

Judge Lasher

Subsequent to the commencement of the hearing in the above
two consolidated dockets, Respondent agreed to pay the penalties
set forth in the Secretary's Proposal for Penalty in full, to
witg
Docket No. WEST 85-23-M
Citation No.
2358849
2358850
2358851
2358852
2358853
2358854
2358855

Proposed and
Agreed Penalty
$ 227.00
20.00
227.00
227.00
227.00
276.00
276.00
TOTAL $1,480.00

362

Docket No. WEST 85-24-M
Citation No.
2358856
2358858
2358859
2358860
2360661
2360662
2360663
TOTAL

Proposed and
Agreed Penalty
$ 58.00
20.00
20.00
20.00
20.00
20.00
20.00
$178.00

Both parties agreeing, and the settlement appearing
reasonable and proper, the settlement was approved from the bench.
That approval is hereby affirmed and both proceedings are
DISMISSED. The reasonableness and good faith approach of both
parties is noted.
ORDER
Respondent if it has not previously done so, is ordered to
pay to the Secretary of Labor within 30 days from the date hereof
the sum of $1,658.00.

;?'~...e ct p:;A41!.-c. A.·

Michael A. Lasher, Jr.
Administrative Law Judge

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department of Labor, 1585 Federal Building, 1961 Stout Street, Denver,
CO 80294 (Certified Mail)
Mr. Darrell G. Whitney, Western Rock Products Corporation, 675 N.
Industrial Road, #3, St. George, UT 84770
(Certified Mail)

/blc

363

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

MAR 13 1986
DISCRIMINATION PROCEEDING

MARTHA PERANDO,
Complainant

v.
METTIKI COAL CORPORATION,
Respondent

:

.
.
.

Docket No. YORK 85-12-D
MSHA case No. MORG CD 85-17

DECISION DENYING MOTION TO DISMISS
Appearances:

Before:

Martha Perando, Deer Park, Maryland, pro se
Lisa B. Rovin, Esq., Crowell & Moring,
Washington, DC on behalf of Respondent.

Judge Melick

This case is before me upon the complaint by Martha
Perando under section 105(c)(3) of the Federal Mine Safety
and Health Act of 1977, 30 u.s.c. § 801 et seq., the "Act,"
alleging discrimination and discharge by the Mettiki Coal
Corporation CMettiki) in violation of section 105{c)(l) of
the Act.
More particularly Ms. Perando has cited five alleged
acts of discrimination culminating in her discharge on
March 27, 1985:
First, I was not advised of my rights as a miner.
Second, I was transferred from the mine sight [sic]
to the lab at a loss of pay. Underground gross
$520.20. Lab gross $383.20. The lab was not any
better. Third, the form 11001 has not been filed
after reporting shortness of breath and heavy
preasher [sic] on my chest. Fourth, I was harassed
due to·filing a compensation claim against Mettiki
Coal, letters of reprimand being placed upon me
without any notice of not doing the work up to the
standards of the company. Fifth, I was terminated
on March 27, 1985 while off work under doctor's
care.
Mettiki subsequently filed a motion to dismiss the complaint on the grounds that it failed to state a claim for
which relief may be granted under section 105(c){l) of the

364

Act.l The motion is deemed in part to be a motion for
summary decision under Commission Rule 64, 29 C.F.R. §
2700.64, and documents submitted in connection with the
motion were supplemented at limited hearings under that Rule.
At those hearings the Complainant withdrew paragraphs 1 and 3
of her complaint and clarified the remaining paragraphs. To
the extent that there is any deviation from her original complaint with respect to paragraphs 2, 4 and S, I consider the
complaint to have been amended by Ms. Perando's testimonial
presentation.
In determining whether the complaint in this case "fails
to state a claim for which relief may be granted under
105(c)(l)" of the Act, the well pleaded material allegations
of the complaint are taken as admitted. Goff v. Youghiogheny
& Ohio Coal Company, 7 FMSHRC 1776 (1985); 2A Moores Federal
Practice i12.oa. A complaint should not be dismissed for
insufficiency unless it appears to a certainty that the Complainant is entitled to no relief under any state of facts
which could be proved in support of a claim. Pleadings are,
moreover, to be liberally construed and mere vagueness or
lack of detail is not grounds for a motion to dismiss. id.
lRection 105(c)(l) of the Act provides as follows:
No person shall discharge or in any manner
discriminate against or cause to be discharged or
cause discrimination against or otherwise interfere with the exercise of the statutory rights of
any miner, representative of miners or applicant
for employment in any coal or other mine subject
to this Act because such miner, representative of
·miners or applicant for employment, has filed or
made a complaint under 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 representative of miners or applicant for employment
has instituted or caused to be instituted any
· proceedings under or related to this Act or has
testified or is about to testify in any such
proceeding, or because of the exercise by such
miner, representative of miners or applicant for
employment on behalf of himself or others of any
statutory right afforded by this Act.

365

Ms. Perando alleges in the second paragraph of her complaint that she suffered unlawful discrimination when she
suffered a loss of pay after being transferred from underground work to laboratory work. She alleges that she
acquired a severe health impairment, industrial bronchitis,
as a result of her underground work at Mettiki and was
informed by her doctors that she should no longer work in the
underground coal mine environment. Ms. Perando maintains
that she informed Mettiki officials that she could no longer
work underground and thereafter was given a lower rate of pay
for work in the laboratory.
I find that these allegations are sufficient under
either of two theories of unlawful discrimination under the
Act. Her loss of pay following transfer could be viewed as
retaliation for "notifying the operator or the operator's
agent • • • of an alleged danger • • • or health violation".
In addition her allegations could support a claim of discriminatory reduction in pay because of a protected work refusal
i.e., the refusal to continue working in the good faith
reasonable belief that to continue working would have been
hazardous. Miller v. FMSHRC, 687 F.2d 194 C7th Cir. 1982);
Robinette v. United Castle Coal Co., 3 FMSHRC 803 Cl981).
Accordingly I find that Perando's complaint in this regard
presents a claim or claims cognizable under the Act.
In reaching this conclusion I have not disregarded
Respondent's argument that the right of transfer without a
loss of pay under section 105(c)(l) is limited to those cases
arising under "a standard published pursuant to section 101"
of the Act i.e., limited to cases where the Secretary has
promulgated specific standards governing the cited health
impairment. However Ms. Perando has not alleged a violation
of those specific "right-to-transfer" provisions. Moreover I
find nothing in the language of section 105(c)(l) or any
Congressional intent that would bar an action based on the
allegations herein under the legal theories cited in the
preceding paragraph. See Atkins Vo Cyprus Mines Corporation,
8 FMSHRC
Docket No. WEST 84-68-M, February 27, 1986
(Judge Morris).
Ms. Perando also alleges in her complaint that she was
harrassed after she filed a workmans compensation claim with
the state of Maryland. That claim was filed on December 17,
1984, and alleged that she contracted industrial bronchitis
while working underground at Mettiki. Ms. Perando alleges
that Mettiki. officials knew of this filing and discriminated
against her by thereafter requiring her to report her absences
on a daily basis one half hour before the beginning of her
work shift even though no·one was present at that time to
receive her calls.

366

She further alleges that because of her inability to
complete these telephone calls in the absence of a responsible company official she was discriminatorily charged with
unexcused absences. She seeks to have all such unexcused
absences expunged from her personnel records. I find that
these allegations are sufficient to set forth a claim of
discrimination based on Ms. Perando's purported notification
to "the operator or the operator's agent • • • of an alleged
danger • • • or health violation". Accordingly these allegations also present a claim cognizable under section 105(c)(l)
of the Act.
Finally Ms. Perando alleges in her complaint that she
was terminated on March 27, 1985, while off work under a
doctor's care. She explained at hearing that what she meant
was that she was discharged because she had a serious medical
condition caused by Mettiki and that she could not and would
not work because of the hazardous health environment presented
in the laboratory and in the underground mine. This complaint may also be construed as an alleged work refusal in
the face of hazardous conditions. See discussion of paragraph two of the complaint, supra. Accordingly, I find that
this allegation also sets forth a claim cognizable under the
Act.
Under the circumstances Mettiki's m9tion to dismiss
filed in this case is denied. This matteLl will accordingly
be set for hearing on the merits.,
\
.
~

V\

\W
J

·~

Gary/ Melick
'Admi'n.istrativ
I

'

.

'

i

·

I \

Distribution:

Law Judge

Ms. Martha Perando, P.O. Box 30121 Leer Par\
(Certified Mail)

V'"'

MD 21550

Lisa B. Rovin, Esq., Crowell, Moring, 1100 Connecticut
Avenue, N.W., Washington, DC 20036 (Certified Mail)
rbg

367

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

March 18, 1986

.: DISCRIMINATION PROCEEDING

SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION CMSHA),
ON BEHALF OF
JOHNNIE LEE JACKSON,
Complainant

Docket No. CENT 86-36-D
MSHA· Case No. MADI 85-17

:

:

.. Rogers No. 2 Mine
.

v.
TURNER BROTHERS, INC.,
Respondent

DECISION AND ORDER DENYING TEMPORARY REINSTATEMENT
Appearances:

Frederick w. Moncrief, Esq., Office of the
Solicitor, U.S. Department of Labor,
Arlington, Virginia, for Complainant;
Robert Petrick, Esq., General Counsel, Mark
Secrest, Assistant General Counsel, Turner
Brothers, Inc., Muskogee, Oklahoma, for
Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns an Application for Temporary
Reinstatement filed by MSHA on January 22, 1986, pursuant to
section 105Cc)(2) of the Federal Mine Safety and Health Act
of 1977, and Commission Rule 29 C.F.R. § 2700.44(a), seeking
the temporary reinstatement of the complainant Johnnie Lee
Jackson to his position of bulldozer operator at the respondent's Rogers No. 2 Mine. MSHA has concluded that the complaint of discrimination filed by Mr. Jackson is not
frivolous. In support of this conclusion, MSHA included an
affidavit executed by Michael Yanak, Jr., Technical
Compliance specialist, Office of Technical Compliance and
Investigation, MSHA, Arlington, Virginia, a copy of the complainant's complaint executed September 23, 1985, and a prior
statement executed by him on September 18, 1985.

368

The respondent filed a response to the request for temporary reinstatement on January 28, 1986, and requested a
hearing pursuant to the Court's decision in Southern Ohio
Coal Company, et al., v. Donovan et al., 774 F.2d 693
(6th cir. 1985). A hearing was convened in Muskogee,
Oklahoma, on February 5, 1986, and the parties appeared and
participated fully therein.
Issue
The issue presented in this proceeding is whether or not
the complainant is entitled to temporary reintatement pending
the adjudication of the merits of his claim that he was unlawfully discharged for making safety complaints to mine
management.
MSHA's Testimony and Evidence
Complainant Johnnie Lee Jackson testified that he was
discharged by the respondent on September 9, 1985. At the
time of his discharge he was employed as a D-10 bulldozer
operator, and he had been employed by the respondent for
4-1/2 years. He stated that he had operated the bulldozer
for approximately a year and a half and that he has 10 years
of experience as a bulldozer operator (Tr. 25-26).
Mr. Jackson stated that he believed he was discharged
because the respondent wanted to get rid of him for making
safety complaints about his bulldozer. He stated that he was
discharged by mine superintendent Ronald Sisney, and he
asserted that Mr. Sisney gave him no reason for the discharge.
Mr. Sisney simply told him that Robert Turner, the mine owner
told him to fire him and that if he didn't, Mr. Turner would
fire Mr. Sisney (Tr. 27-28).
Mr. Jackson stated that immediately prior to his discharge the left wall of the rock overburden which had been
shot caved in on his bulldozer and came through the door of
his machine. He was in the process of "slot pushing" the
overburden with his machine. The overburden was being pushed
into the pit and he was pushing or cutting 22 foot wide cuts
while taking the overburden down to the coal layer. He
described the procedure and the work being performed immediately prior to the accident.
Mr. Jackson stated that after the material caved in on
his machine he had to climb over the rock in order to get out
of his machine. After getting out of his machine, he waited
for approximately 10 minutes, and mine operator Robert Turner
was the first person to appear at the scene (Tr. 29-36).

369

Mr. Jackson stated that immediately before the slide, he
had backed up his machine to the highwall and put the blade
down. He then observed some movement of rocks and pebbles on
the 45 to 50 foot highwall and knew that the wall was going
to slide in on him. He pulled up his blade and started to
move out, but ~ portion of the wall slid and fell in on the
left side of
3 machine.
A large rock came through the left
door of the 1 .hine, and other rocks landed on the machine at
the left tra . and hood, and one rock came through the window
on the driv• 's side of the machine. He climbed out and over
the rock f
m the left side of the machine. He could not get
out of t 1
right side because the right door latch would not
work ar
.e could not get the door open (Tr. 38).
Mr. Jackson stated that the right door of his machine
could not be opened, and he asserted that it had been in this
condition for "a couple of weeks." He stated that he had
complained about the condition of the door daily to Mr. Sisney
and to the dirt foreman, Terry Beck. When he complained· to
Mr. Sisney, Mr. Sisney simply told him to use the left door.
Mr. Jackson believed that the condition of the door was unsafe
because he could be trapped in the machine in.the event of an
emergency (Tr. 39-41).
Mr. Jackson described how he got out of his machine after
the rock slide, and he stated that he sustained injuries to
the lower right side of his back and to his neck between the
shoulder blades, and that glass got into his eyes (Tr. 42).
He received medical treatment for his injuries, and a doctor
advised him that he had a 10 percent disability because of his
injuries (Tr. 43).
Mr. Jackson stated that the accident was not avoidable,
and that while in his machine he was watching the highwall,
which was his normal practice. He stated that the highwall
"looked good" prior to the accident, and "it looked like a
good solid wall" (Tr. 44). In his opinion, there was nothing
he could have done to foresee the accident, and he confirmed
that it had never happened to him in the past.
Mr. Jackson stated that he was aware of the fact that
the respondent has fired -0ther employees for causing accidents and for being involved in accidents which they did not
cause. He was also aware of individuals wh0 have commented
that they were either involved in accidents or caused accidents but were not fired (Tr. 46). He has never seen any
written company policy stating that causing or creating an
accident would result in a discharge (Tr. 47).

370

Mr. Jackson denied that he did anything to cause the
rock to fall on his machine, and he was not aware that the
respondent made an investigation of .the accident (Tr. 48).
However, he was told that the machine door glass was knocked
out, a precleaner breather knocked off, and that the .door
frame was bent. He was told that the machine was out of
service for about an hour and a half or two hours (Tr. 49).
Mr. Jackson stated that he constantly complained about
the slick tracks on his machine, but he indicated that any
safety concern over this condition would depend on where the
machine was operating. The slick tracks would be a safety
problem if the machine were operating on a hill because there
would be no tractic>n. However, while "slot pushing 11 on level
ground, the slick tracks would not present a safety hazard.
He operated his machine with slick tracks for approximately a
month and a half, but the respondent took care of the problem
and replaced the tracks. The tracks on his machine were
replaced approximately 2 or 3 weeks before the accident -(Tr.
49-53).
Mr. Jackson stated that he also constantly complained
about the rear-view mirrors being knocked off of the end-dump
machine he was operating (Tr. 54). He confirmed that the
mirrors are knocked off trucks at least once a month by the
end loaders, and he conceded that this was 11 normal wear and
tear" (Tr. 56). He confirmed that the respondent eventually
would replace the mirrors, but only after his repeated
complaints (Tr. 58).
Mr. Jackson confirmed that he knew he had a right to
refuse to operate unsafe equipment, and he conceded that he
would operate a piece of equipment which he knew to be unsafe
because he had to work to support his family.
He also confirmed that while he never refused to operate a piece of
equipment which lacked a rear view mirror, he engaged in
heated arguments over the condition. He conceded that on one
occasion a foreman took a truck out of service until the rear
view mirrow was replaced (Tr. 60).
Mr. Jackson stated that he also complained about the
D-clutch brakes on the 992 loaders, but that "nobody ever
seemed to care whether they was working right or not." He
believed that he would have been fired had he refused to operate equipment which he considered to be unsafe because
"there's too many people out there that would run it" (Tr.
6 0).

371

On cross-examination, Mr. Jackson stated that he is
physically able to go back to work. He confirmed that he
sustained injuries to his back, side, and his neck as a
result of the accident. He denied-that he has any permanent
eye impairment, but confirmed that he had to see a doctor to
remove glass from his eye. He also confirmed that when he
returned to the mine to pick up his pay checks he did not
inform Mr. Sisney, Mr. Beck, or Mr. Turner that he had
suffered any injuries as a result of the accident (Tr. 62).
Mr. Jackson stated that he was not presently experiencing any discomfort to his neck, back, or side as a result of
his injuries. He confirmed that he did suffer back and eye
injuries as a result of the accident. He also confirmed that
he has filed a workmen's compensation claim because of ear
damage "because of the overall period of running the machinery." He stated that his doctor advised him that his hearing
is being impaired because of the large machinery noise to
which he is exposed. When asked whether he will continu·e to
be exposed to loud noise if he operated bulldozers and heavy
equipment, he responded "that's what I do for a living" (Tr.
64). He also stated that his doctor advised him to get
better ear protection. He conceded that he "sometimes" wore
ear protection but could not remember whether he was wearing
earplugs while operating his machine at the time of the
accident (Tr. 65).
Mr. Jackson denied that he was ever stopped in the operation of his equipment by his fcreman or supervisor and told
to wear his hard hat or to cease operating the machine with
his doo'rs open. He admitted that he was told to wear his
seat belt, and to wear his hard hat while on the job CTr.
6 6)

0

Respondent's counsel produced a medical report from
Mr. Jackson's doctor dated November 21, 1985, stating that
Mr. Jackson has a 10 percent partial disability and that he
is released from treatment. Counsel pointed out that the
report does not state that Mr. Jackson is physically able to
go back to work, and in fact states that "he will probably
experience chronic reoccurring symptoms" (Tr. 71, exhibit
R-3), and Mr. Jackson acknowledged the report (Tr. 75).
Respondent's counsel produced a state workmen's compensation claim filed by Mr. Jackson on September 12, 1985, based
on his back and eye injuries, and "nerves and ulcer" conditions, and Mr. Jackson acknowledged that the claim is still
pending and that he is represented by an attorney in that
matter (Tr. 72-73; exhibit R-1).

372

Respondent's counsel produced a state workmen's compensation claim filed January 10, 1986, filed by Mr. Jackson claiming a hearing loss as a result of working for the respondent,
and that he will continue to do so. Mr. Jackson acknowledged
that he filed it (Tr. 74; exhibit R-2).
MSHA's counsel produced a February 3, 1986, statement
from Mr. Jackson's doctor certifying that he has recovered
sufficiently to be able to return to regular work without
restrictions and by agreement of the parties it was made a
part of the record as exhibit RX-4 (Tr. 76-78).
Mr. Jackson explained the "slot dozing" procedures he
followed while operating his bulldozer, and he stated that he
would not have been there if the highwall appeared unsafe.
He also explained the condition of the wall as it appeared to
him before the accident occurred (Tr. 78-83).
Mr. Jackson confirmed that Mr. Sisney, Mr. Beck, and
Mr. Turner were the only individuals present during the
period immediately after the accident and his.discharge, and
that none of them gave him any verbal reasons for his
termination (Tr. 84).
Mr. Jackson stated that he was positive that his prior
complaints concerning the right door of the D-10 bulldozer
being inoperable for 2 weeks referred to the same bulldozer
he was operating at the time of the accident. He denied that
Mr. Sisney exited from the right door of the bulldozer after
retrieving and giving him his personal belongings from the
bulldozer involved in the accident. He claimed that
Mr. Sisney exited out over the top of the rock, and that
Mr. Sisney tried to get in through the right door but could
not (Tr. 85).
Mr. Jackson stated that he previously operated bulldozer
817, which was an older machine, but was subsequently given a
new dozer 529 approximately ·a month or a month and a half
prior to the accident. He confirmed that the new machine had
been completely rebuilt and that new tracks were installed
approximately 2 to 3 weeks prior to the accident (Tr. 86).
Mr. Jackson stated that the bulldozer he was operating
at the time of the accident was completely enclosed with
glass, had a center mirror, and had a seat which enabled him
to see to the front, back, and side (Tr. 87).

373

Mr. Jackson acknowledged his statement to MSHA, made on
September 18, 1985, and he confirmed that no one from mine
management stated that he was being.fired for making safety
complaints (Tr. 88). When asked why this statement does not
include an allegation that he was fired for making safety
complaints, Mr. Jackson responded as follows (Tr. 89-90):
THE WITNESS: No.
I always knew they wanted
to fire me because I complained too much.
THE COURT: Well, if the accident hadn't
happened, would they have fired you?
THE WITNESS:

First chance they got.

THE COURT: You mean to tell me that for four
and a half years they couldn't find an excuse
to fire you if they wanted to fire you?
THE WITNESS:
THE COURT:
THE WITNESS:

No, they could have fired me.
But they didn't.
No, they didn't.

THE COURT: You say they were using this as
some kind of an excuse, the accident as some
kind of an excuse?
THE WITNESS:

I would say so.

Mr. Jackson confirmed that he had an ulcer condition
prior to his employment with the respondent, and he acknowledged that he missed some work as a result of this condition,
but continued his employment with the respondent (Tr. 91).
He also acknowledged that he had some financial problems and
that the respondent loaned him money to assist him in resolving these problems and kept him employed regardless of garnishment and tax levies filed against him CTr. 91). He also
acknowledged that when he requested to work overtime, the
respondent allowed him to do so CTr. 91).
In response to further questions, Mr. Jackson identified
exhibits C-1 and C-2 as releases from the doctors who treated
his back and neck injuries and his ulcer condition indicating
that he was able to return to work. He confirmed that he
obtained the statements on February 3, 1986, prior to the
hearing, and that he did so at the request of MSHA's counsel
(Tr. 93). He denied that any doctor has advised him that he

374

is incapable of performing the job of bulldozer operator, and
confirmed that he discussed the matter with two doctors treating him for his hearing condition. .He stated that these doctors advised him that he was able to return to work but
advised him to obtain better hearing protection {Tr. 94)o
Mr. Jackson stated that the respondent provided him with
earplugs, but that they disintegrated when they are washedv
and that he was unable to get new earplugs every day because
they were not available (Tr. 95}.
When asked to explain why he omitted any reference to
slick bulldozer tracks when he filed his two prior statements
with MSHA, Mr. Jackson responded "I just forgot about it•u
(Tr. 98). He also stated that he complained about other
matters, but did not include them in his prior statements.
He conceded that when he complained about the slick tracks
and rear-view mirrors, the respondent corrected the conditions
(Tr. 99).
In response to further questions concerning his termination and safety ·complaints, Mr. Jackson stated as follows
(Tr. 101-106):
THE COURT: Well, was it the company's position that it was your fault?
THE WITNESS: was it the company's position to
say it was my fault?
THE COURT: Yes. This accident, when the
rocks came in on your dozer, did the company
take the position that you were the one that
put yourself in that situation and that you
were the one that could have avoided the accident but you didn't avoid it and that, therefore, that's what they were firing you for.
THE WITNESS:
I guess that's probably the way
they looked at it.
THE

COURT~

And no one told you that?

THE WITNESS: No, no one told me that.
mean, no one, no, they didn't.

I

THE COURT: The gentleman that said that you
were fired, Ron Sisney, didn't he tell you why
he was firing you?

375

THE WITNESS:
No. Ron Sisney said -- I asked
him, I said, "Why are you firing me?" He
said, "Rob told me to either .fire you or he's
going to fire me."
THE COURT:
THE WITNESS:
answered me.

You didn't ask why?
Yeah, I asked why, but nobody

THE COURT: Did Mr. Turner talk to you at the
time you were fired?
THE WITNESS: At the time I was fired, no. He
talked to me later on, up at the pickup. Ron
took me to my car probably -- Rob followed us
up there, and I talked to him up there.
THE COURT: Did you ask Mr. Turner then why
you were being fired?
THE WITNESS:
I asked him for another chance.
I was wanting my job back.
I knew they had
done fired me.
THE COURT: But nothing came up during that
conversation that would give you any idea as
to why they fired you?
THE WITNESS: No. They done said they fired
me, and I was begging for my job back, is what
I was doing.
THE COURT: Do you have any idea why they
fired you? What did you believe? What did
you speculate? You must have had -- something
must have gone through your mind as to "why
they are doing this to me."
THE WITNESS:
THE COURT:

They wanted to get rid of me.
For what reason?

THE WITNESS: Cause I complained a lot, complained a lot, and it looked like the dozer
was tore up, I guess you could say.
I really
can't say, you know.
It's my opinion.

376

*

*

*

*

*

*

*

THE COURT: Did you ever see any MSHA inspectors out at the Turner proper~y, mine inspectors doing inspections?
THE WITNESS:
Inspectors, yes.
I've seen a
number of inspectors out there. As far as
knowing whether they were MSHA and all this, I
really don't know.
THE COURT: Did you ever complain to any MSHA
inspectors about any safety complaints? Ever
make any complaints to them?
THE WITNESS:

*

*

No.

*

*

*

*

*

THE COURT: Okay. Had you ever had any problems at Turner Brothers before during your
employment; ever received any warnings, reprimands, or anything like that?
THE WITNESS:
no, sir.

Never received no reprimands,

THE COURT: Do you know any other employees at
Turner Brothers that have ever been fired for
making complaints?
THE WITNESS:

No, sir.

Mro Jackson stated that his ulcer condition which caused
him to miss 4 days of work occurred a year and a half ago,
and that his financial difficulties took place approximately
a year ago (Tr. 107).
Mr. Jackson stated that his September 18, 1985, statement to MSHA contains his signature, but that he did not
write it out. He stated that he could not remember who wrote
it out (Tr. 110), but respondent's counsel asserted that he
was informed by MSHA's counsel that Mr. Jackson's wife wrote
out the statement (Tr. 122}.
Mr. Jackson stated that he has not been employed since
his discharge, and that his present source of income consists
of $122 a month from the Veterans' administration. He confirmed that he has received a $1,700 payment on his 10 perc_e_nt

377

disability claim, and respondent's counsel confirmed that the
respondent made the payment to Mr. Jackson and that the workmen's compensation carrier will be billed for the payment.
Counsel also confirmed that the payment was made pursuant to
the workmen's Compensation Court claim for temporary total
disability. The question of permanent disability compensation
is still pending. The temporary benefits are in connection
with Mr. Jackson's back and eye injuries. Mr. Jackson confirmed that he is in contact with his lawyers regarding these
claims, and respondent's counsel stated that he is still awaiting medical evaluations from Mr. Jacks·on' s attorney regarding
his loss of hearing condition and that the matter will be
heard in court within the next 3 or 4 weeks (Tr. 246-249).
Allen G. Howell testified that he is an MSHA District 10
senior special investigator, and he confirmed that he conducted
an investigation of Mr. Jackson's complaint after obtaining his
prior two statements on approximately September 28, 1985.
Mr. Howell stated that he interviewed four complainant witnesses, three respondent witnesses, and three doctors. He identified the respondent's witnesses-as Mr. Turner, Mr. Beck, and
Mr. Sisney (Tr. ·129-131). Mr. Howell stated as follows with
respect to the result of his interviews, (Tr. 131-133):
Q.

Whom did you interview for the respondent?

A. I interviewed Mr. Turner, Mr. Beck, and
Mr. Sisney.
Were you present this morning for
Mr. Jackson 1 s testimony?

Q.

A.

Yes, I was.

Q. Did you hear him testify that he had been
fired for making safety complaints?
A.

Yes, I did.

Q. Did he tell you that he had been fired for
making safety complaints?
A.

Yes, he did.

Q. In the course of your investigation, did
you uncover any evidence to support the allegation that he had made safety complaints?

A.

Yes, I did.

378

Q. More specifically, did any of respondent's
witnesses concur in his claim to have made
safety complaints?
A.

Yes, they did.

Q.

would you tell us what they said?

A.
There was some inconsistency but, basically, that Mr. Jackson had made·safety complaints on occasion to management.
Some
people said -- one of the statements was "a
few times , " and another one was 11 constantly. 11
One of the statement was, too, that most of
the complaints were founded, that there was a
legitimate complaint.
The other one was that
75 to 80 percent of the time his complaints
was not founded, that he just didn't want to
work on the machine.
A.
Did you find support among the complainant's witnesses for the claimed safety
complaints?

A.

Yes, I did.

And, at (Tr. 136-139):
Q.
What was the reason stated for the discharge of Mr. Jackson?
Ao

By who?

Q.

By the respondent.

A.

The accident.

Q. And what specifically, with respect to the
accident, was the basis for the discharge?
A.
The respondent contends that if anyone at
the mines is involved in an accident which
causes property damage to their equipment
and/or delay, that that person would be
discharged.

*

*

*

*

379

*

*

Q.
CBy Mr. Moncrief) Now, was it simply the
fact that Mr. Jackson was involved in an
accident?
A. That he caused damage to the machines.
It
may be any accident. I'm saying that the conclusion I drawed from the interviews was that,
if a person was involved in an accident that
damaged the company's property or it was his
fault, that the person was discharged.

Q.

That's your conclusion.

A. That's my conclusion.
thought I was asked.

That's what I

Q. Now, you mentioned -- well, possibly you
were.
I should be more careful. You mentioned the matter of fault.
Were you told -well, what were you told specifically by the
three members of mine management was the company policy with respect to property damage?

A.

I can't say specifically. I can tell you
in general. Without reading their statements,
I wouldn't want to try to quote anyone.

Q. Did it require culpability or negligence
or fault?
A Yesv that would be one of their guidelines,
in my opinion.

Q. Did anyone say that simply being involved
in an accident would be enough, anyone from
management?

A.

I don't think in that words, no.

Q. Okay. This was stated to you as a policy,
did you say?
A.

Right.

Q. To the best of your knowledge, was this
policy ever reduced to writing?
MR. PETRICK:
not.

I will so stipulate that it was

380

THE COURT:

All right.

Q.
(By Mr. Moncrief) It's b~en stipulated
that there was no written statement of this
policy. Can you testify from your interview
with the three men that you have cited,
whether their statements of this policy were
consistent?
A.

Yes.

It was.

Q.

The statement was consistent?

A. Are we talking about the respondent's
witnesses?
Q.

Yes.

A. Yes, their statements in regards to the
policy for discharge, as far.as their statements was consistent, that if the person. was
involved in an accident that they felt was his
fault and was avoidable, it would entail a
discharge.
With regard to the results of his investigation concerning the accident, Mr. Howell testified at follows (Tr.
144-147).

Q. Okay. Did you question any of these witnesses as to the cause of the accident?
A.

Yes, I did.

Q. Did you get an understanding as to what
caused the accident?
A. From the complainant's witnesses I've
talked to, there was no abnormal mining conditions at the mines. They hadn't had any real
problems with mining in that area. There was
no damaged high walls or unsafe areas that
anybody was aware of, and the mining was proceeding in a normal manner at the time the
accident occurred.

381

Q. Did you find from these witnesses any -or these individuals, did you find any indication that the fall was the result of
Mr. Jackson's negligence?
A.

No. To the contrary, everyone said that
the complainant's witnesses all stated that
they didn't think that he could have been
aware of it prior to it falling.

Q. What was the version of the accident given
you by the respondent's witnesses?
A. That Mr. Jackson was operating in the
manner in which he would normally be operating.
I guess to elaborate on both their statements
of management is that the responsibility is up
to the operator to ensure the security of the
machine and his safety while in the slot.
It's his judgment to do that. On the other
side when talking to the complainant's witnesses, the thing that I based my conclusions
on was as to whether or not they was observing
anything unusual and had taken any unusual,
any extra steps, and they all stated that they
hadn't, but then Mr. Jackson was the only one
in that slot.

Q. Did any of the people you spoke to for the
respondent assess the blame for the accident?
Could you rephrase that?
understando

Ao

I

didn't really

Did anyone say that Mr. Jackson was at
fault in the accident that occurred?

Qo

Yes. Are you talking about the respondent's witnesses?

Ao

Qo

Yes.

P.H

Yes.

Q.

What did they say?

A.
I think that -- not in regards to the accident.
I think the main contention of Mr. Beck
was that he attempted to move the dozer after

382

the rock had fallen on it, causing further
damage; and the contention of Mr. Turner and
Mr. Sisney is that he should have been more
careful in observance of the )ligh wall in the
mining area to prevent an accident before it
occurred.

Q. Had any of the respondent's witnesses
observed the accident?
A.

No, one was an eye witness to the accident.

Q. {By Mr. Moncrief) Who fired Mr. Jacksonv
according to your investigation?
A.

Mr. Sisney.

Q. Okay. Do you know what knowledge he had
when he made the decision, or announced the
decision to fire Mr. Jackson, with respect to
the accident and its cause?
A. Mr. Sisney said it was his decision. He
told Mr. Jackson when he was taking him back
to his vehicle in the truck. Conversations
other than that was -- I would rather read a
quote or let them tell theirself.

Q. What I'm asking you is: did he state what
his decision to fire Mr. Jackson was based on?
The fact that he had an accident that had
caused damage to the machinev and it was avoiaablep it could have been an avoidable accident.

Ao

On cross-examination, Mr. Howell identified the statements he took from Mr. Beck, Mr. Sisney, and Mr. Turner during his investigation of the complaint (Exhibits R-6 through
R-8)" Mro Howell confirmed that he did not ask for my information from the respondent regarding any employees who were
negligent and involved in accidents but were still employed
by the respondent (Tr. 178).
He also confirmed that the
respondent had no knowledge of Mr. Jackson 1 s injuries until
after he returned to the mine after the accident and so
informed management (Tr. 181).

383

Respondent's Testimony and Evidence
Joseph Haberland testified that he is employed by the
respondent as a D-10 bulldozer operator, and he confirmed
that in August and September 1985, he operated D-10 dozer No.
529. He stated that the machine had been out of service due
to a fire, but that it was completely rebuilt and assigned to
him. He operated the dozer on a 4-day, 12-hour a day shift,
and Mr. Jackson would operate it for the next 4-day shift.
Mr. Haberland stated that he operated the dozer on the
4-day shift immediately before the shift on which Mr. Jackson
was terminated, and that both doors worked properly and he
had no occasion to make any safety complaint concerning the
inability of the right-hand door to be opened and closed. He
confirmed that he operated the machine with the doors open
and that most of the time when he arrived on his shift the
doors were closed (Tr. 207-209).
On cross-examination, Mr. Haberland denied that he ever
told Mr. Jackson that the right door of the machine would not
work, and he denied that he was aware of any MSHA investigation or that he ever spoke with Inspector Howell. He confirmed that Mr. Sisney called him the morning of the hearing
and asked him to come. He also confirmed that Mr. Sisney did
not ask him about the door, and he did not know why he was
asked to appear at the hearing (Tr. 210-212).
Mr. Haberland confirmed that he and Mr. Jackson operated
the same D-10 dozer, but denied Mr. Jackson ever discussed
the condition of the right door with him. He stated that
when he next operated the machine after Mr. Jackson's discharge, the glass was out of the left door, the door was
dented, and the heat shield was bent. However, the right
hand door was still operating properly (Tr. 214-215). He
stated that Mr. Jackson operated the machine with the doors
closed and the air conditioning on, while he operated it with
the doors opened and the doors swing open and latched back
(Tr. 216}.

Robert A. Turner, testified that he is the secretary of
the corporate operator Turner Brothers, Incorporated, and
that he holds a B.S. degree in civil engineering from the
University of Missouri and has worked in construction and
mining all of his life. He explained the "slot dozing"
method of mining used at the mine, including the safety precautions expected of a dozer operator while performing his
duties. He stated that the machine operator has the responsibility to watch and maintain the slopes, and when he is out

384

of his machine he is supposed "to inspect the area and see
that everything is fine" (Tr. 217-221).
Mr. Turner stated that he was- the first person to arrive
at the scene of Mr. Jackson's accident. When he arrived,
Mr. Jackson was standing on the bank waiting for someone to
come by, and Mr. Turner looked at the machine and saw two
rocks that had slid approximately 12 to 15 feet up on the
wachine. Material was under the rocks, and they had fallen
on the machine (Tr. 221-222).
Mr. Turner stated that in his opinion the rocks came off
the slope because it had not been properly maintained, and he
confirmed that "slot dozing 11 has taken place at the mine with
D-10 dozers since 1981. He gave the following reasons for
Mr. Jackson's discharge (Tr. 223-224):

Q. Would you tell us the reason, or reasons,
for the termination of Mr. Jackson?
A. Mr. Jackson was terminated for not doing
his prescribed duties as a D-10 operator. and
that he had to maintain the slopes of his slot
so that material would not fall on him. There
was no evidence that he had ever been up on
top of the slot immediately to the left of him
and tried to maintain or look for rocks to
protect himself.

Q. You mean in the whole time that he was
cutting that slot, he had not been up on top
of there?
A. There was no dozer tracks. There had not
been any work with the dozer to prevent
anything.
Q.

Did you look for those dozer tracks?

A.

Yes.

Q.

You did not observe any?

A.

There was none there.

Q. was there any other reason that Mr. Jackson
was terminated other than what you just said?
A.

No, sir.

385

Q.
Did the question of any safety violations
even come up while you were there?

A.

No.

Q. You did talk with Mr. Jackson at the time,
did you not?
A. He asked me if he could ha.ve another
chance.

Q. Is that the extent of the conversation you
had with him?
A.

And I said that he'd had his chances.

Q.

Any other conversation?

A.

No, sir.

On cross-examination, Mr. Turner stated that when he
was interviewed by Mr. Howell, he did not tell him about the
matters he has testified to in this hearing because Mr. Howell
did not ask. He confirmed that he did not advise Mr. Howell
that Mr. Jackson had caused the damage to the dozer because
Mr. Howell asked specific questions and he answered them.
Mr. Turner denied that he fired Mr. Jackson or ordered him
fired (Tr. 226).
Mr. Turner stated that after Mr. Sisney arrived on the
scene he looked the machine over, took Mr. Jackson's lunch
box out of it, and then took him to his car and fired him
(Tr. 226}. Mr. Turner stated that he did not know whether
Mr. Sisney looked for any dozer tracks on the slopev but that
"he looked the whole area over" {Tr. 227). He also stated as
follows (Tr. 227-228):

Q. So you donit know whether Mr. Sisney saw
what you say is evidence to indicate that
Mr. Jackson had not been maintaining the shot
wall?
A.

Mr. Sisney looked the whole area over.

Q. Do you know whether he looked for the
dozer tracks?
A.

No, sir.

386

Q. But you did not tell Mr. Sisney to fire
Mr. Jackson?
A.

No.

Q. And the way you know that Mr. Jackson was
responsible for the damage to his dozer was
that there were no dozer tracks on the shot
wall, top.
A. And the way the rock was laying on the
dozer, that because of the angle of repose and
the way i·t was up as high as it was on the
dozer, it had to fall out of the face and on
to the dozer.

Q. Has it ever happened that a properly maintained shot wall has fallen?
A.

I wasn't aware of any there.

u.

Does it ever happen?

A. Not if it's properly maintained and the
operator looks for rocks and does his job.

Q. When is it that the operator is supposed
to go up and lay down these tracks on the shot
wall?
A. Well, if he is digging through the area
where -- if you listened to what I said, there
was different stratas of rocks, and there 0 s
one layer in there where this rock came out of
that is normally blocky and hard to get
through, and it is a problem, and if they -when a guy works through that, he should, he
goes by it for two or three hours while working, backing up his slope, maintaining his
slope, and all that, and if he is doing his
job and observing the wall, he should notice
those.
Mr. Turner stated Mr. Jackson had worked the slot most
of the morning prior to the accident for approximately
3 hours, and except for the time that he is out of the
machine,. he is supposed "to keep an eye peeled to the wall"
as he is operating. He would have had to observe the slope

387

wall while operating the machine because in order to bring
the slope down, he had to back by it constantly. Mr. Turner
concluded that Mr. Jackson simply ignored a danger to himself
and his equipment for some signifi~ant period of time (Tr.
230).
In response to further questions, Mr. Turner stated that
Mr. Jackson never complained to him about safety matters, his
equipment being inoperative, or problems with any of his
equipment. He also stated that no complaints by Mr. Jackson
ever came into his attention (Tr. 230).
Mr. Turner stated that he had previously observed
Mr. Jackson operating his dozer, but that he was not his
supervisor. Mr. Sisney supervised Mr. Jackson and Mr. Sisney
advised him that he had to constantly motivate Mr. Jackson
and had to remind him to use his seat belts, and to operate
the machine properly while stacking materials with the dozer
(Tr. 231).
Mr. Turner stated that his company policy calls for the
immediate termination of an employee who causes an accident
resulting in damage or injuries. An employee not at fault
would not be terminated. The policy is verbally communicated
to employees and it is not in writing or in the form of
policy directives. He confirmed that employees are trained
according to MSHA regulations. Equipment operators are constantly trained by company superintendents and foremen, and
they are expected to do what they are trained to do (Tr. 232).
Mr. Turner stated that his company has about 300 employees" Payroll and training records are maintained at each
mineo He confirmed that Mr. Jackson 1 s discharge was not
reduced to writing, and that employee discharges are not in
wr ing because "we just don't need the paperwork" and "we've
always done things kind of out of the seat of our pocket"
(Tr. 234).
Mr. Turner stated that he believed Mr. Jackson knew
Mr. Sisney discharged him for "tearing up a piece of equipment11 because 11 it didn't take 20 minutes from the time that
we knew that it happened for us to make up our mind and for
Mr. Jackson to be terminated." Mr. Turner stated that
Mr. Sisney fired Mr. Jackson because he is the superintendent
and does the hiring and firing (Tr. 235).
Mr. Turner stated that after arriving at the scene of
the accident and looking around, he concluded that Mr. Jackson
was at fault. After Mr. Sisney arrived, they walked around

388

the machine and discussed the accident in question. He and
Mr. Sisney did not collectively decide that Mr. Jackson was at
fault, and that Mr. Sisney made his ·own judgment in this
regard. Had Mr. Sisney decided not to discharge Mr. Jackson,
Mr. Turner stated "I would have stood behind him" (Tr. 236).
Mr. Turner stated that other employees were fired for
damaging company equipment. He stated that Charles Fraum was
discharged at the Welch Mine for backing a truck into another
truck and that MSHA investigated the matter. Randy Willis
was discharged at the Claremore Mine for backing up a 992
into a pickup, and another employee at Claremore (first name
Darell) was fired for backing a 992 into a truck (Tr. 237).
Ronald L. Sisney testified that he is employed by the
respondent as the superintendent of the Claremore Mine. He
stated that after Mr. Jackson's accident he crawled into the
left side of the machine over the rock to look at the damage
and to remove Mr. Jackson's dinner bucket and water jug.· He
exited the machine through the right door, and while the door
was jammed or hard to open, the door latch was operable (Tr.
237-239).
With regard to Mr. Jackson's termination, Mr. Sisney
stated as follows (Tr. 239-240):

Q. Okay. Now, with regard to the termination
of Mr. Jackson, did you have a conversation
with him before terminating him or at the time
of termination?
A.

Yes 1 I did.

Q.

Where was this?

A.

On top of the high wall behind the dozer.

Q. Did the conversation continue in your
pickup truck?
A.

Yes, it did.

Q. Did you advise Mr. Jackson as to why he
was being terminated?
A.

Yes, I did.

Q. Would you tell us, give us all the reasons
you gave him for terminating him?

389

A. Best I can remember the way I said it was,
I'm firing you because you didn't maintain the
slopes on that cut and let the rock come down
on your tractor.

Q. was there ever any mention of any complaints, safety violations, or anything, at
that time?
A.

Not at that time, no.

Q.

When did you first hear about it?

A.

About the

Q.

Complaint of safety violations.

A.
It was after the investigation, or at the
time of the investigation.

Q.

By Mr. ·Howell?

A.

By Mr. Howell.

Q.
Did the safety violations or the complaints
of Mr. Jackson in whatever manner have anything
to do with his termination?
A.

No, none at all.

Q. Was there any other reason, other than the
fact that you felt at that time that he was
negligent 7 for terminating him?
A. At that particular timev that was the only
reason I terminated him.
In response to further questionsr Mr. Sisney stated that
he could not recall Mr. Jackson ever complaining to him about
the door on his machine.
He confirmed that Mr. Jackson did
complain at different times about safety concerns such as the
lights on his machine or cracked glass. Mr. Sisney stated
that he acknowledged the complaints and tried to fix the
items in question. Although he received a lot of complaints
from Mr. Jackson, as well as others, he did not consider him
to be a chronic s ety complainer. Mr. Sisney considered
most of Mr. Jackson's complaints to be legitimate, while some
were not. Mr. Sisney denied that his decision to discharge

390

Mr. Jackson had anything to do with his safety complaints,
and that he could not remember discussing these complaints
with Mr. Jackson at the time he fired him (Tr. 240-242).
Mr. Sisney could not recall telling Mr. Jackson that if
he didn't fire him, that someone else would have fired him
(Sisney). He also denied that Mr. Turner influenced his decision to fire Mr. Jackson, and he could offer no explanation
as to why the discharge was not reduced to writing CTr. 242).
Mr. Sisney stated that he viewed the accident area about
an hour and a half prior to the accident, and he concluded
that the rock which struck the machine should have been
removed while Mr~ Jackson was cutting the slot. He agreed
that Mr. Jackson could have concluded that the rock would not
dislodge. Mr. Jackson simply told him that the rock "just
fell in, just slid in" (Tr. 245). Mr. Sisney believed the
accident could have been prevented.
The parties stipulated that the prior statements made by
Mr. Sisney, Mr. Turner, and Mr. Beck to MSHA investigator
Howell during his investigation may be incorporated by reference in this proceeding (Tr. 245; exhibit R-6 through R-8).
Arguments Presented by the Parties
During the course of the hearing, MSHA's counsel contended that Mr. Jackson was discharged because of his safety
complaints, and that the respondent reacted and retaliated
against him by discharging him. With regard to MSHA's
support for its application for temporary reinstatement,
counsel asserted that Mr. Yanak's supporting affidavit was
based on the facts then known to the Secretary, including a
summary of the statements made to special investigator Howell
during his investigation of the complaint (Tr. 14-16).
Respondent's counsel took the position that Mr. Jackson
was not discharged for making safety complaints, and that he
was discharged for causing an accident which was his fault.
Counsel asserted that the accident resulted in property
damage to the respondent's equipment, and that the discharge
was consistent with company policy (Tr. 16-17).
MSHA's counsel asserted that in order to support
Mr. Jackson's temporary reinstatement, all that is required
to be established is that the complaint has merit, and he
does not have to establish that he will ultimately prevail on
the merits of his complaint (Tr. 17).

391

Respondent's counsel agreed that the complainant must
establish that his claim of discrimination has merit. However, counsel further asserted that.any temporary reinstatement order must be in accord with ~he standard provided under
the Federal Rules of Civil Procedures for temporary court
orders issued pursuant to Federal Statutes. Counsel suggested
that the standard to be applied in this case is whether or not
the complainant can establish that there is a reasonable likelihood of success on the merits of his case (Tr. 19).
MSHA's counsel disagreed with the respondent's argument,
and he asserted that the term "frivously brought" should be
applied in the context of whether the complainant acted
frivously in filing his complaint and not whether the complaint itself is frivolous.
In the instant case, counsel
asserted that the complaint has a degree of merit which establishes that it is not frivolous, but well justified and
meritorious (Tr. 22-23).
At the close of MSHA's case, the respondent moved that
the application for temporary reinstatement be denied on the
ground that the·evidence presented in support of the application is insufficient to support the complainant's temporary
reinstatement (Tr. 187).
Respondent also asserted that there are compelling
medical reasons for denying the complainant's temporary reinstatement. Counsel pointed out that Mr. Jackson has not
demonstrated that he is physically fit and able to perform
his job without subjecting the respondent to liability for
additional and future injuries with respect to Mr. Jackson's
hearing situation and his back, neck, body, and stomach conditions. Counsel asserted that Mr. Jackson's doctor has rated
him 10 percent disabled and has also indicated in his work
release report that Mr. Jackson is subject to injury in some
greater degree than would normally be expected of an employee
(Tr. 188). He also confirmed that Mr. Jackson's claim for
permanent disability is still pending.
MSHA's counsel conceded Mr. Jackson's 10 percent permanent disability, but asserted that with the exception of his
ear doctor, his other doctors have released him for work without limitation. Counsel also conceded that Mr. Jackson's
disability may subject him to pain from time to time, but
asserted that it would not incapacitate him or more likely
subject him to injury (Tr. 190).
In response to the motion to dismiss, MSHA's counsel
asserted that the testimony of Mr. Jackson and Inspector

392

Howell establish that Mr. Jackson was a frequent complainer
about safety matters, and that he specifically complained
about the unsafe condition of the right door of his bulldozer
everyday for a week before his termination.
MSHA's counsel asserted that the facts related to the
rock fall demonstrate that this was an unsafe condition and
that Mr. Jackson was fired immediately following the accident
by individuals who saw or knew anything but that there was a
bulldozer with rocks on it.
MSHA's counsel did not dispute the fact that the respondent has a policy that culpable employees will be discharged
in the event of property damage. However, counsel contended
that this policy is followed as a matter of convenience in
order to permit the respondent to terminate employees when
there is only an inference of negligence on the employee's
part. Counsel argued that the respondent has stated no basis
for the determination that Mr. Jackson had any culpability in
the damage to the bulldozer.
MSHA's counsel conceded that Mr. Jackson has a 10 percent
disability as a result of the injuries sustained by the accident. However, counsel took the position that the fact that
Mr. Jackson may have state workmen's compensation claims pending in connection with his loss of hearing, and certain back
and eye injuries stemming from the accident, this is no basis
for concluding that he is not physically able to return to the
work he was performing prior to his discharge (Tr. 67-69).
However, counsel stated that "the question of ear protection
and the like is something that may be worth delving into" (Tr.
67). He then suggested that Mr. Jackson may be willing to go
back to work wearing ear protection, and assuming he were to
"undertake whatever risk is involved, perhaps he should be
allowed to do so" (Tr. 68). Counsel also asserted that
"Mr. Jackson didn't say he had no compunction about operating
in unsafe conditions, equipment, and was quite willing to do
so" (Tr. 69).
MSHA's counsel recognized that in the event the respondent can establish that it would have fired Mr. Jackson based
on a reasonable belief that his negligence caused the accident which resulted in damage to the bulldozer, regardless of
any protected activity, the issue of supervening motivation
would have to be resolved. However, counsel maintained that
the evidence produced here does not provide a basis for concluding that Mr. Jackson was culpable, and that MSBA has met
its burden (Tr. 190-193). Counsel suggested that its possible that the respondent's conclusion that Mr. Jackson was

393

culpable may simply be a convenient basis on which to discharge a person who has made substantial safety complaints
and who, operating a piece of equipment which was unsafe, was
almost killed on company property JTr. 195).
The respondent's motion to dismiss was taken under
advisement (Tr. 197).
Findings and Conclusions
Although I cannot conclude from all of the evidence and
testimony adduced during the reinstatement hearing that
Mr. Jackson's claim of discrimination is frivolous or totally
lacking in merit, I do conclude and find that the respondent
has established that there is a serious question concerning
Mr. Jackson's physical condition and ability to perform the
duties of a bulldozer operator if he were to be temporarily
reinstated pending the adjudication of the merits of his
claim.
I also conclude and find from the documentary ev.idence presented by the respondent that the temporary reinstatement of Mr. Jackson at this time will place him in a
working environment where there is a real potential for
further injury and exacerbation of his prior injuries and
claimed existing loss of hearing.
In support of its argument that Mr. Jackson is physically unable to fully perform his job, the respondent has
presented documentary evidence consisting of doctor's statements and reports, and compensation claims filed by
Mr. Jackson before a state workers compensation court.
Mr. Jackson has apparently retained counsel to represent him
in those proceedings, and as of the reinstatement hearing,
the claims were still pending for adjudication. MSHA's evidence to the contrary consists of two recently obtained statements that Mr. Jackson is free to return to work. For the
reasons which follow, I have given greater weight to the
statements produced by the respondent, and little weight to
the "work release" forms produce by MSHA.
I believe it is
obvious that these forms, one of which deals with an ulcer
condition, were obtained in an effort to summarily convince
me that Mr. Jackson is physically able to return to work.
There is no evidence that the doctors who executed the
work releases obtained by Mr. Jackson at the request of MSHA's
counsel a day or so before the reinstatement hearing were even
aware of his claimed loss of hearing due to equipment noise
exposure, and MSHA's counsel conceded that the doctor's were
probably unaware of the condition when they signed the release
statements. A copy of Mr. Jackson's claim filed with the

394

worker's compensation court on January 21, 1986, (exhibit
R-2), a week or so before the hearing, reflects that he suffers from "tennitis or ringing in the ears" as a result of
loud equipment noises.
In response to a question on the claim
form regarding any pre-existing disabilities, Mr. Jackson
answered in the affirmative and indicated that his compensation case for injuries to his "back and various parts of body"
is still pending in court.
One of the work releases dated February 3, 1986, is from
the doctor who treated Mr. Jackson for an ulcer condition,
and a second one is from the chiropractor who treated him for
his neck, shoulder and back injuries. I note that the "return
to work" slip (exhibit C-1) signed by this doctor states that
Mr. Jackson is able to return to work on November 5, 1985,
with no restrictions. This is in direct conflict with this
same doctor's discharge report of November 5, 1985, a copy of
which was filed with the state workers compensation court on
January 14, 1986 {exhibit R-4). That report states in pertinent part as follows:
Mr. Jackson has suffered a severe injury
of the supportive ligaments of the cervical
thoracic spine, which predispose this patient
to reoccuring exacerbation of symptoms and
reiPjury.
* * * Mr. Jackson has remained temporarily and totally disabled for employment
as a result of his injury which occurred on
09-09-85.
In a letter dated November 21, 1985, from the same chiropractor to Mr. Jackson's attorney, the doctor stated in pertinent part as follows:
It is my professional opinion, from the
examination findings, and this patient's severity of symptoms, that he will require periodic
care for the rest of his life as a result of
these injuries. He probably will experience
chronic reoccurring symptoms. * * * Mr. Jackson
has 10 percent permanent impairment of the
whole man as the result of the injuries he sustained on the job on 09-09-85.
The testimony and evidence adduced in this case with
respect to the procedure of "slot dozing" refl.ects that a
dozer operator is constantly maneuvering his machine back and
forth while cutting into the overburden, and the machine is
not always on level ground.
It maneuvers over grades and

395

slopes while controlling the materials, and the operator is
obviously subjected to constant jostling, particularly if his
seat belt is not fastened. In this ·case, the evidence establishes that at the time of the accident. Mr. Jackson was operating his machine alone and was not under observation. As a
matter of fact, after the accident, he had to crawl out of
his machine and wait for someone to arrive on the scene.
Under these circumstances, and given Mr. Jackson's physical
disability and prior injuries, I conclude that temporary reinstatement to his prior job will expose him to a real potential for further injury.
The fact that Mr. Jackson may be willing to assume the
risk of further aggravating his loss of hearing, or to risk
further injury to his back and neck, is no reason to discount
his injuries and disabilities. Aside from Mr. Jackson's physical well being, the respondent has a right to protect itself
against further liability in the event that Mr. Jackson is
reinjured. Simply because Mr. Jackson may be willing to·
place himself in further jeopardy, or is willing to work
under conditions which he knows are unsafe, is no justif ication for granting temporary reinstatement.
Mr. Jackson has candidly admitted that he has in the
past exposed himself to unsafe work conditions, but continµed
to work because of his opinion that he would lose his job if
he did otherwise. Respondent presented testimony that
Mr. Jackson has been cautioned in the past about the use of
seat belts and wearing his hard hat on the job. Under these
circumstances, I believe one may reasonably assume that in
the event Mr. Jackson were to be temporarily reinstated, he
will again take further risks which may lead to disastrous
results. Even if Mr. Jackson did not take such risks, given
his disability and injuries as reflected in the medical documentation adduced during the hearing, the potential for
further injury while operating a bulldozer is real and present and cannot be discounted.
Although I recognize that Mr. Jackson is not presently
gainfully employed, in the event he prevails on the merits of
his discrimination complaint, he will be entitled to be made
whole and to receive back-pay. However, I cannot in good
conscience disregard the consequences which may result from
his temporary reinstatement at this time, nor can I disregard
the attendant potential liability to the respondent for reinstating an employee with known physical conditions or impairments which resulted from injuries suffered in the course of
his prior employment.

396

In view of the foregoing, MSHA's request for the temporary reinstatement of Mr. Jackson IS DENIED. A hearing on the
merits of the discrimination complaint will be docketed in
the near future, and the parties will be notified accordingly.

d/

4~~

4~~ Koutras

Administrative Law Judge

Distribution:
Frederick W. Moncrief, Esq., Office of the Solicitor, U.S.
Department of Labor, 4015 Wilson Boulevard, Arlington, VA
22203 (Certified Mail)
Robert Petrick, Esq., North Highway 69, P.O. box 447,
Muskogee, OK 74402 (Certified Mail)
/f b

397

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

March 19, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. LAKE 85-67-M
A.C. No. 20-00608-05511

v.
Michigan Silica Company
MICHIGAN SILICA COMPANY,
FORMERLY KNOWN AS
OTTAWA SILICA COMPANY,
Respondent
DECISION APPROVING SETTLEMENT
Before:

Judge Koutras
Statement of the Case

This proceeding concerns a civil penalty proposal 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) v seeking a civil penalty assessment in the amount of
$500 for a violation of section 105(c) (1) of the Act. The
respondent contested the alleged violation and proposed civil
penalty, and the case was docketed for a hearing on the merits.
However, the parties have now submitted a proposed settlement
pursuant to 29 C.F.R. § 2700.30, and the respondent has agreed
to pay $250 for the violation in question.
The violation in this case is the result of a discrimination
complaint filed by MSHA against the respondent in 1981. My
decision upholding the complaint was issued on June 3, 1982,
4 FMSHRC 1013, and on appeal it was affirmed by the Commission
at 6 FMSHRC 516 (March 1984). On November 11, 1985, the U.S.
Court of Appeals for the Sixth Circuit affirmed the Commission's
decision that the respondent violated section 105(c) (1) of the
Act, Secretary of Labor v. Michigan Silica Company, Formerly
Known as Ottawa Silica Company, Case No. 84-3859, 6th Cir. (1985).

398

The parties state that they have discussed the agreed upon
settlement, and I have reviewed the pleadings and am familiar
with all of the facts and circumstances since I presided at the
discrimination hearing and adjudicated the merits of that case.
In support
the reduction of the proposed civil penalty in
this case, the parties assert that they wish to settle the matter
in order to avoid the additional expense of litigation.
I note
that the respondent has already incurred great expenses in the
litigation of the case and has paid in excess of $40,000 for back
wages and other benefits to the employee who was ordered reinstated to his job.
After careful and further consideration of this matter, I
conclude and find that the proposed settlement is reasonable and
in the public interest. Accordingly, pursuant to 29 C.F.R.
§ 2700.30, the settlement IS APPROVED, and the petitioner's
motion seeking my approval IS GRANTED.
ORDER
The respond~nt IS ORDERED to pay a civil penalty in the
amount of $250 for the violation in question.
Payment is to be
made to MSHA within thirty (30) days of the date of this decision
and order, and upon receipt of payment, this matter is dismissed.
The hearing scheduled for April 10, 1986, is cancelled.

~~.i~
Administrative 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)
Robert Oren, Vice President, Industrial Relations, Michigan
Silica Company, P.O. Box 577, Ottawa, IL 61350 (Certified Mail)
/fb

399

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

March 21, 1986
SECRETARY OF LABOR,
MINE SAFETY AND HEALTH
ADMINISTRATION (MSHA),
On Behalf of
BARRY L. WEAVER,
Complainant

DISCRIMINATION PROCEEDING

.
.

Docket No. CENT 85-99-D

.
.

v.
ALPINE CONSTRUCTION COMPANY,
Respondent

Alpine No. 4/7 Mine
Jerrett Canyon Project

.

DECISION AND ORDER APPROVING
SETTLEMENT AND DISMISSING PROCEEDING
Before:

Judge Lasher

The parties have reached an agreement in the above
proceeding, the intent of which is to settle all of Complainant's
claims. Pursuant thereto, Respondent, without admitting a
violation, agrees to pay Barry L. Weaver the sum of $3,746.68 as
back wages and interest, Mr. Weaver waives any right to reinstatement and to reapply for employment with Respondent, and
the Secretary waives assessment of a civil penalty.
The s·ettlement appearing reasonable and just in the
premises, the same is approved.
ORDER
Cl) On or before 30 days from the date hereof, Respondent
shall pay Barry L. Weaver the sum of $3,746.68.
(2)

This proceeding is dismissed.
~~

/
.

/

/

/

/./""'/,./~~/~.,,.

7,1'.1::-::~'-1' pt/~~~ ;::;-:::.

Michael A. Lasher, Jr.
Administrative Law Judge

400

Distribution:
Mr. Barry L. Weaver, Route 5, Box 144, McAlester, OK
(Certified Mail)

74501

Jill D. Klamm, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Ed Edmondson, Esq., 416 Court Street, P.O. Box 11, Muskogee, OK
74402-0011
(Certified Mail)
Alpine Construction Company, P.O. Box 339, Stigler, OK
(Certified Mail>
/blc

401

74462

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

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

March 21, 1986
CIVIL PENALTY PROCEEDING
Docket No. CENT 85-123-M
A.C. No. 39-00055-05551 A

v.

Homestake Mine

JOSEPH CRACCO,
Respondent

.

DECISION APPROVING SETTLEMENT
Before:

Judge Morris

This js a civil penalty proceeding initiated by the
petitioner against the respondent pursuant to Section llO(c} of
the Federal Mine Safety and Health Act of 1977, 30 U.S.C.
§ 820(c).
Prior to a hearing, the petitioner filed a motion seeking
approval of a settlement agreement entered into by the parties.
l. The agreement reflects that at all times mentioned
herein respondent was acting as master ropeman and foreman at the
gold mine operated by the Homestake Mining Company in Lead, South
Dakota.
2. On July 25, 1984 MSHA issued Citation 2097234 against
the corporate mine operator alleging a violation of 30 C.F.R.
§ 57.15-5.
Subsequently, the corporate operator paid a civil
penalty of $8,000 for the foregoing violation.
3. Thereafter, MSHA charged respondent with having
knowingly authorized, ordered or carried out the corporate mine
operator's violation as an agent of said operator. A civil
penalt~ of $1,000.00 was propos~d.
4. Subsequently, respondent proposed that the case be
settled for the amount of $750.
5. In mitigation petitioner states that respondent had been
acting as a temporary foreman for only a short period of time.
Under these circumstances and in consideration of the criteria
contained in Section llO(i) of the Act I find that the proposed
settlement is reasonable and in the public interest.

402

Accordingly, I enter the following:
ORDER

1.

The settlement agreement is approved.

2.

The petition to assess a civil penalty is affirmed.

3.

A civil penalty of $750 is assessed.

~~~
hn J.
minis

ris
tive Law Judge

Distribution:

J. Philip Smith, Esq., Office of the Solicitor, U.S. Department
of Labor, 4015 Wilson Boulevard, Arlington, VA
Mail)

22203

(Certified

Robert A. Amundson, Esq., Amundson, Fuller & Delaney, 203 West
Main Street, P.O. Box 898, Lead, SD 57754
(Certified Mail)

/blc

403

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

March 24, 1986

CIVIL PENALTY PROCEEDINGS

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

Docket No. CENT 85-69
A.C. No. 34-01404-03505
Docket No. CENT 85-70
A.C. No. 34-01404-03506

RICHARDS COAL COMPANY,
and
MYLU COAL COMPANY, INC.,
Respondents

Taft No. 1 Mine

SUMMARY DECISIONS AND ORDERS
Before:

Judge Koutras
Statement of the Proceedings

These proceedings concern civil penalty proposals filed by
the petitioner against the respondents 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 in. the amount of $200
for three alleged violations of certain mandatory standards
found in Parts 50, 71, and 77, Title 30, Code of Federal
Regulations.
The proposed civil penalty assessments were mailed to the
respondents by the petitioner on May 28, 1985. However, the
respondents have failed to f
any answers, and subsequent
orders requiring them to answer have been returned by the postal
service as undeliverable.
By letter dated March 13, 1986, petitioner's counsel advised
me that she was informed by the MSHA Subdistrict Off ice in
McAlester,.Oklahoma, that the Mylu Coal Company was the unsuccessful successor of the Richards Coal Company and that the mine
has been abandoned since at least ,July, 1985. Counsel also
advised that all mobile equipment has been removed from the
property and the mine has been placed in a nonproducing status.

404

Discussion
The respondents have failed to answer the proposals for
assessment of civil penalties as required by Commission Rule
29 C.F.R. § 2700.28. ! They have also. failed to respond to the
subsequent orders issued by me and_by Chief Judge Merlin. Under
the circumstances, I conclude and find that the respondents are
in default, and that these proceedings may be disposed of pursuant to the Commission's summary disposition procedures pursuant to 29 C.F.R. § 2700.63.
ORDER
In view of the respondents default, and pursuant to the
provisions of 29 C.F.R. § 2700.63(b), the respondents are jointly
and severally assessed civil penalties for the violations in
question, as follows:
CENT 85-69
Citation No.

Date

30 C.F.R. Section

Assessment

9947:390

11/27/84

71. 802

$ 106

Citation No.

Date

30 C.F.R. Section

Assessment

2218437
2218639

12/19/84
1/7/85

50.30(a)
77.170l(a)

CENT 85-70

$
$

20
74

The respondents ARE ORDERED to pay the civil penalties in
the amounts shown above for the violations in question, and
payment is to be made to MSHA within thirty (30) days of the
date of these decisions and order.

4.~~
~istrative
Law Judge

Distribution:
Jill Klamm, Esq., Office of the Solicitor, U.S. Department of
Labor, 525 Griffin Street, Suite 501, Dallas, TX 75202
(Certified Mail)
Mr. Rick Curry, Officer in Charge of Safety and Health, Mylu
Coal Company, Inc., 1218 Foxcroft Circle No. 7, Muskogee, OK
74401 (Certified Mail)
Mr. Randy Hair, Richards Coal Mine, P.O. Box 2788, Muskogee,
OK 74402 (Certified Mail)

/fr
405

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

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

v.

.:
.
.
.

80204

March 24, 198 6

CIVIL PENALTY PROCEEDING
Docket No. WEST 85-156-M
A.C. No. 02-01398-05502
Reidhead Sand & Rock, Inc.

REIDHEAD SAND & ROCK, INC.,
Respondent
DECISION
Appearances:

Marshall P. Salzman, Esq., Office of the Solicitor,
U.S. Department of Labor, San Francisco,
California,
for Petitioner.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administation, (MSHA), charges respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. § 801 et seg., (the Act).
After notice to the parties, a hearing on the merits took
place in Phoenix, Arizona on January 29, 1986.
Respondent failed to appear at the hearing and further
failed to reply to an order to show cause issued after the
hearing.
Summary of the Case
Gary Day, an MSHA supervisory mine inspector since 1975,
inspected respondent on March 28, 1985 CTr. 3).

·on that occasion he observed that a 16 foot wide roadway, or
ramp, lacked berms or guards. The ramp provides the only access
to a dump hopper1 further, it was elevated on a repose of zero to
five feet <Tr. 5, 8}.
A ten foot wide front-end loader travels the ramp to dump
material into the hopper (Tr. 5). The loader, which weighed
several tons, had a ten foot wide bucket with six foot tires (Tr.
6). The loader travels forward with the bucket elevated, then it
backs down after dumping its load CTr. 7).

406

The foregoing facts caused the inspector to issue Citation
2087473 for a violation of 30 C.F.R. § 56.9022. The cited
regulation provides as follows~
Berms or guards. Berms or guards shall be provided on
the outer bank of elevated roadways.
Inspector Day further observed that there was no handrail to
serve as a guard for the conveyor.
In addition, there was no
emergency stop cord device along this waist high walkway which!
was adjacent to the rollers of the conveyor (Tr. 9, 10}. Various
workers use the walkway to service and inspect the conveyor (Tr.
10) •

The foregoing facts 9aused the inspector to issue Citation
2087474 for a violation of 30 C.F.R. § 56.9007. The cited
regulation provides as follows!
Unguarded conveyors with walkways shall be equipped
with emergency stop devices or cords along their full
length.
Discussion
The facts establish a violation of each regulation.
There.were no berms or guards on the outer edges of the
elevated roadway. Accordingly, the initial citation was properly
issued.
Concerning the second citation: the evidence establishes
that the conveyor along part of its walkway was unguarded. In
addition~ the walkway lacked an emergency stop device or cord.
The citations should be affirmed.
Civil Penalties
The criteria to assess civil penalties is set forth in
Section llO{i) of the Actu now 30 u.s.c. § 820(i). It provides
as follows~
The Commission shall have authority to assess all civil
penalties provided in this Act. In assessing civil monetary
penalties, the Commission shall consider the operator 1 s history
of previous violations, the appropriateness of such penalty to
the size of the business of the operator charged, whether the
operator was negligent, the effect on the operator's ability to
continue in businessc the gravity of the violation, and the
demonstrated good faith of the person charged in attempting to
achieve rapid compliance after notification of a violation.

407

Concerning the foregoing criteria: since it was favorable to
respondent the judge accepted counsel's representation that the
operator's history was relatively good inasmuch as the company
had only two prior citations. In addition, the operator abated
the violative conditions (Tr. 4). The evidence also indicates
that the imposition of a penalty would not impair the operator's
ability to continue in business (Tr. 8). The operator was
negligent since both of the violative conditions were open and
obvious. The gravity of each violation was high since a fatality
could result: however, the inspector indicated that it was
"reasonably unlikely" that an accident would occur.
The Secretary argues that the Commission should not be
bound by MSHA' s characterizations of the violations as non s
Therefore, it is asserted that the automatic twenty dollar
penalty as proposed here is not appropriate (Tr. 13, 14).

& i..:.

I agree that the Commission is not bound by the MSHA formula.
Sellersburg Stone Company v. FMSHRC, 736 F.2d 1147, 1152 C7th
Cir. 1984). However, in this case the evidence indicates the
exposure to the loader operator was minimal. The loader only
traveled 25 to 30 feet to where it dead-ended into the hopper.
In connection with the unguarded conveyor, I note there was a
handrail which served as a guard on a portion of this walkway.
Apparently only a small portion was unguarded.
On balance, I deem that the proposed penalties are
appropriate.
Conclusions of Law
Based on the antire record and the factual findings made in
the narrative portion of this decision, the following conclusions
of law are entered:
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 56.9022 and§ 56.9007.

3. The citations and the proposed civil penalties therefor
should be affirmed.
ORDER
Based on the foregoing facts and conclusions of law I enter
the following order:
1. Citation 2087473 and the proposed penalty of $20 are
affirmed.

408

2. Citation 2087474 and the proposed penalty of $20 are
affirmed.

3. Respondent is ordered to pay to MSHA the sum of $40
within 40 days of the date of this decision.

~~~
hn J.
minist

lS

tive Law Judge

Distribution:
Marshall P. Salzman, Esq., Office of the Solicitor, U.S. Department of Labor, 11071 Federal Building, 450 Golden Gate Avenue,
San Francisco, CA 94102
(Certified Mail)
Reidhead Sand and Rock, Inc., Mr. Jack Zellner, General Manager,
P.O. Box 7, Taylor, AZ 85938
(Certified Mail)
/blc

409

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

20006

March 24, 1986

DISCIPLINARY PROCEEDING

Docket No. D 86-1
DECISION

Appearances:

Timothy W. McAfee, Esq., Norton, Virginia;
James B. Leonard, Esq., Arlington, Virginia
for the Secretary of Labor.

Before:

Judge Merlin

This disciplinary proceeding is before me pursuant to order
of the Commission dated January 8, 1986. A hearing was held on
March 7, 1986.
The matter was initially referred to the Commission pursuant
to Commission Procedural Rule 80, 29 C.F.R. § 2700.80 l/ for

ll

Rule 80 provides in pertinent part:
Standards of conduct; disciplinary proceedings.
(a) Standards of conduct. Individuals practicing
before the Commission shall conform to the standards of
ethical conduct required of practitioners in the courts
of the United Stateso
(b) Grounds. Disciplinary proceedings may be
instituted against anyone who is practicing or has
practiced before the Commission on grounds that he
has engaged in unethical or unprofessional conduct~
or that he has violated any provisions
of the laws and regulations governing practice
before the Commission ••••
000

(c) Procedure. o•• [A] Judge or other person
hgving knowledge of circumstances that may warrant
disciplinary proceedings against an individual who
is practicing or has practiced before the Commission,
shall forward such information, in writing, to the
Commission for action. Whenever in the discretion
of the Commission, by a majority vote of the members
present and voting, the Commission determines that
the circumstances reported to it warrant disciplinary
proceedings, the Commission shall either hold a
hearing and issue a decision or refer the matter to
a Judge for hearing and decision ••••
29 C.F.R. § 2700.80.
410

disciplinary consideration by Administrative Law Judge
George A. Koutras due to the failure of attorney
Timothy W. McAfee to appear at a scheduled hearing on October 3,
1985, in a civil penalty proceeding under the Federal Mine Safety
and Health Act of 1977.
On July 10, 1985 Judge Koutras issued a Notice of Hearing
in Secretary of Labor v. White Oak Coal Company, (Docket No. VA
85-21) which was a civil penalty proceeding under the Federal
Mine Safety and Health Act of 1977
The notice concluded with
the following instruction:
Any proposed settlements filed later than the
ten-day period noted above will be rejected and the
parties will be expect~d to appear at the scheduled
trial of the case.
Mr. McAfee was not engaged as counsel for the operator until
after July 10. But he was in the case on August 12 when he sent
Judge Koutras the operator s response to the Secretary s Request
for Admissions.
1

1

On August 30 Mr. McAfee and Mr. Mark R. Malecki, the Solicitor representing the Secretary of Labor, instituted a conference
call with Judge Koutras. Pursuant to request of counsel Judge
Koutras continued the hearing for several weeks and changed the
hearing site. Mr. McAfee testified at the disciplinary hearing
that prior to the conference call he was told by Mr. Malecki
about the Judge's 10-day requirement (Tr. 9-10). Also at the
disciplinary hearing, Mr. Malecki described the discussion of the
10-day requirement during the conference call itself (Tr. 32).
On September 3 and September 24, Judge Koutras issued amended
hearing orders scheduling the hearing for October 3 in Duffield,
Virginia. Mr. McAfee received copies of these orders. He also
received from the Judge a letter dated September 10, enclosing a
letter the Judge had received from the operator. On October 2
the day before the scheduled hearing, Mr. McAfee and Mr. Malecki
met in the former•s office to discuss the case. On that occasion
Mr. Malecki told Mr. McAfee he thought it was too late for a
settlement in view of the Judge's 10-day requirement (Tr. 23, 30).
Judge Koutras was mentioned by name (Tr. 30).
On the day of the hearing, October 3, at 7:30 a.m., the
operator telephoned Mr. McAfee advising that he would pay
the penalty of $500 proposed by the Mine Safety and Health Administration (MSHA), and would not come to the hearing.
Mr. McAfee then telephoned Mr. Malecki and told him that the
operator was willing to pay MSHA 1 s proposed penalty and that in
light of this he saw no need to appear at the hearing (Tr. 6, 33).
Mr. Malecki said he did not know what Judge Koutras would do, but

411

that in light of the 10-day requirement he doubted the Judge
would approve the settlement of $500 and that he might have to
put on his case (Tr. 33-34). As Mr. Malecki predicted, Judge
Koutras proceeded with the hearing.
On the next day, Judge Koutras issued an order directing
Mr. McAfee to show cause within 10 days why he should not be
referred to the Commission for disciplinary action pursuant to
29 C.F.R. § 2700.80 for his failure to appear at the hearing and
for his failure to advise the presiding Judge that he would not
appear. In his response filed October 17, Mr. McAfee stated that
at the time the operator telephoned him on October 3 he did not
have the file which reflected who the administrative law judge
was and only knew where the Solicitor was staying. In the cover
letter to his response Mr. McAfee asked Judge Koutras what disciplinary rule he had violated so he could further respond to the
show cause order. On the same day Judge Koutras replied, citing
29 C.F.R. 2700.80(c) and giving Mr. McAfee a copy of the Commission1s decision in Disciplinary Proceedings, 7 FMSHRC 623
(1985). The Judge gave Mr. McAfee an additional 10 days to
respond, stating as follows:
The purpose of the show-cause order is to
afford you an opportunity to explain your failure
to appear at the scheduled hearing in this matter,
or to advise me that you would not appear. Upon
receipt of your reply, I will then determine
whether or not to refer the matter to the Commission
for possible disciplinary action pursuant to its
rules.
Mr. McAfee did not respond further an~, as already
noted, Judge Koutras referred the matter to the Commission in his
decision dated December 4, 1985.
In his petition to the Commission, Mr. McAfee again stated
that on the morning of October 3 he did not know the name of the
Judge and asserted that any implication to the contrary was
unfounded.
It is difficult to accept Mr. McAfee's assertion that on
October 3 he did not know Judge Koutras' name. Between August 30
and October 3 he participated in a telephone conference call with
the Judge and received two orders and a letter from him. And on
the day before the hearing Judge Koutras was referred to by name
in the meeting Mr. McAfee had with Mr. Malecki. But even accepting Mr. McAfee 1 s proferred excuse and viewing this aspect of
the matter in the light most favorable to him, he could have obtained the Judge's name from Mr. Malecki when he spoke to
Mr. Malecki on the morning of October 3. It is clear from Mr.
McAfee's testimony at the disciplinary hearing that he did not

412

obtain Judge Koutras' name or call him because the operator had
agreed to pay MSHA's proposed penalty of $500 (Tr. 16~17). According to Mr. McAfee it did not occur to him that the Judge
would have any objection to an uncontested settlement (Tr. 17).
This explanation cannot be accepted as a valid excuse for not
appearing at the hearing. Mr. McAfee knew about the Judge's
10-day requirement. At the meeting on the day before the
hearing, Mr. Malecki told Mr. McAfee he thought it was already
too late for a settlement in light of the 10-day requirement (Tr.
30). And when Mr. McAfee spoke with Mr. Malecki on the morning
of October 3, Mr. Malecki expressed the view that Judge Koutras
would not approve the settlement and that he would have to put on
his case (Tr. 33). At this point, both counsel were speaking
about a settlement of $500, MSHA's proposed penalty. Accordingly, on the morning of October 3 Mr. McAfee knew that despite
the operator's willingness to pay $500, his appearance was
required and a good chance existed the hearing would go forward.
Nevertheless, Mr. McAfee deliberately chose to disregard the
Judge's orders and did so without bothering to personally notify
him.
At the disciplinary hearing, Mr. McAfee stated he was unaware that a Commission Judge does not have to accept a proposed
settlement even if it is for MSHA's proposed amount {Tr. 13).
This asserted lack of knowledge is reject~d in view of the advice
Mr. McAfee received from Mr. Malecki that the hearing would probably go on despite operator acceptance of the $500 penalty. In
any event, such ignorance, even if true, cannot justify the
failure to appear. As an attorney undertaking to act in cases
under the Mine Safety Act, Mr. McAfee can be expected to be conversant with one of the most elementary principles governing
these proceedings, i.e., the Judge 1 s de novo authority in penalty
cases. Sellersburg Stone Company v. Federal Mine Safety and
Health Review Commission, 736 F.2d 1147 (7 Cir. 1984). In this
case after the hearing at which on~y the Solicitor appeared, the
Judge issued a decision exercising his de nova authority and
assessing a penalty of $600. No appeal-Wastaken. Of course,
one does not know what would have happened if Mr. McAfee had
appeared and cross-examined MSHA's witnesses. But he certainly
did his client no service by his absence, leaving the Judge to
decide the matter on a one-sided record.
Moreover, after being advised at the disciplinary hearing of
the Judge's de nova authority in penalty cases, Mr. McAfee
expressed noregret for his ignorance of applicable law or for
his failure to appear, but rather stated that it was "disturbing"
to ~im that a Judge would act the way Judge Koutras did.
Mr. McAfee consistently has denied any responsibility and
has instead criticized the Judge. In his petition to the Commission, Mr. McAfee asserted that Judge Koutras was incorrect in
stating that he failed to respond. At the disciplinary hearing
it was explained to Mr. McAfee that Judge Koutras was not

413

referring to the show cause order dated October 4 but to his
subsequent letter of October 17. Mr. McAfee then stated:
"I had already answered the man. And, he
wanted me to answer him more and I didn t have
any more to tell him (Tr. 19).
1

11

Mr. McAfee 1 s criticism of the tone of Judge Koutras' orders
and letter is unfounded (Tr. 19). If the orders and letter
indicate anything, it is that the Judge was giving Mr. McAfee
every chance to explain his failure to appear. Insofar as 11 tone 11
is concerned, Mr. McAfee's written responses and oral testimony
demonstrate irritation and impatience.
As an attorney appearing before a Commission Judge,
Mr. McAfee was bound not to disregard any of his orders or
rulings. Disciplinary Rule 7-106 of the Code of Professional
Responsbility. But far from showing any sense of obligation to
comply with the Judge s orders Mr. McAfee's lack of respect is
evident from his statement at the disciplinary hearing:
1

Well, ! 1 11 be happy.to submit this to the
Virginia State Bar and allow them to discipline
me as they see fit. But I don't feel like I've
violated any disciplinary rule or any
ethetical [sic] consideration" (Tr. 20).
11

In addition to his refusal to acknowledge his professional
obligations, Mr. McAfee also fails to understand that this Commission like any other institution in which lawyers or other professionals participate, has authority to police the behavior of
practitioners appearing before it. Polydoroff v. I.C.C., 773
F.2d 372 (D. C. Cir. 1985). It would be impossible for the
judges of this Commission to function if, as in this case, their
orders were ignored with impunity and they themselves were held
in such low regard by attorneys who practice before them.
In addition, Commission Judges travel at public expense to
hearing sites convenient to the parties 29 C.F.R. § 2700.51.
That is what the Judge did in this case and Mr. McAfee knew it.
But this factor obviously meant nothing 9 and as the record of the
disciplinary hearing disclose$~ still means nothing to Mr. McAfee
(T r .· 1 7 -18 ) •
The mere fact of counsel 1 s absence from the hearing would
not warrant disciplinary action if the absence resulted from good
cause or excusable neglect. Thyssen Inc. v. S/S Chuen On, 693
F.2d 1171 (5 Cir. 1982). In light of the circumstances set forth
herein, I find that there was no good cause or excusable neglect.
Mr. McAfee intentionally failed to appear although he knew his
presence was required, had not been excused and that the case
might well proceed in his absence.

414

I am aware that this is the first Commission case in
which Mr. McAfee nas appeared and that this circumstance could be
considered in mitigation. Disciplinary Proceedings, 7 FMSHRC 623
(1985). However, I conclude this is not an appropriate case for
mitigation of disciplinary action. Mr. McAfee 1 s inexperience was
taken into account at the disciplinary hearing where applicable
law was explained to him at length. ~ut even then, he did not
apologize or express regret either for his lack of knowledge or
for his failure to appear. Throughout, his attitude toward this
Commission and the Judge has been one of contempt and defiance.
In light of the foregoing, attorney Timothy W. McAfee is
hereby REPRIMANDED and is hereby SUSPENDED from practicing before
this Commission for a period of 60 days for unprofessional
conduct in deliberately failing to appear at a hearing duly
scheduled pursuant to orders of an Administrative Law Judge of
the Commission.

Paul Merlin
Chief Administrative Law Judge
Distribution:
James B. Leonard, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington, VA 22203
(Certified Mail)
Mark R. Malecki, Esq., Office of the Solicitor, U. S. Department
of Labor, 4015 Wilson Boulevard, Room 1237A, Arlington. VA 22203
(Certified Mail)
Timothy W. McAfee, Esq.~ Cline, McAfee & Adkins, Professional
Arts Building. 1022 Park Avenue, N.W., Norton, VA 24273-0698
(Certified Mail)
Mr. Jerry Deel, Route 2, Box 54, Haysi. VA
Mai 1 )

/g1

415

24256

(Certified

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
OFFICE OF ADMINISTRATIVE LAW JUDGES

2 SKYLINE, 10th FLOOR
5203 LEESBURG PIKE
. FALLS CHURCH, VIRGINIA 22041

March 25, 1986

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

.: CIVIL PENALTY PROCEEDINGS
: Docket No. CENT 85-129-M
:

A.C.-No. 41-03217-05505

:

:
:

WHITNEY SAND & GRAVEL
INCORPORATED,
Respondent

Docket No. CENT 86-14-M
A.C. No. 41-03217-05506

.
: Whitney Sand & Gravel
:

Incorporated

DECISIONS
Appearances:

Allen Reid Tilson, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for the Petitioner;
John E. Agnew, Esq., Carter, Jones, Magee,
Rudberg & Mayes, Dallas, Texas, for the
Respondent •

Before:

.Judge Koutras
Statement of the Proceedings

~hese proceedings concern proposals for assessment of
civil penalties filed by the petitioner against the respondent pursuant to section llOCa) of the Federal Mine Safety
and Health Act of 1977. The petitioner seeks civil penalty
assessments for three alleged violations of certain mandatory
safety standards found in Part 56, Title 30, Code of Federal
Regulations, and one violation of the reporting requirements
30 C.F.R. § 50.30Ca).

The respondent filed timely answers to the petitioner's
proposals, and a hearing was conducted in Dallas, Texas. The
parties waived the filing of posthearing arguments or briefs,
but I have considered any oral arguments made on the record.

416

Issues
The primary issue presented is ·whether or not the respondent violated the cited safety staadards, and if so, the
appropriate civil penalties which should be assessed taking
into account the civil penalty assessment criteria found in
section llOCi) of the Act. Additional issues raised by the
parties are discussed and disposed of in the course of these
decisions.
Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et seq.
2.

Section llO(i) of the 1977 Act, 30 u.s.c. § 820Ci).

3.

Commission Rules, 29 C.F.R.

§

2700.l et seg.

Stipulations
The respondent agreed that its plant is a "mine" within
the meaning of the Act, and it agreed that the plant and the
company are subject to MSHA's enforcement jurisdiction, and
to the jurisdiction of the Mine Safety and Health Review
Commission.
Discussion
Docket No. CENT 85-129-M
Section 104Ca> "S&S" Citation No. 2240701, February 14,
1985, cites an alleged violation of 30 C.F.R. § 56.12025, and
the condition or practice is stated as follows: "The wet
process screening plant was not grounded in that there was no
low impedance path back to the electrical source which
supplies power to all plant drive motors. Employees are
required to come in contact with the plant equipment during
operation. ue
Section 104Ca) "S&S" Citation No. 2240702, February 14,
1985, cites an alleged violation of 30 C.F.R. § 56.12028, and
the condition or practice is stated as follows: "Continuity
and resistance of grounding systems test has not been performed at this plant. 11
Docket No. CENT 86-14-M
Section 104(a} "S&S" Citation and 107Ca} imminent danger
Order No. 2241058, August 15, 1985, cites an alleged violation of 30 C.F.R. § 56.9003, and the condition or practice is
stated as follows: "The Allis-Chalmers Loader, Co. i 514 was
not provided with operable foot brakes that would stop the

417

unit on level ground. Loader is used to load truck and perform clean-up in the plant area. Moderate foot and truck
traffic is present in the working ar.ea."
Section 104(a) Citation No. 2241214, September 9, 1985,
cites an alleged violation of 30 C.F.R. § 50.30(a), and the
condition or practice is described as follows: "The operator
had failed to submit Form 7000-2 Quarterly Employment and
Production Reports for the First and Second Quarters of
FY 1985 as required."
Testimony and Evidence Adduced by the Petitioner
Docket No. CENT 85-129-M
MSHA Inspector Michael Sanders testified as to his background, training, and experience and he confirmed that he has
been employed as an inspector since 1977. He confirmed that
he conducted inspections at the respondent's plant on
February 14, and August 11, 1985. He described the respondent's operation as a sand processing plant. He stated that
sand is mined from an open pit by use of a drag line. The
sand is loaded and processed through a series of conveyors
and it is screened, washed, sized, and stockpiled for later
transportation. The plant employs approximately seven to
nine people and operates 5 or 5-1/2 days a week, and one
daily 8-hour shift.
Mr. Sanders identified exhibits P-1 through P-6 as photographs of the plant and some of the equipment which he took a
week or so prior to the hearing. He stated that the source
for all electrical power for the plant is depicted in exhibit
P-2u and that the electrical lines are routed to the electrical control center shown in exhibit P-1. This control center
serves as the "electrical nerve center" for the electrical
equipment such as conveyor drive motors, screens, shakers,
and conveyor belts.
Mr. Sanders stated that all of the electrical boxes for
the plant equipment are located in the control center shed.
The plant was dpwn at the time of his inspection, and he
determined that the plant was not properly grounded by simply
opening the electri~al boxes and observing the absence of a
ground wire providing a low impedance electrical path back to
the eletrical source. He did observe a properly grounded
water pump which had recently been installed.
Mr. Sanders stated that none of the plant equipment or
motors in question were battery operated, and he confirmed

____ ,,.

418

that they were all operated from the electrical sources shown
in the photographic exhibits. Mr. Sanders s·tated that he did
not physically check each motor, and that his determination
that the plant was not properly gr~unded could readily be
observed by opening the electrical boxes and visually observing the lack of a low impedance ground wire.
Mr. Sanders stated that the plant and the equipment is
primarily of steel construction an~ that it normally operates
on 440 volts of power. He believed that the lack of proper
grounding posed a hazard of electrical shock. In the event
of an electrical short circuit in the plant wiring, there is
a potential for "live circuits." In the event someone
touched the equipment or otherwise contacted it, he could
receive a shock. The lack of proper grounding, the presence
of standing water, and the fact that the number 1 and 2
screens are always wet increased the potential shock hazards.
Mr. sanders stated that the plant operator, as well as
two or three other employees, would be exposed to the hazard
of shock or electrocution. He also stated that when the
plant was originally installed and wired, it was not wired
correctly. He conceded that prior MSHA inspections did not
result in any prior violations for the lack of proper
grounding.
Mr. Sanders confirmed that the respondent did not originally install or wire the plant equipment, and it took over
the operation of the plant from a previous owner in March,
1984. He also confirmed that it took him 15 to 30 minutes
during his inspection to detect the violation, and that the
respondent eventually corrected the condition by completely
rewiring the plant and installing ground wires on all equipment and motors. This was a ·major project, but he did not
know how much it cost to properly wire the plant.
Mr. Sanders stated that he issued Citation No. 22040701
because of the lack of proper grounding for the plant wiring.
He used no testing devices to support the violation, and
relied on his visual observations of the control boxes.
On cross-examination, Mr. Sanders stated that the "other
equivalent protection" language provided for in section
56.12-25, could be the isolation of the electrical circuits.
Although wire insulation provided a measure of protection, he
did not believe that the use of such insulation in and of
itself could serve as "equivalent protection."

419

Mr. Sanders confirmed that there were no reported accidents concerning the lack of grounding, and he could not
state why previous inspections did not result in the issuance
of any violations for the condition. He also confirmed that
the condition could have been abated earlier by the respondent, and that his abatement was made after he later visited
the plant and found that the condition had been correcte~.
Mr. Sanders stated that a ground fault interceptor circuit could serve as "equivalent protection," but that such an
alternative was not installed or in use at the time he viewed
the cited conditions.
Citation No. 2240702
Inspector Sanders testified that he issued the violation
after determining that the respondent had not conducted any
grounding tests for its plant electrical equipment as
required by mandatory standard section 56.12-28. He stated
that plant foreman Murphy had no knowledge that the test had
been done and he could not produce the test records when
asked.
Mr. Sanders stated that the hazards resulting from the
failure to conduct the required tests are the same as those
resulting from the previous violation No. 2240701. Had the
test been conducted annually as required by the standard, the
lack of proper grounding would have been detected.
Mr. Sanders stated that the violation was abated after
the respondent retained a knowledgeable independent contractor to conduct the test, and after the records of the test
were retained at the plant office. Mr. Sanders confirmed
that he reviewed the test results and was satisfied that compliance had been achieved. He also confirmed that he left
written instructions with foreman Murphy as to how to conduct
the required ohm resistance test.
Docket No. CENT 86-14-M
Citation No. 2241058
Inspector Sanders testified that he issued the violation
after finding inadequate foot brakes on an Allis-Chalmers
front-end loader being operated at the plant. The loader was
used to clean up and load materials, and other trucks were
operating in the vicinity of the loader. Mr. Sanders stated
that he asked the loader operator to drive the loader in a

420

forward motion and to apply the foot-brake, and when he did,
the loader would not stop.
Mr. Sanders believed that the-inadequate brake condition
presented a hazard to those employees on foot and to the
other vehicles operating near the loader. He confirmed that
there was one employee on foot near the loader, and that he
and the foreman were also there. He also believed the loader
was operated on ramps and elevated roads.
Mr. Sanders believed that the loader was removed from
the property and replaced by a new one, and he confirmed that
he issued a combination 104Ca) citation and 107{a) imminent
danger order in order to insure the removal of the loader
from service.
On cross-examination, Mr. Sanders confirmed that plant
foreman George Hart informed him of the inadequate brake condition on the loader prior to his inspection of the vehicle.
He stated that Mr. Hart told him that he had limitea the operation of the loader to level ground and that it cou~d be
stopped by use of the parking or hand brake. Mr. Hart also
advised him that he had requested a mechanic to perform maintenance on the truck. Mr. Sanders stated that he observed
the loader stopping and loading trucks (Tr. 7-77>.
Citation No. 2241214
The respondent conceded and admitted that it failed to
file the first and second quarter FY 1985 reports as required
by mandatory reporting regulation 30 C.F.R. § 50.30(a).
Under the circumstances, the inspector who issued the violation was not called to testify ( Tr 79}.
1

o

Respondent's Testimony and Evidence
Citation No. 2241214
Wayne Roberts, testified that he is employed by the
respondent as its controller, and he confirmed that it was
his responsiblity to file the quarterly reports in question.
He stated that he delegated this responsibility to one of his
secretaries who was subsequently fired for not doing her job.
He later learned that the secretary had not filed the reports,
and the un-f iled forms were found among her unfinished work on
her desk. After he discovered that they had not been filed,
he filed them immediately.

421

Mr. Roberts stated that prior reports had always been
timely filed and that the respondent has not been previously
cited for failure to file the reports (Tr. 79-83).
Citation No. 2241058
George K. Hart, plant foreman, testified that he informed
Inspector Sanders about the lack of adequate foot brakes on
the front-end loader before he began his inspection. Mr. Hart
stated that the brakes had "gone bad" 2-days prior to the
inspection and that he had reported the condition to a
mechanic who was supposed to repair them.
Mr. Hart stated that the loader operator was an experienced operator, and he instructed him to operate the loader
on level ground and to restrict its operation to the stock
pile area loading sand on the trucks. Mr. Hart stated further that the loader was the only one available at the plant
and that its use with inadequate foot brakes was only a temporary measure. There was no foot traffic in the area where
the loader was operated, and Mr. Hart estimated that it operated at a speed of 1 or 2 miles an hour. He stated that the
loader could be stopped by means of the hand brake or parking
brake, and that during the time it was operated with inadequate foot brakes, no harm or damage was done.
Mr. Hart stated that he told Inspector Sanders about the
condition of the loader so that he would know that the loader
was needed to be used until a replacement loader was received.
A replacement loader had been ordered and it arrived a day or
two after the citation was issued.
On cross-examination, Mro Hart stated that the loader
was fueled once a day at the end of the shift. He also
believed that oil would be added at least once a day. The
fueling and oiling took place at the storage shack area, and
he indicated that the loader would be driven around the sand
stock pile areas and not on the main plant road. He also
indicated that the loader operator would park the loader
approximately 30 minutes before the other plant employees
ended their shift, and he denied that anyone on foot was
expqsed to any hazard.

Mro Hart stated that the loader operator and other
employees were notified about the condition of the loader,
and he believed that it could be safely operated under the
controlled circumstances under which it was operated (Tr.
84-104).

422

J. R. Marriot, respondent's operating officer, testified
that he first became aware of the brake condition on the
front-end loader on the day after the inspection. Had it
been brought to his attention earlier, both the machine and
plant would have been shut down because only one loader was
available. He stated that the respondent was in the process
of ordering a new loader, and that the maintenance operation
and mechanic who worked on the equipment were located in
Dallas. The mechanic had to travel to the plant site to perform maintenance, and Mr. Marriot did not know whether the
mechanic had been informed about the conditions of the brakes
(Tr. 105, 107). He stated that it is not company policy to
operate equipment witho~t operable foot brakes because "it's
against the law" and "a danger to everyone" (Tr. 106, 107).

Mr. Marriot stated that the electrical wiring system for
the plant has been in place since approximately 1983, when he
purchased the operation from S&S Sand and Gravel. He stated
further that he has experienced no problems with the system,
but that after the grounding citation was issued substantial
work was performed to install ground wires at an approximate
cost of $4,000 to $5,000, and compliance was achieved within
the next month of the issuance of the citation (Tr. 109).
Mr. Marriot stated that he has instituted procedures for
making employees aware of MSHA's compliance requirements, and
that he issues internal citations to employees who violate
safety regulations. After three citations, an employee is
subject to discharge. He also stated that he has begun a
system of personal inspection of the operation to insure that
all safety regulations are complied with (Tr. 109-110).
In response to further questions, Mr. Marriot stated
that there were problems with the loader in question and that
the new loader was ordered because of these problems (Tr.
111).
Inspector Sanders was recalled as the Court's witness,
and he testified that he had no reason to question Mr. Hart's
assertions that he was aware of the loader brake condition
and had instructed the operator to use it under "controlled
conditions." Mr. Sanders conceded that he was aware of this
when he issued the citation (Tr. 114). He confirmed that at
the time of his inspection he did not speak with the loader
operator, nor did he determine how much vehicular traffic was
in the area where the loader was operating (Tr. 115).
Mr. Sanders stated that he considered the loader citation to be "S&S" because the brakes were inoperable and it

423

was the only loader available. In the event of an emergency
situation where the loader would be needed in other areas of
the plant, he believed that there would have been no hesitancy by the respondent to use the_ loader in those other
areas. He also believed that had he not been there on an
inspection, the loader would have been used with faulty
brakes until the new one was placed in service (Tr. 116-117).
Findings and Conclusions
Docket No. CENT 85-129-M
Citation Nos. 2240701 and 2240702 - Fact of Violation
The respondent conceded that the plant was not grounded
in accordance with the requirements stated in mandatory standard 30 C.F.R. § 56.12025 (Tr. 125). Although the respondent
suggested that the insulation on the plant wiring provided an
"alternative" means of compliance and provided an equiva·lent
means of protection, no credible testimony or evidence was
produced to establish this as a defense. Accordingly, this
argument is rejected.
Mandatory standard 30 C.F.R. § 56.12025, requires that
all metal enclosed or encased electrical circuits be grounded
or provided with equivalent protection. In this case, the
evidence established that the cited drive motors in question
were not grounded in accordance with MSHA's requirements pursuant to section 56.12025, nor is there any credible evidence
that equivalent protection was provided. Accordingly, I conclude and find that the petitioner has established a violation by a preponderance of the evidence, and Citation
No. 2240701 IS AFFIRMED.
Mandatory standard 30 C.F.R. § 56.12028, requires that
the electrical grounding system in question be tested immediately after installation, and annually thereaft~r. Inspector
Sanders testified that he issued the citation after finding
no evidence that the system had ever been tested. The plant
foreman had no knowledge as to whether any of the required
tests had ever been made, and the respondent produced no
records to establish that any tests had ever been made.
While it is true that the system was in place when the respondent acquired the plant from the previous owner in 1983,
there is no evidence that it ever conducted any annual tests
subsequent to that time as required by the standard. Under
the circumstances, I conclude that a violation has been established, and Citation No. 2240702, IS AFFIRMED.

424

Docket·No. CENT 86-14-M
Citation No. 2241214 - Fact of Violation
The respondent conceded and admitt~d that it failed to
file the reports required by 30 C.F.R. § 50.30(a) (Tr. 79).
I conclude and find that a violation has been established,
and the citation IS AFFIRMED.
Citation No. 2241058 - Fact of Violation
The respondent conceded that the cited loader was operated with inadequate foot brakes (Tr. 119), and the evidence
establishes that the respondent was aware of the fact that
the foot brakes were inoperable. The respondent's defense is
that the loader was only operating in a "controlled environment," and that a new loader was on order to replace the one
that was cited. Respondent also asserted that a mechanic was
scheduled to repair the cited loader the day after the citation was issued, but did not appear (Tr. 118).
Mandatory standard 30 C.F.R. § 56.9003, requires that
all powered mobile equipment be provided with adequate brakes.
The evidence in this case established that the foot brakes on
the cited loader would not stop the machine when tested on
level ground. I conclude and find that the brakes were not
adequate and that the petitioner has established a violation
by a preponderance of the credible testimony and evidence
adduced at the hearing. Accordingly, the violation IS
AFFIRMED.
Size of Business and Effect of Civil Penalty on the
Respondent's Ability to Continue in Business
The record establishes that the respondent is a small
mine operator employing approximately seven to nine people in
the operation of a sand processing plant. I conclude and
find that the civil penalties assessed by me for the violations in question will not adversely affect the respondent's
ability to continue in business.
History of Prior Violations
Exhibits G-8, are two computer print-outs reflecting the
respondent's prior compliance record for the periods
August 15, 1983 through August 14, 1985, and February 14,
1983 through February 13, 1985. The citations listed on the
second print-out are also included on the first one. Accordingly, I have considered only the first listing which

~25

reflects that the respondent was served with 26 section
104(a) citations and two section 107(a) orders. Two of the
citations listed (2240701 and 2240702) are the subject of the
instant proceedings. The print-out reflects that the respondent has been assessed civil penalties in the amount of
$4,589, for the listed violations, and that it has made civil
penalty assessment payments in the amount of $2,188 through
August 14, 1985.
During the course of the hearing, Inspector Sanders
stated that the respondent has been previously charged with
"many more" violations for defective brakes on its equipment
(Tr. 122). Mr. Sanders stated that it was his "recollection"
that he issued two additional orders for defective brakes at
the time of his inspection, but since he did not bring his
file to the hearing, he could not substantiate this (Tr. 123).
The print-out reflects two prior section 107(a) orders for
violations of mandatory standard section 56.9003, for which
the respondent paid $1,200 in civil penalty assessments "($600
for each order). Mr. Sanders believed that these prior violations concerned a different loader and a haul truck (Tr. 124).
I conclude and find that the respondent's overall compliance record is not such as to warrant any additional increases
in the civil penalty assessments made by me in these proceedings. However, in view of the two prior imminent danger
orders for inadequate brakes on its mobile equipment, I
believe that the respondent needs to pay closer attention to
its equipment maintenance program, particularly with respect
to the brakes on its mobile equipment. I have taken these
prior violations into account in assessing the civil penalty
for the brake violation which has been affirmed in Docket No.
CENT 86-14-M.
Good Faith Abatement
I conclude and find that all of the violations were subsequently abated in good faith by the respondent.
Gravity
I conclude and find that reporting violation (No. 2241214)
was non-serious. I conclude and find that the grounding citation (No. 2240701) and the testing violation (No. 2240702) were
both serious violations. Failure to ground the electrical circuits in question presented a shock hazard to mine personnel.
Had the respondent conducted the required tests, there is a
strong probability that it would have detected the lack of
grounding and thus avoided the hazard.

426

With regard to the inadequate brake violation
(No. 2241058} I conclude and find that this was a serious
violation. Even though the respondent may have instructed
the loader operator to operate the machine on level ground
and in an area where there was little foot or vehicular
traffic, and the. loader could be stopped by means of the hand
brake or parking brake, the lack of inadequate foot brakes
presented an accident and injury hazard. The loader had been
operated with inadequate foot brakes for at least 2-days
prior to the inspection.
Negligence
I conclude and find that the grounding, testing, and
reporting violations all resulted from the respondent's failure to exercise reasonable care, and that this amounts to
ordinary negligence.
With regard to the braking violation, the evidence establishes that the plant foreman was aware of the fact that the
loader foot brakes were inadequate and that tbe machine was
in operation with inadequate brakes for at least 2-days prior
to the inspection. Under the circumstances, I conclude and
find that the violation resulted from a high degree of negligence on the part of respondent bordering on gross negligence.
However, in mitigation, I have considered the fact that the
removal of the loader from operation would have effectively
shut down this small operator's operation, that the hand
brakes and parking brakes could stop the loader on level
ground, and that the foreman instructed the loader operator
to restrict the operation of the loader to an area with the
least possible exposure to accident or injury and so advised
the inspector at the time the violation was issued.
Significant and Substantial Violations
Inspector Sanders testified that the plant and equipment
were constructed primarily of steel materials and that the
plant operated on a 440 volt electrical system. He believed
that the lack of proper grounding posed a hazard of electrical shock. In the event of a short circuit in the system,
and in view of the wet plant conditions, someone contacting a
"live circuit" resulting from a short in the system could be
shocked or electrocuted. In addition, the record establishes
that the plant wiring had been in place for some time without
proper grounding or testing. Under the circumstances, I conclude and find that the testing and grounding conditions presented a reasonable likelihood of an accident or 'injury of a

427

reasonably serious nature. Accordingly, I conclude and find
that Inspector sanders' "significant and substantial" findings with respect to Citation Nos. 2240701 and 2240702, are
fully supported, and they ARE AFFIRMED.
With regard to the inadequate brakes violation, the
record establishes that the loader was operated in that condition for at least 2-days prior to the inspection. fnspector
Sanders believed that it would have been operated for a
longer period of time had he not been at the mine for an
inspection, and while he acknowledged ·that it may have been
operated in a "controlled environment," he was concerned that
it would have been operated until some unspecified time pending the arrival of a new one.
Although the respondent asserted that a new loader was
on order, the fact is that its maintenance shop was in Dallas
and the mechanic had to travel to the plant for maintenance.
Respondent asserted that the loader was not repaired before
the inspection because the mechanic did not show up as scheduled. Since the respondent had a new loader on order, I
believe one can reasonably assume that it would not expend
money for a brake job given the fact that a new one was on
order. I believe that there is a strong inference in this
case that the respondent intended to use the loader with
inadequate foot brakes until the new one was placed in operation. Since the loader with inadequate brakes was the only
one available at the plant, I further believe that the inspector's concern that it would have been used if necessary in
areas outside the "controlled environment" was real and reasonable. Under the circumstances, I conclude and find that
the inadequate brake condition constituted an accident and
injury hazard, and had an accident occurred, I believe it is
reasonably likely that disabling injuries would have resulted.
Accordingly, the inspector's "S&S" finding with respect to
Citation No. 2241058, IS AFFIRMED.
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 and reasonable for the violations
which have been affirmed.

428

Docket No. CENT 85-129-M
Citation No.

Date

30 C.F.R. Section

Assessment

2240701
2240702

2/14/85
2/14/85

56.12025
56.12028

$213
$213

Docket No. CENT 86-14-M
Order/
Citation No.

Date

30 C.F .R •. section

Assessment

2241058
2241214

8/15/85
9/9/85

56.9003
50.30Ca>

$1,250
20
$

ORDER
The respondent IS ORDERED to pay the civil penalties
assessed by me in these proceedings within thirty (30) days
of the date of these decisions.
Payment is to be made to
MSHA, and upon the receipt of same, these proceedings are
dismissed.

~.l~
Administrative Law Judge

Distribution:
Allen Reid Tilson, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 South Griffin Street, Suite 501,
Dallas, TX 75202 (Certified Mail)
John E. Agnew, Esq., Carter, Jones, Magee, Rudberg & Mayes,
2400 One Main Place, Dallas, TX 75250 (Certified Mail)

/f b

429

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

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

.:
:

CIVIL PENALTY PROCEEDING
Docket No. CENT 85-138-M
A.C. -No. 41-00010-05502

.: Capitol Cement Plant

·CAPITOL AGGREGATES, INC.,
Respondent

DECISION
Appearances:

James L. Manzanares, Esq., Office of the
Solicitor, U.S. Department of Labor, Dallas,
Texas, for Petitioner;
Richard L. Reed, Esq., Johnston, Ralph, Reed &
Cone, San Antonio, Texas, for Respondent.

Before:

Judge Koutras
Statement of the Case

This proceeding concerns 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
three alleged violations of certain mandatory safety standards found in Part 56, Title 30, Code of Federal Regulations.
The respondent filed a timely answer and contest, subpoenas were issued, and pursuant to notice the case was heard
in San Antonio, Texas, on February 25, 1986.
Issue
The issue in this case is whether the respondent violated the cited mandatory safety standards, and if so, the
appropriate civil penalties which should be assessed for the
violations in question. Additional issues raised by the parties are identified and discussed in the course of this
decision.

430

Applicable Statutory and Regulatory Provisions
1. The Federal Mine Safety and Health Act of 1977,
Pub. L. 95-164, 30 u.s.c. § 801 et- seq.
u~s.c.

2.

section llOCiJ of the 1977 Act, 30

3.

Commission Rules, 20 C.F.R. § 2700.1 et seq.

§

820Ci).

Stipulations
The parties agreed that the respondent's Capitol Cement
Plant is a "mine" as that term is defined by the Act, and
that the respondent and ·the plant in question are subject to
MSHA's enforcement jurisdiction as well as the jurisdiction
of the Mine Safety and Health Review commission.
The parties agreed that at all times relevant to this
proceeding the respondent's plant worked 277,985 annual ·
man-hours, and that the corporate entity controlling the operation of the plant worked 607,510 annual man-hours.·
The parties agreed that the assessment of the proposed
civil penalties for the citations in question will not
adversely affect the respondent's ability to continue in
business.
The parties agreed that the respondent abated the citations in question in good faith.
Exhibit P-1 is an MSHA computer print-out reflecting the
respondent's prior history of violations. The information
provided reflects that for the period February 21, 1983 to
February 20, 1985~ the respondent had three assessed violations for which it paid civil penalties totaling $60. For
the period prior to February 21, 1983, respondent had seven
assessed violations, and paid a civil penalty assessment of
$98 for one of the violations.
Discussion
The alleged violations in this case were all issued after
an MSHA fatality investigation at the respondent's plant. The
facts show that an intoxicated laboratory technician employed
by the respondent intentionally misused and inhaled nitrous
oxide gas which resulted in his death. The alleged violations
which were issued are as follows:

431

Section 104(a) "S&S" Citation No. 2231659, February 21,
1985, cites an alleged violation of 30 C.F.R. § 56.20-1, and
the condition or practice is stated·as follows:
A fatal accident occurred November 24th,
1984, at about 0200 hours, when an employee
was found on the floor, unconscious, in the
main room of the laboratory. The employee was
pronounced dead at the hospital approximately
1 hour later. The autopsy report showed 0.171
alcohol in the blood and nitrous oxide in the
bile due to intentional inhalation by the
employee.
Section 104(a) "S&S" Citation No. 2241817, March 13,
1985, cites an alleged violation of 30 C.F.R~ § 56.18-2, and
the condition or practice is stated as follows:
A fatal accident was experienced on
November 24, 1984. The operator had failed to
cause safety and health hazard inspections of
all work areas to be conducted each shift. No
persons were designated to conduct these
inspections and record these findings. Conductance of such inspections would have acted as
a deterrent to the apparent abuse of the industrial gas, Nitrous Oxide, and the presence of
workers under the influence of alcohol at the
mine site.
Section 104(a) "S&S" Citation No. 2241818, March 13,
1985, cites an alleged violation of 30 C.F.R. § 56.20-11, and
the condition or practice is stated as follows:
A fatal accident occurred on November 24,
1984. There had been no signs posted at the
exterior laboratory industrial gas supply and
service area, or within the laboratory to warn
employees of the nature of the hazards
involved and the protective action required.
Highly combustable, explosive and asphyxiating
gases were being routinely used in these
areas.

432

Findings and Conclusions
Citation No. 2231659 - Fact'of Violation
30 C.F.R. § 56.20-1, provides as follows:
"Intoxicating
beverages and narcotics shall not be permitted or used in or
around mines. Persons under the influence of alcohol or narcotics shall not be permitted on the job."

The respondent denied that it permitted any person under
the influence of alcohol or narcotics on the job, or that
intoxicating beverages and narcotics were permitted by the
respondent, or used in or around its mine.
The inspector who issued the citation on February 21,
1985, subsequently modified it on April 23, 1985, and his
modification states as follows:
The negligence * * * is reduced from low
to none. The company had done all that would
be reasonably expected of them to be required
and not allow alcohol on the property or drug
useage by publishing safety rules which were
printed and signed as to being read by the
victim.
Petitioner's couns~l moved to withdraw Citation
No. 2231659, on the ground that the evidence will not support
a violation of the cited mandatory safety section 56.20-1.
Counsel stated that the petitioner cannot establish that the
respondent permitted the use of intoxicating beverages or
narcotics on the job.
Petitioner's motion to withdraw its proposal for assessment of a civil penalty for Citation No. 2231659, February 21,
1985, 30 C.F.R. § 56.20-1, IS GRANTED, and the citation IS
VACATED.
Citation No. 2241817 - Fact of Violation
30 C.F.R. § 56.18-2, provides as follows:

(a) A competent person designated by the
operator shall examine each working place at
least once each shift for conditions which may
adversely affect safety or health. The operator shall promptly initiate appropriate
action to correct such conditions.

433

(b) A record that such examinations were
conducted shall be kept by the operator for a
period of one year, and shall be made available for review by the Secretary or his authorized representative.
The parties proposed to settle this violation by the
respondent agreeing to pay a civil penalty assessment in the
amount of $168. The initial proposed "special assessment"
was in the amount of $500.
In support of the reduction of the proposed civil penalty assessment, petitioner's counsel took into consideration
the fact that the respondent could not have reasonably
foreseen that the employee would have intentionally and voluntarily inhaled the nitrous oxide kept in the plant laboratory
for the respondent's legitimate business needs. Although
counsel believed that he could support a finding of high neg11gence because a daily examination may have acted as a deterrent, he also believed that the gravity of the violation is
less than originally assessed because such an examination
would not likely have prevented the employee from intentionally inhaling the nitrous oxide.
Petitioner's counsel confirmed that the intentional act
of the employee in question endangered only himself and no
other miners, and that the respondent has taken appropriate
action to insure or preclude future incidents of this kind.
After careful consideration of the arguments presented
in support of the proposed settlement of the violation, I
conclude and find that it is reasonable and in the public
interest, and IT IS APPROVED. The citation IS AFFIRMED.
The respondent's counsel stated that in agreeing to
settle the violations in question and to pay the agreed upon
civil penalty assessments the respondent does not agree to
liability for the alleged violations, but has taken into consideration the cost of ~urther litigation.
Citation No. 2241818 - Fact of Violation
30 C.F.R. § 56.20-11, provides as follows:
"Areas where
health or safety hazards exist that are not immediately
obvious to employees shall be barricaded, or warning signs
shall be posted at all approaches. warning signs shall be
readily visible, legible, and display the nature of the
hazard and protective action required."

434

The respondent agreed not to contest the citation further, and agreed to make full payment of the proposed civil
penalty assessment of $16~I have .considered this proposal
as a settlement proposal, and with_. the agreement of the petitioner, and after consideration .of the six statutory criteria
found in section llOCi> of the Act, I conclude it is in the
public interest, and IT IS APPROVED. The violation IS
AFFIRMED.
ORDER
In view of the foregoing, Citation No. 2231659, IS
VACATED, and the petitioner's civil penalty proposal IS
DISMISSED. The respondent IS ORDERED to pay a civil penalty
in the amount of $168 for Citation No. 2241817, and a civil
penalty in the amount of $168 for Citation No. 2241818.
Payment is to be made to MSHA within thirty (30) days of the
date of this decision and order, and upon receipt of payment,
this case is dismissed.

~~L,ti1~
~$.-Koutras
Administrative Law Judge

Distribution:
James J. Manzanares, Esq., Office of the Solicitor, U.S.
Department of Labor, 525 Griffin Street, Suite 501, Dallas,
TX 75202 (Certified Mail)
Richard L. Reed, Esq., Johnston, Ralph, Reed & Cone,
2600 Tower Life Building, San Antonio, TX 78205 (Certified
Mail)
/fb

435

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

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

.

March 25 I 1986

CIVIL PENALTY PROCEEDING

.

v.

Docket No. WEST 84-19-M
A.C. No. 05-01054-05501
San Aroya Mine or
San Araya Pit

WALSENBURG SAND AND GRAVEL
COMP ANY, INC. ,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor,. Denver, Colorado,
for the Petitioner;
Ernest u. Sandoval, Esq., Walsenburg, Colorado,
for the Respondent.

Before:

Judge Carlson

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 u.s.c. § 801 et seq. (the Act),
arose from inspections of the respondent's sand]?it near Walsenburg,
Colorado on March 3 and March 7, 1983. On those dates, federal
mine inspectors issued a total of 13 citations for violations of
various safety standards promulgated by the Secretary of Labor
pursuant to the Act·. The respondent, Walsenburg Sand and Gravel
Company, Inc. (Walsenburg), contested the Secretary's petition for
imposition of civil penalties. The case was heard at Pueblo, Colorado,
with both parties presenting evidence. Neither party wished to file
briefs or other post-hearing submissions.
GENERAL BACKGROUND
The undisputed evidence shows that Walsenburg's San Aroya
Pit, where the inspections occurred, is located in an old riverbed. Sand is extracted from the surface with front-end loaders.
It is washed, screened, and stored in large piles at the site
until needed.
It is then loaded and trucked away. The company
actually extracts and processes sand during warm-weather months
only; frozen ground surfaces prevent removal during the remainder
of the year. Sand is trucked away from storage piles throughout
the year, however; as construction demands dictate.
On March 3, 1983, when the Secretary issued the first citation
in this case, the plant or processing machinery was not in operation. The gates at the site were open, howeve,r, and two employees
were engaged in loading sand and trucking it away.

436

On March 7, 1983, the Secretary's representatives returned
to the site again. At that time, the processing plant was in
operation. Walsenburg employees were testing out the conveyors
and other machinery preparatory to the beginning of production.
Walsenburg concedes that its activities affect commerce within
the meaning of the Act.
REVIEW AND DISCUSSION OF THE
EVIDENCE RELATING TO ALLEGED VIOLATIONS
Citation No. 2098376
On March 3, 1983, Jake DeHerrera, a federal mine inspector,
visited Walsenburg's San Araya pit. On that occasion he observed
approximately 150 feet of an electrical power line lying on the
ground at the site. Closer inspection revealed that some of the
poles intended to support the line had collapsed, and that the
220-volt line was energized. The last standing supporting pole
for the line was immediately adjacent to a 500-gallon diesel fuel
tank where respondent's front-end loader was refueled. The inspector issued a citation to Walsenburg charging a violation of the
mine safety standard published at 30 C.F.R. § 56.12-30. That
standard provides:
When a potentially dangerous condition
is found it shall be corrected before
equipment or wiring is energized.
Walsenburg does not deny that the inspector correctly described
the condition.
It did, however, deny that its management knew of the
condition, and also asserted that the line was the responsibility of
a local power company. Louis P. Vezzani, who described himself as
"co-owner" of the sand and gravel company, further testified that the
line had supplied power to a trailer home once situated on the pit
site at the instance of the lessor of the site, and that it therefore
served no purpose related to his company•s operation.
I must conclude that the facts nonetheless establish a violation of the cited standard. The undisputed evidence shows that
the last standing power pole to which the 220-volt line in question
was attached also furnished 110 volts of power to the pump for the
diesel tank.
(See photograph, petitioner's exhibit 1.)
Thus, the
power distribution system in question was not totally divorced from
that supplying the Walsenburg operation. Even were this not so,
however, the downed 220-volt line lay on the Walsenburg site and
presented a hazard to its employees. The evidence shows that the
two Walsenburg miners present at the time of the inspection, one
operating a truck, the other operating a loader, had unrestricted
access to the area where the line lay. There were no warning signs
·or barricades to restrict their approach or to give warning. Moreover, the downed line was partially covered by snow - an indication

437

that the line had been on the ground for some time (Tr. 27).
It was Walsenburg's duty to notice the hazard presented by the
line and to take the necessary steps to correct it. This was in
fact easily accomplished shortly after the citation was issued.
Walsenburg simply notified the San Isabel Electric Company, whose
employees de-energized the line.
Citation No. 2009814
On his March 3, 1983, inspection, Mr. DeHerrera was accompanied by Inspector Elmer E. Nichols. Inspector Nichols testified that the 110-volt electrical outlet on the power pole near
the diesel fuel tank and pump was not grounded. He therefore
issued a citation charging a violation of the safety standard
published at 30 C.F.R. § 56.12-25. That standard, as pertinent
here, provides:
All metal enclosing or encasing electrical circuits shall be grounded or
provided with equivalent protection.
According to Inspector Nichols, he plugged an outlet tester into
the receptacle on the pole. It showed that the energized outlet
was not grounded. Terrance D. Dinkle, an electrical engineer from
the staff of the MSHA Denver Technical Support Center, testified
at length concerning hazards involved in this and other citations
alleging electrical violations. Mr. Dinkle asserted that fuses or
circuit breakers on circuits which lack proper grounding will not
prevent electrical shock to persons coming into contact with the
circuit, should there be an electrical fault.
Walsenburg presented no evidence on this citation.
dence of record establishes the violation alleged.

The evi-

Citation No. 2098378
Inspector DeHerrera visited Walsenburg's San Aroya Pit again
on March 7, 1983. On that occasion he observed that the electrical
service to the fuel pump at the 500-gallon diesel tank was not an
"explosion type." He therefore charged Walsenburg with a violation
of the safety standard published at 30 C.F.R. § 56.12-2. That
standard provides:
Electric equipment and circuits shall
be provided with switches or other
controls. Such switches or controls
shall be of approved design and construction and shall be properly installed.
In his testimony Inspector DeHerrera indicated that the
electrical connections lacked proper bushings, featured Romex
cable rather than an "explosion type," and that the cable lacked
a grounding wire.

I find no violation. The standard in question is quite specific:
it applies only to switches and controls. The Secretary's
evidence dealt with devices and equipment other than switches or
controls. The inspector spoke of cables and bushings. Perhaps
the bushings referred to were on a switch box or other control enclosure. The evidence, however, was unclear. The Secretary bears
the ultimate burden of proof, and failed to carry it in this instance.
Citation No. 20983 9
During the inspection on March 3, 1983, Inspector DeHerrera
observed that the opening where electrical wires entered the breaker
box on the service to the piesel fuel pump lacked bushings. He
therefore issued a citation charging violation of the standard
published at 30 C.F.R. § 56.12-8. That standard provides:
Power wires and cables shall be insulated adequately where they pass
into or out of electrical compartments.
Cables shall enter metal frames of
motors, splice boxes, and electrical
compartments only through proper fittings.
When insulated wires, other than cables,
pass through metal frames, the holes
shall be substantially bushed with
insulated bushings.
DeHerrera testified that the box was fastened to the power
pole near the pump at about 5 to 5-1/2 feet above ground level.
The standard requires that the openings be bushed, he asserted,
for two reasons. First, without bushings, the metal edges of the
openings may wear away the insulation on the wires, thus creating
a short or fault where bare wire contacts the box. Second, the
wires must be bushed to provide "strain relief." Without the
bushings, he indicated, any pulling or other exterior strain on
the wires could loosen them from their terminal connectors within
the box, thus creating a fault.
Mr. Dinkle, the Secretary's
electrical expert, supported the inspector's testimony. The evidence shows that should an employee touch the box, once a fault
had occurred, he could receive an electrical shock. Dinkle also
testified that where a fault occurs in a circuit, a circuit breaker
or fuse does not provide any assurance that a person coming in
contact with the circuit will not receive a significant shock.
(This particular observation was directed to all citations involving electrical fault hazards.) (Tr. 258).
Walsenburg presented no testimony concerning the citation.
The Secretary's evidence establishes a clear violation of the
standard.

439

Citation No. 2098380
This citation concerns another alleged defect at the diesel
fueling station.
During his visit to the San Aroya site on March 7,
1983, Inspector DeHerrera noted that the 500-gallon diesel fuel
tank rested on a foundation of wooden timbers. DeHerrera believed
th.is condition violated the safety standard published at 30 C.F.R.
56.4-4. That standard, as pertinent here, provides:
Flammable liquids shall be stored in
accordance with standards of the
National Fire Protection Association
or other recognized agencies approved
by the Mine Safety and Health Administration.
According to DeHerrera, The National Fire Protection Codes
(published by the National Fire Protection Association) provide
at chapter 30, section 2-5.l, that timbers may not be used as a
foundation for a flammable liquids tank. The pertinent portion
of the section declares:
Tanks shall rest on the ground or on
foundations made of concrete, masonry,
piling or steel.
DeHerrera testified that the timbers constituting the foundation
appeared to be soaked with diesel fuel, thus posing a fire hazard.
I have a major difficulty with the Secretary's case.
I am not
certain that the standard in question absolutely' forbids the use of
timbers in foundat1ons.
The Secretary's position appears to be
predicated upon that belief. I note that the N.F.P.A. publication
allows tank foundations made of "piling." "Webster's Third New
International Dictionary (1976)" defines a pile as "a long slender
member usu. of timber, steel or reinforced concrete driven into the
ground to carry a load, to resist a lateral force, or to resist
water or earth pressure."
(Emphasis added.)
It also offers the
first definition of "piling" as follows:
"pile driving:
the
formation of (as of a foundation) with piles."
I am thus unable to conclude, as the Secretary would have me
do, that the N.F.P.A. altogether proscribes the use of timbers in
foundations.
On the contrary, timber pilings are apparently welcome.
Similarly, for tank supports above a foundation, timbers may also be
used in some instances. Chapter 30, section 2-5.2 of the Code,
which pertains to such supports for tanks storing flammable liquids,
provides in part:

Single wood timber supports (not cribbing)
laid horizontally may be used for outside
aboveground tanks if not more than 12 inches
high at their lowest point.

440

No e~idence in the present case clearly describes the function
of the timbers which caused the inspector's concern. The inspector
said only that the tank was not on a foundation that complied with
the N.F.P.A. requirement because it was on "[t]imbers - wooden
timbers" (Tr. 90).
Study of the photograph of the tank and its surroundings
(respondent's exhibit 1) is not helpful.
It shows that the pump
adjacent to the tank is on a shadow-obscured platform of some sort,
but the foundation of the tank itself is not visible. The tank
appears to rest upon the ground.
Absent evidence that the timbers referred to were not pilings
driven into the earth, I cannot hold that the Secretary proved a
violation here. The citation will be vacated.
Citation No. 2098581
On March 7, 1983, Inspector DeHerrera noted that the drive
flywheel on Walsenburg's sand classifier machine lacked an adequate
guard. He cited this condition as a violation of the safety
standard published at 30 C.F.R. § 56.14-1. That standard provides:
Gears; sprockets; chains; drive, head,
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.
According to DeHerrera, the 36-inch flywheel was located about
3 to 5 feet above the ground. He acknowledged that the rim of the
wheel was properly guarded. The face of the wheel and the shaft,
however, were not protected. DeHerrera maintained that as the
classifier was in operation with two employees in the vicinity, the
unguarded portion of the flywheel presented a hazard to those employees. Specifically, he believed that an employee checking the
operation of the machine, or simply walking by, could stumble into
the exposed, rotating parts and suffer injury.
For Walsenburg, Mr. Louis P. Vezzani testified that 'the center
of the large flywheel was 7 feet above the ground, and that the
operator's station was a considerable distance away. When the
operator was not at his panel, Vezzani said, he would shut down
the machine and thus could not be endangered. He did acknowledge,
however, that there was some possibility that employees could come
in contact with the wheel (Tr. 110).
The credible evidence establishes that although the hazard was
not great, Walsenburg violated the guarding standard. Whereas the
wheel did not present a great threat of injury, neither could it be
said that it was sufficiently guarded by the rim guard, or that it
needed no guard because of an inaccessible location.

441

Citation No. 2098582
Inspector DeHerrera, on his March 3, 1983, inspection, observed that the 220-volt electrical services to the feed conveyor
and classifier 1/ drive motor were not protected by bushings where
the wire or cable left the junction box. He also found that the
box lacked a cover and was not weatherproof. He therefore issued
a citation charging a violation of the safety standard published
at 30 C.F.R. § 56.12-8. The text of that standard has been previously set forth in this decision in the discussion of citation
no. 2098379.
It requires power cables and wires to be "insulated
adequately where they pass in and out of electrical compartments."
It similarly provides that cables shall enter compartments or other
enclosures only through "proper fittings." Finally, it requires
that "insulated wires other than cables" must be "substantially
bushed with insulated bushings" where they pass through holes in
metal frames.
For the reasons which follow, I must hold that no violation
was proven. The cited standard makes a clear distinction between
insulated wires and cables. It requires bushings for wires but
not for cables. For cables it merely requires "proper fittings."
The evidence describing the lines in question was confusing.
The inspector himself repeatedly referred to them as "cables."
Mr. Vezzani also spoke of them as cables and insisted they were
encased in conduit. Upon the record made, I must conclude that
the Secretary did not establish that the lines were "wires" rather
than "cables. 11 Thus, the bushings violation was not proved.
That the junction box lacked a cover was undisputed. The
only part of the standard which could conceivably apply to that
defect, however, is that part which declares that cables "shall
enter •.. electrical compartments only through proper fittings."
Rather plainly, the provision applies only to that part of an
enclosure through which the cable enters. I do not read it to
impose requirements concerning other construction features of the
box itself. Perhaps this provision would have had relevance had
it been shown that the cable entered the box through the space
left open by the missing cover, rather than through the bottom,
top, or side.
There was no such evidence, however.
I nave the same problem with whether the box was "weatherproof." The Secretary's electrical engineer, Mr. Dinkle, made
out a convincing case of the need for weatherproofing in such an
installation (Tr. 242-244). He indicated that the box was not of
an "approved design" because of the lack of full enclosure of

1/ Ultimately, the inspector acknowledged that the classifier was
not involved (Tr. 128).

442

connections and rubber gaskets to keep out moisture. His testimony,
however, was directed to citation no. 2098378, earlier discussed
in this decision, which involved 30 C.F.R. § 56.12-2. That is a
standard which speaks to "approved-design and construction" (Tr. 245246). Perhaps the term "proper fittings" referred to in the instant
standard is a term of art among electrical experts, one broad enough
to encompass weatherproofing. I doubt it, however. If it is, the
record lacks expert testimony sufficient to demonstrate such a
meaning. As the record stands, no violation is proved because the
cited standard appears inapposite.
Citation No. 2098583
This citation also arose out of Inspector DeHerrera's visit
to the pit on March 7, 1983. His inspection of the drive unit for
the feeder conveyor revealed several pinch-points which were not
guarded. Specifically, the drive chain and sprockets lacked any
guarding. Also, the feeder mechanism itself - two large moving arms
on an eccentric wheel - was unguarded. Finally, the tail pulley on
the feed conveyor was unguarded. DeHerrera cited these conditions
as violations of 30 C.F.R. § 56.14-1. That standard, requiring
guarding of moving parts of machinery, is set out in the discussion
of citation No. 2098581.
Mr. Vezzani, for Walsenburg, pointed out that guarding in the
form of barrier-railings was available for the cited areas. The
railings, however, were unbolted and lying on the ground (Tr. 140141). The inspector agreed that the railings (which were later
installed to abate the alleged violations) would have been adequate
guards (Tr. 139).
The evidence shows that Walsenburg violated the standard as
alleged. The equipment was in operation and two employees of the
operator were in the general vicinity. Some of the moving parts
were partially guarded by virtue of their locations with respect
to metal frames or o"ther parts of the equipment. Such partial
guarding by location, however, is not the equivalent of the full
guarding required by the standard. There was a small but nevertheless realistic possibility that employees could have been injured.
Citation No. 2098584
On March 7, 1983, Inspector DeHerrera cited a grounding defect
in the 110-volt service furnishing electric power to the diesel
pump at the fueling station described earlier in this decision.
The citation alleged a violation of the grounding standard set out
at 30 C.F.R. § .56.12-25. The standard is set out in full in the
discussion of citation no. 2009814 in this decision.

443

According to Inspector DeHerrera, only two conductors went
into the motor makeup box. The cable in question had a third
or "ground" wire, but it was not attached to the motor frame to
complete the ground. Presence of a circuit breaker, he testified,
did not furnish protection equal to a proper grounding arrangement.
Walsenburg presented no evidence directed to this citation.
The Secretary's evidence clearly establishes the violation
charged. The circuit had no ground as required by the standard,
and the presence of a circuit breaker does not provide electrical
fault protection equivalent to a ground.
Citation No. 2009968
On March 7, 1983, MSliA electrical specialist Larry J. Day
found that the electric cable providing power to five 220-volt
three-phase motors included an energized wire insulated with a
green covering. Green wires, he testified, are universally used
for noncurrent-carrying ground wires. Anyone familiar with electrical practice, according to Mr. Day, would, during maintenance,
assume the green line was nonconductive. Since it was energized,
however, a repair person could receive a severe shock. This would
most likely occur should the green wire be attached to the equipment frame, as is the common practice. Mr. Dinkle, the Secretary's
electrical engineering expert, supported Mr. Day's analysis.
The citation charged a violation of the standard published
at 30 C.F.R. § 56.12-30. That is the standard, discussed in connection with citation no. 2098376, which requires correction of
"potentially dangerous conditions" in wiring or equipment.
Gary M. Vezzaniv who described himself as an electronics
engineer with three associate degrees in electronics, testified
for Walsenburg. He agreed that it was improper to use the green
wire. He suggested, however, that a careful repairman would not
rely on the color of the wire, but would routinely test all wires
to determine which were energized. He also appeared to suggest
that if the energized green wire was mistakenly attached to the
equipment frame, the repairman would be saved from injury by the
circuit breaker. He disagreed with certain statements by the
government's Mr. Nichols concerning grounding. Grounding, however,
was not mentioned in the citation and is not an issue here.
I must conclude that the evidence establishes the violation
charged. Walsenburg admits that the green wire was improperly
used. I do not find credible the notion that repairmen would not
rely on the color-coding of electrical wires. For the reasons
discussed earlier in this decision, neither do I accept the proposition that circuit breakers can protect workers from electrical
shocks from circuit faults.
Such faults could develop from handling
the energized green wire in the belief that it was a ground.

444

Citation No. 2009970
On March 7, 1983, MSHA electrical specialist Larry Day issued
a citation charging a violation of the safety standard published at
30 C.F.R. § 56.12-4. That standard, as pertinent here, provides:
Electrical conductors exposed to
mechanical damage shall be protected.
According to Day, a three-wire Romex cable attached to the side
of a power pole was exposed to damage from vehicles. He testified
that he saw cuts on the cable covering, and that protection from impact should have been provided by running the exposed lower 8 feet
of the cable through a rigid pipe or flex pipe. If the wires were
laid bare by an impact, he maintained, a fault could result which
could energize the ground wire or cause a fire. This could endanger
the two employees in the area.
Walsenburg presented no testimony on this citation. The evidence establishes that the respondent violated the standard in the
manner alleged.
Citation No. 2009972
Day also cited respondent with a violation of the guarding
standard, 30 C.F.R. § 56.14-1, for an unguarded drive pulley powering
the belt drive operating the shaker screen. He was unable to recall
the height of the pulley from the ground, but could recall that it
was accessible to persons in the area. The pulley had no guarding,
he testified, and could therefore catch the clothing, hands or fingers
of any worker who might happen by.
Walsenburg furnished brief testimony on this citation by Louis
Vezzani. He asserted that the drive pulley was ordinarily 8 feet
above the ground, and thus above the reach of workers. He admitted,
however, that on March 7, 1983, the day of the inspection and citation,
excess sand accumulations near the shaker screen had raised the ground
level sufficiently to put the pulley within reach of persons standing
near the equipment.
The evidence shows that the standard was violated as alleged.
Citation No. 2009973
Day, on the March 3, 1983, inspection, also cited what he described as a guarding violation on the tail pulley of the shaker belt.
The belt was moving and carrying material at the time he observed it.
He maintained that the lack of a guard on the pulley constituted a
violation of 30 C.F.R. 56.14-1, the guarding standard discussed several times previously in this decision. He recalled the height of the
tail pulley to be 6 to 8 inches above the ground. The two employees
who were running the plant, he testified, were exposed to the hazard
created by this unguarded pinch-point.

445

For Walsenburg, Louis Vezzani testified that the part in
question was not a tail pulley, but a roller which was best described as a mere shaft. Moreover, he contended that the end of
the roller was 6 inches inside the frame of the conveyor, and was
thus guarded by the frame.
Day disputed this, claiming that
despite the frame a worker walking by could catch loose clothing
between the roller and belt and thus suffer injury. Vezzani did
acknowledge that this could occur (Tr. 235-236).
Plainly, the violation here was minor, but there was nevertheless a foreseeable possibility of some injury.
The citation
must be affirmed.
SIGNIFICANT AND SUBSTANTIAL ISSUE
The Secretary contends that one of the 13 violations alleged

in this case should be considered "significant and substantial,"
as that term is used in the Act.
The charge is made in connection
with citation no. 2098376, which involved the downed 220-volt
electric line.
The Commission in Cement Division, National Gypsum Company,
3 FMSHRC 822 (1981), set out the test for determining whether a
violation, in the words of the statute, 11 • • • could significantly
and substantially contribute to the cause and effect .•• of a mine
safety or health hazard." Such a violation, the Commission held,
is one where there exists" •.• a reasonable likelihood that the
hazard contributed to will result in an injury or illness of a
reasonably serious nature."
For the reasons which follow, I conclude that the violation
established does not rise to the ''significant and substantial"
levelo
The evidence shows that the energized 220-volt line, some
of whose supporting poles had collapsed during the winter, did
lie on the ground within the pit area.
The evidence also shows,
however~ that its path did not take it close to any fixed machinery
locations or other likely work places.
It was attached to a pole
next to the diesel fueling station, but that pole was still standing.
Thusu the only likely exposure would occur if a loader operator
should drive his vehicle over the downed portion of the line.
Mr. pinkle, the Secretary's principal electrical expert,
pointed out that rubber tires; contrary to common belief, have
some conductive properties because of their high carbon content.
He also explained, however, that the shock received from a driver's
running over the downed line would likely amount to no more than
a "tingle" (Tr. 256).
That slight shock might be enough to cause
a driver to lose control of the vehicle, which could lead to further
physical harm, he testified.

446

This witness also indicated that a pedestrian close to the
downed wire on damp earth could experience a minor shock (Tr. 255).
On the other hand, if a person should absorb the full 220-volt load
of the line, he would likely be electrocuted.
I find Mr. Dinkle's testimony credible. In the context of the
other evidence, however, it does not· tend to demonstrate that any
likely encounter with the wire would 11 • • • result in an injury of a
reason?.bly serious nature." On the contrary, it tends to show that
injury, if any, would likely be transient and mild.
It must be
remembered that the sand processing plant was not yet in seasonal
operation when the inspector issued his citation (March 3, 1983).
Only two employees were on the grounds, and they were merely loading
and trucking away sand from distant storage piles. It is not
probable that they would have had occasion to be near the line at
all. Had one of the workers.approached it, it is overwhelmingly
likely that he would merely have driven across it in a rubber-tired
vehicle and have received, at most, a mild shock. The chance that
a momentary loss of control of the vehicle from the shock would
have resulted in an injury accident was remote. In the area of the
pit where the line lay, there were really no objects to run into.
It is surely true that if a person were to.absorb the full
220-volts carried by the line he would, as Mr. Dinkle said, be
electrocuted. No witness, however, explained how this might happen.
The evidence shows that most of the insulation was intact. Presumably, a severe or lethal shock could occur should a person decide for some reason to handle the line at a spot where the insulation
was defective.
I must note, however, that such an incident would
have been most unlikely in view of the limited loading activity in
progress at the time in question. One could, after all, conceive
of similar unlikely possibilities for each of the other electrical
violations in this case which the Secretary chose not to cite as
"significant and substantial. 11
DETERMINATION OF APPROPRIATE PENALTIES
Except for the single citation alleged to have been "significant and substantial," (citation 2098376), the Secretary proposes a
civil penalty of $20.00 for all violations. For that single exception, the proposal is for $68.00.
Section llO(i) of the Act requires the Commission, in penalty
assessments, to consider the operator 0 s s
, its negligence, its
good faith in seeking rapid compliance, its history of prior violations, the effect of a monetary penalty on its ability to remain
in business, and the gravity of the violation itself.
The evidence shows that the Walsenburg operation was quite
small.
It further shows that the operator achieved speedy abatement
of all the violative conditions. The operator had no history of
prior violations. No evidence was presented concerning the effect

447

of payment on the proposed penalty on Walsenburg's ability to remain
in business. I must agree with the Secretary that there were no
significant differences in the degree of negligence present in each
of the violations for which the $20.00 penalties were sought. I
conclude that the negligence in each instant was in the low-tomodera te range. I also agree that the gravity of each of those
violations was similiar and was
.,.. not deserving of a weighty penalty .
In each instance only the sam• two employees were exposed to the
hazard, and their exposure was in terms of access to the dangerous
conditions. Actual contact with the unguarded parts of equipment,
or with the defective electrical wiring or fixtures was not likely.
For these reasons I conclude that a modest penalty of $20.00 is
appropriate for each of those violations for which that sum was
proposed.
That leaves for determination citation no. 2098376, for which
the Secretary proposed the $68.00 penalty. As previously indicated,
I am not convinced that the 220-volt distribution line which had
fallen to the ground constituted a "sigriificant and substantial"
violation under the Act.
I must now go further and declare that
that violation neither involved more operator negligence nor more
gravity than the other violations proved by the Secretary. While
the line did cross the grounds of the worksite, it was unlikely that
any worker would encounter it unless he should drive across it in a
rubber-tired vehicle. The probability that the vehicle operator
would receive more than a mild electrical shock was quite remote.
Consequently, the appropriate penalty for that violation is also
$20.00.
CONCLUSIONS OF LAW
Based upon the entire record herein, and in accordance with
the factual determinations contained in the narrative portion of
this decision; the following conclusions of law are made:
(1)

The Commission has the jurisdiction to decide this matter.

(2) The respondent, Walsenburg, violated the mandatory safety
standard published at 30 C.F.R. § 56.12-30 as alleged in citation
no. 2098376.
(3)
The violation was not "significant and substantial" within
the meaning of section 104(d) of the Act.
(4) Walsenburg violated the mandatory safety standard published
at 30 C.F.R. § 56.12-25 as alleged in citation no. 2009814.
(5} Walsenburg did not violate the mandatory safety standard
published at 30 C.F.R. § 56.12-2 as alleged in citation no. 2098378.

448

(6)
Walsenburg violated the mandatory safety standard
published at 30 C.F.R. § 56.12-8 as alleged in citation no.
2098379.

(7) Walsenburg did not violate the mandatory safety
standard published at 30 C.F.R. § 56.4-4 as alleged in citation
no. 20983 80.
(8) Walsenburg violated the mandatory safety standard
published at 30 C.F.R. § 56.14-1 as alleged in citation no.
2098581.

(9) Walsenburg did not violate the mandatory safety
standard published at 30 C.F.R. § 56.12-8 as alleged in citation
no. 2098582.
(10)
Walsenburg violated the mandatory safety standard
published at 30 C.F.R. § 56.14-1 as alleged in citation no.
2098583.
(11) Walsenburg violated the mandatory safety standard
published at 30 C.F.R. § 56.12-25 as alleged in citation no.
2098584.
(12)
Walsenburg violated the mandatory safety s~andard
published at 30 C.F.R. § 56.12-30 as alleged in citat~on no.
2009968.
(13) Walsenburg viola.ted the mandatory safety standard
published at 30 C.F.R. § 56.12-4 as alleged in citation no.
2009970.
(14)
Walsenburg violated the mandatory safety standard
published at 30 C.F.R. § 56.14-1 as alleged in citation no.
2009972.
(15)
Walsenburg violated the mandatory safety standard
published at 30 C.F.R. § 56.14-1 as alleged in citation no.
2009973.
(16)
The reasonable and appropriate civil penalty for
each of the violations affirmed in this case is $20.00.
ORDER
Accordingly, citations numbered 2098378, 2098380 and
2098582 are ORDERED vacated; all other citations are ORDERED
affirmed~ and Walsenburg is ORDERED to pay the Secretary of
Labor a civil penalty totaling $200.00 within 30 days of the
date of this decision.

John A. Carlson
Administrative Law Judge
449

Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U.S. Department
of Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
Ernest U. Sandoval, Esq., P.O. Box 541, Walsenburg, Colorado 81089
(Certified Mail)

450

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

March 26, 1986

CIVIL PENALTY PROCEEDING

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

Docket No. WEST 85-79-M
A.C. No. 05-03920-05501

v.

Vezzani Pit Mine

WALSENBURG SAND & GRAVEL
COMPANY, INC.,
Respondent
DECISION
Appearances:

Robert J. Lesnick, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Petitioner;
Ernest u. Sandoval, Esq., Walsenburg, Colorado,
for the Respondent.

Before:

Judge Carlson

This case, heard under the provisions of the Federal Mine
Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the
Act), arose from an inspection of respondent's gravel pit on
December 5, 1984. On that day a federal mine inspector issued a
single citation for the violation of a mandatory safety standard
promulgated by the Secretary of Labor pursuant to the Act. The
respondent, Walsenburg Sand & Gravel Company, Inc. (Walsenburg),
contested the Secretary's petition for imposition of a $20.00
civil penalty4 The case was heard at Pueblo, Colorado, with
both parties presenting evidence. Both parties waived the filing
of briefs or other post-hearing submissions.
REVIEW AND DISCUSSION OF THE EVIDENCE
On December 5, 1984, two federal mine inspectors, Ralph
E. Billips and Carl Baron, visited Walsenburg's gravel pit in
Huerfano County, Colorado. In the course of inspecting the
company's heavy equipment, they observed a fluid leak from the
rear differential of a Hough 70 Series front-end loader. The
leak was on the right side of the differential, and the fluid
was present on the exterior of the right-rear wheel.
The four-wheeled loader was dumping rock into the rock
crusher at the time of the inspection. The two inspectors knew
that the loader had drum brakes in the rear, and feared that
the leaking differential fluid - they believed it came from a
defective seal - would reduce the efficiency of the right-rear
wheel brakes, or render them wholly inoperable. This, they
reasoned, would endanger the operator of the loader.
451

Inspector Billips stopped the loader operator and
questioned him about the brakes. According to Billips, the
operator replied that the leaking fluid " ••• was definitely
affecting the right-rear brakes of the loader" (Tr. 8-9).
Later, Billips testified that the loader operator said that
the right-rear brakes were 11 completely inoperable" (Tr. 15).
Inspector Baron, who was present during the conversation,
indicated that the operator said" ••. he was having problems
with the right-rear brake" (Tr. 36).
Based upon this information, Inspector Billips issued a
citation charging Walsenburg with violation of the mandatory
safety standard published at 30 C.F.R. § 56.9-2. That standard
provides:
Equipment defects affecting safety
shall be corrected before the equipment is used.
Mr. Louis Vezzani testified for Walsenburg. He indicated
that he is the "owner and operator" of the company. Vezzani
acknowledged that the rear differential was leaking some fluid.
He testified, however, that he and a mechanic pulled the rightrear wheel and examined the brakes after Billips issued the
citation. The bands and drums, he claimed, were wholly free
of fluid and were in proper working order. He said that the
seal itself was not leaking; but he found that the plate upon
which the seal was seated had a small "ding" which accounted
for the escape of differential oil. He found nothing which would
impair the effectiveness of the brake. He and his helper repaired the "ding," and replaced the seal, but did nothing more
(Tra 22-24)

a

Moreover, according to Mr. Vezzani, no employee had reported to him any difficulty with the loader's brakes.
It is clear from the inspectors' testimony that they did
not contend that the mere presence of differential fluid on the
exterior of the rear wheel was a defect "affecting safety" under
the cited standard. Otherwise they would not have gone on to
explain the hazards of brake failure associated with the fluids
reaching the interior of the wheel and specifically the bands
or drums. Put another way, the presence of the fluid raised in
their minds a possibility that effective braking was jeopardized.
They found confirmation for that suspicion in the admission of
the operator of the loader that the right-rear brake was defective.

452

Counsel for Walsenburg maintained that the declarations of the
loader operator should be excluded as hearsay. The statements of
the operator were clearly admissible, however, under 80(d) (2) (D) of
the Federal Rules of Evidence as statements of an agent concerning
a matter within the scope of his employment. Such statements are
not hearsay under the Rule. While the employee's statements were
admissible, the question confronting us here is one of testimonial
weight.
Mr. Vezzani testified that he inspected and tested the brakes
and found no defect. Mr. Vezzani was a forthright witness, and I
found his testimony convincing.
I do not doubt that the loader
operator spoke as the inspector said he did.
Unlike Vezzani, however, who was present and subject to cross-examination, neither
the accuracy of the operator's observations or his possible motives
or biases were open to courtroom scrutiny.
I

proofs.

therefore conclude that the Secretary has failed in his
The citation must be vacated.
CONCLUSIONS OF LAW

Upon the entire record herein, and in accordance with the
factual findings contained in the narrative part of this decision,
the following conclusions of law are made:

(1)
matter.

This Commission has jurisdiction to hear and decide this

(2) Walsenburg did not violate the standard published at
30 C.F.R. § 56.9-2 as alleged.
ORDER
Accordingly, the citation in this case is ORDERED vacated and
this proceeding is dismissed.

ohn A. Carlson
dministrative Law Judge
Distribution:
Robert J. Lesnick, Esq., Office of the Solicitor, U!S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
Ernest u. Sandoval, Esq., P.O. Box 541, 110 E. 6th Street, Walsenburg,
Colorado 81089
(Certified Mail)
/ot

453

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

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

M
h
S
arc 2 8 I 19 6

CIVIL PENALTY PROCEEDING
Docket No. WEST 84-70-M
A.C. No. 02-01918-05501

v.

Gravel Pit Mine

GENERAL ROCK & SAND,
Respondent
DECISION
Appearances:

Theresa Kalinski, Esq., Office of the Solicitor,
U.S. Department of Labor, Los Angeles, California,
for the Petitioner.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and Health
Administration, charges respondent with violating safety regulations
promulgated under the Federal Mine Safety and Health Act, 30 U.S.C.
§ 801 et seq., (the Act).
After notice to the parties, a hearing on the merits took place
in Phoenix, Arizona on January 28, 1986.
Procedural Matters
At the commencement of the hearing the Secretary moved for dismissal of the respondent 0 s notice of contest on the grounds that the
operator had failed to appear at the hearing.
The judge denied the motion and directed that the Secretary
proceed with his proof. Subsequently, the judge issued an order to
show cause directed to respondent.
The respondent failed to reply
to tb.e ordero
Summary of the Case
Colby Lumpkins, Jr., an MSHA inspector and a person experienced
in mining, inspected respondent on December 14, 1983.
The inspector found that the conveyor was not provided with a
stop cord or barrier. A tension cable could have been used (Tr. 6).
There were two or three workers operating the plant and employees
would be in this area for maintenance purposes.

454

In the inspector's opinion the hazard in this situation was that
it would not have been possible to stop the conveyor if a worker became
entangled in the equipment.
The foregoing facts caused the inspector to issue Citation 2088144
for the violation of 30 C.F.R. § 56.9-7. The regulation provides as
follows:
Unguarded conveyors with walkways
shall be equipped with emergency
stop devices or cords along their
full length.
Inspector Lumpkins further observed that the wires connecting to
the junction box lacked a bushing connection. A bushing serves to
hold the cable steady as well as secure.
It also prevents the cable
from being pulled out. The junction box itself was attached to a
drive motor on a shaker screen.
Its position subjected it to vibration.
In the inspector's opinion this violative condition could cause
the insulation to wear through. Electrical shocks could result if
this occurred (Tr. 8,9}.
The foregoing facts caused the inspector to issue Citation 2088145
for the violation of 30 C.F.R. § 56.12-8. The cited regulation provides
as follows:
Power wires and cables shall be
insulated adequately where they
pass into or out of electrical
compartments. Cables shall enter
metal frames of motors, splice
boxes, and electrical compartments
only through proper fittings.
When
insulated wires, other than cables,
pass through metal frames, the
holes shall be substantially bushed
with insulated bushings.
Inspector Lumpkins further observed an unguarded tail pulley
section. In his opinion both sides of the tail pulley should have
been guarded. Employees could be caught in the unguarded pulley
(Tr. 12).
The foregoing facts caused the inspector to issue Citation 2446500

455

for the violation of 30 C.F.R. § 56.14-1.
vides as follows:

The cited regulation pro-

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.
Discussion
The record establishes a violation of each of the contested
citations. They should be affirmed.
Proposed Civil Penalties
The statutory criteria for assessing civil penalties is contained in 30 U.S.C. § 820(i) which provides as 'follows:
The Commission shall have authority to assess
all civil penalties provided in this Act.
In
assessing civil monetary penalties, the Commission
shall consider the operator's history of previous
violations, the appropriateness of such penalty
to the size of the business of the operator charged,
whether the operator was negligent, the effect on
the operator's ability to continue in business,
the gravity of the violation, and the demonstrated
good faith of the person charged in attempting to
achieve rapid compliance after notification of a
violation.
The record establishes that the operator has no previous adverse history.
In addition, the operator must be considered to be
small inasmuch as it only employs two or three workers. The record
does not present any information concerning the operator's financial
condition. Therefore, in the absence of any facts to the contrary,
I find that the payment of penalties will not cause respondent to
discontinue its business. Buffalo Mining Co., 2 IBMA 226 (1973)
and Associated Drilling, Inc., 3 IBMA 164 (1974). The operator
.was negligent since the violative conditions were open, obvious and
known to the operator from a prior inspection. The gravity of the
violations was high since severe injuries could have resulted from
these conditions. To the operator's credit was its rapid abatement
of the violations.
After considering the statutory criteria, I deem that the
proposed penalties are appropriate.

456

Conclusions of Law
Based on the entire record and the factual findings made in the
narrative portion of this decision, the following conclusions of law
are entered.
1.

The Commission has jurisdiction to decide this case.

2.

Respondent violated 30 C.F.R. § 56.9-7, § 56.12-8 and
§ 56.14-1.

3. The contested citations and the proposed civil penalties
therefor should be
irmed.
ORDER
Based on the foregoing facts and conclusions of law I
following order:

enter the

1.

Citation 2088144 and the proposed penalty of $20 are affirmed.

2.

Citation 2088145 and the proposed penalty of $20 are affirmed.

3.

Citation 2446500 and the proposed penalty of $54 are affirmed.

Respondent is ordered to pay the sum of $94 within 40 days
4.
of the date of this decision.

Distribution:
Theresa Kalinski, Esq., Office of the Solicitor, U.S. Department of
Labor, 3247 Federal Building,· 300 N. Los Angeles Street, Los Angeles,
California 90012
(Certified Mail)
Mr. Merril Jessop, Owner, General Rock & Sand, P.O. Box 237, Page,
Arizona
(Certified Mail)

/ot

457

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
'

OFFICE OF ADMINISTRATIVE LAW JUDGES
333 W. COLFAX AVENUE, SUITE 400
DENVER, COLORADO 80204

M

arc

h

2

B

B
, 19 6

CIVIL PENALTY PROCEEDING

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

SECRE~ARY

Docket No. WEST 85-165
A.C. No. 42-01697-03540

v.

Bear Canyon No. 1 Mine

CO-OP MINING COMPANY,
Respondent
DECISION
Appearances:

James H. Barkley, Esq., Office of the Solicitor,
U.S. Department of Labor, Denver, Colorado,
for the Petitioner;
Carl E. Kingston, Esq., Co-op Mining Company,
Salt Lake City, Utah,
for the Respondent.

Before:

Judge Morris

The Secretary of Labor, on behalf of the Mine Safety and
Health Administration, (MSHA), charges respondent with violating
safety regulations promulgated under the Federal Mine Safety and
Health Act, 30 U.S.C. § 801 et seq., (the Act).
After notice to the parties, a hearing on the merits commenced in Salt Lake City, Utah on February 11, 1986.
At the hearing the parties stated that they had reached a
settlement agreement. No person objected to the proposal.
The citations, the standards allegedly violated, the original
assessments and the proposal dispositions are as follows:
Citation
Number

Stand·ard
C.F.R., Title 30

Assessment

Settlement

2501153

§

77.205(a}

$1000

Vacate

2501155

§

48.7(c)

2000

Vacate

2501157

§

48.5(a)

400

Vacate

2072270

§

77.209

5000

$5000

2072271

§

77.1710(g)

4000

3000

2072272

§

48.5(a)

2000

Vacate

458

Discussion .
In support of his motion to vacate Citations numbered 2501155,
2501157 and 2072272 the Secretary states that the alleged violations
of the training requirement involved a single miner. It is further ·
indicated that the miner in question received such training but that
fact was improperly recorded.
In support of his motion to vacate Citation numbered 2501153
the Secretary states the citation is redundant and such alleged
violations are within the allegations contained in Citation numbered
2072270.
I have reviewed the proposed settlement and I find it is in
order and in the furtherance of the public interest.

·Accordingly, I enter the following:
ORDER
1.

Citation 2501153 and all penalties therefor are vacated.

2.

Citation 2501155 and all penalties therefor are vacated.

3.

Citation 2501157 and all penalties therefor are vacated.

4. Citation 2072270 and the proposed penalty of $5,000 are
affirmed.
5. Citation 2072271 and the penalty, as amended, in the amount
of $3,000 are affirmed.
6&

Citation 2072272 and all penalties therefor are vacated.

Law Judge
Distribution:
James H. Barkley, Esq., Office of the Solicitor, U.S. Department of
Labor, 1585 Federal Building, 1961 Stout Street, Denver, Colorado
80294
(Certified Mail)
Carl E. Kingston, Esq., Co-op Mining Company, 53 West Angelo Avenue,
P.O. Box 15809, Salt Lake City, Utah 84115
(Certified Mail)
/ot

459

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

FEB 271986

DISCRIMINATION PROCEEDINGS

HAROLD J. ATKINS,
Complainant

Docket No. WEST 84-68-DM
MD 82-82

v.

Cyprus Northumberland Project

CYPRUS MINES CORPORATION,
Respondent

DECISION
Appearances:

Mary Gray Holt, Esq., Jolles, Sokol & Bernstein,
Portland, Oregon,
for Complainant;
John F. Murtha, Esq., Woodburn, Wedge, Blakey &
Jeppson, Reno, Nevada,
for Respondent.

Before:

Judge Morris

Complainant Harold J. Atkins, (Atkins), brings this action
on his own behalf alleging he was discriminated against by his
employer, Cyprus Mines Corporation, (Cyprus), in violation of the
Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et
seq. , (the Act ) •
Section 105(c) of the Act, provides in part, as follows:
No person shall discharge or in any other manner discriminate against ••• or otherwise interfere with the
exercise of the statutory rights of any miner ••• because such miner • • • has filed or ma,de a complaint under
or relating to this Act, including a complaint notifying
the operator or the operator's agent, or the representative of the miners ••• of an alleged danger or safety or
health violation ••• or because such miner ••• 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 ••• on behalf of himself or others of
any statutory right afforded by this Act.
After notice to the parties, a hearing on the merits took
place in Reno, Nevada on June 19, 1985.
The parties filed post-trial briefs.

460

Issues
The issues are whether complainant was discriminated against
by respondent in violation of the Act. If such discrimination
occurred, then what damages should be awarded.
Summary of the Evidence
Complainant's Evidence
Harold J. Atkins, 43 years of age and inexperienced in
mining, was hired by Cyprus on July 9, 1981. His initial duties
included utility work and cleaning the leach pads. His activities also involved work in the ADR l; unit where the utility crew
helped mix cyanide and haul water. -The water, dumped into a
preholding tank, feeds the boiler (Tr. 34-37, 41).
After three months Atkins transferred to the pit as a grater.
operator where he remained about 2 1/2 to 3 months (Tr. 37).
About October 1, 1981, because of higher pay, Atkins
transferred to the ADR plant as an operator (Tr. 38>. He had no
previous experience and the foreman trained him to run the mill
(Tr. 39). The work process in the ADR was described as follows:
material containing gold and precious metals enters a preg pond
from the leach pads. The material then goes into the ADS circuit.
Solution is filtered through and captured in the carbon (Tr. 39).
I

After a time the material is moved into a preheat holding
tank and later transferred to a strip tank. The solution is then
heated by a boiler and it then goes to electrowind where the gold
is removed (Tr. 40). The procedures include stripping, reclaim~
ing and preheating. The stripping process was almost continuous
(Tr. 40, 42) •
After two or three weeks in the ADR plant Atkins experienced
"nuisance" from the ammonia released in the stripping process.
He had headaches; in addition, his nose was dry and bothering him.
Since he felt the condition was minor he did not see a doctor at
that time (Tr. 41, 42).
1

Atkins was elected to the mine safety committee and attended
his first meeting in February 1982. The Committee discussed
first aid, inadequate ventilation and communications in event of
emergencies. When Atkins applied for the foreman's position he
was told he could not remain as a member of the committee if he
received the promotion (Tr. 42-44, 48).
1/ ADR: an acronym for absorption, deabsorption and refining CTr.
254).

'461

Atkins first became concerned about mercury because of
workers Eagle, Legace and Bowers. Worker Eagle pointed out that
the mercury (which could be seen) was accumulating in ADR tank
No. 1. Legace spoke to Atkins about his dizziness and other
problems which he related to the ADR work (Tr. 44, 45, 235).
Atkins thought Legace's physical problems and symptoms might
be relevant to a worker in the ADR because of the carbon, the
open tanks and the refining process (Tr. 46, 47). Atkins thought
he was also exposed to mercury. Legace said it should be checked
out. He further recommended that Atkins and anyone else in the
ADR contact a doctor. This was the reason Atkins sought medical
attention (Tr. 47).
Sometime in April, about the time of the discussions with
Legace, Atkins thought he had a physical problem. The buildup of
the ammonia was progressing to a point where he knew he should
have his sinuses checked. His nose was dry all of the time and
he was having breathing problems. Additional symptoms included
headaches, dizziness and blurred vision. Neither food nor coffee
tasted right (Tr. 49-51).
Most of the time during his stay in the ADR, Atkins' main
problem and concern was exposure to ammonia fumes (Tr. 120; Ex.
R23, pg. 2). MSHA did not issue any citations for excessive
levels of ammonia (Tr. 121).
Atkins visited Dr. Horgan on April 24, 1982. A quantitative
test for mercury showed a level of 65.
Industrial guidelines
indicate an acceptable level is under 150. A toxic level is
above 150. Atkins wasn't satisfied with the doctor's answers (Tr.
193-196; Ex. RS).
On April 29, 1982, Atkins had a quantitative test from Dr.
Andrews. The doctor stated that 65 was high and he indicated the
State level was 150 milligrams. Atkins knew Legace was experiencing problems with a level of 86 or 87 (Tr. 49-53).
Atkins was the day foreman when MSHA inspector Frank B.
Seale came on the premises on May 4, 1982. A 3M tag was used to
test for mercury. There were no fans and the inspector, according to Atkins, was "staggered" at some of the readings (Tr. 60,
61, ?21).
Atkins was not aware of the later MSHA visit on June 14.
But in the interim Cyprus had taken corrective measures: these
included warning signs, fume surveys, mercury testing and
respirators (Tr. 223, 224, 318).
Within two or four days of the violation Atkins stopped at
Seale's office to talk about the testing equipment. He was also
interested in seeing the MSHA books. Seale gave Atkins copies of

462

the Cyprus citation (Tr. 61-63). The citations had not been
posted in the mine (Tr. 63). Atkins later received a full documentation from the MSHA Arizona office (Tr. 64).
There was probably more concern in the plant for ammonia
than for mercury. There was no ventilation and you could feel
the ammonia instantly (Tr. 64, 65).
After the MSHA inspection the company took care of the
problem to a large degree <Tr. 65).
On June 9, 1982, Atkins visited Dr. Andrews, a pulmonologist.
Complaints to Andrews included chemicals, ammonia,
cyanide fumes and exposures to mercury. Complete blood and urine
tests failed to confirm mercury poisoning.
The blood mercury
level was identified as less than 1. The reference range is less
than 2.6; the level is potentially toxic if it is over 2.6 (Tr.
202-204; Ex. Rl4).
On June 10, 1982, Dr. Givens, a company doctor, gave Atkins
a general physical examination. The symptoms exhibited by
Atkins, which all occurred about June 10, included nausea,
colitis and split vision. The doctor was more interested in
writing than in listening so Atkins did not tell him all of his
symptoms (Tr. 54, 69, 70). Atkins showed Dr. Givens the
quantitative test. He stated that things were "alright" (Tr.
55). Dr. Givens also told Atkins that his health was generally
excellent. Dr. givens did not comment on the symptoms (Tr. 55).
On June 29, 1982, Atkins saw Dr. Badshah, his family
physician, to whom he also showed the quantitqtive test. Dr.
Badshah diagnosed Atkins' condition as colon colitis. He also
had a lower and upper G.I. performed as well as a rectal
examination. The blood tests forwarded to Dr. Badshah by Dr.
Andrews were normal (Tr. 55-58, 65, 215).
Atkins was concerned about his health and he mentioned to
superintendent Leveaux that he would like to temporarily leave
the ADR because of his health. Leveaux said management would
need a doctor's statement to that effect (Tr. 65-67, 238).
Atkins believed that the severity of the colon problem was
worsening, and the condition was playing on his nerves. Atkins
felt the ADR was unsafe for him because his medical problems
started there and they were not clearing up.
He was having split
vision, mostly in the right eye. This occurred four times in a
30 day span just after he started going to Dr. Badshah (Tr. 68,
69, 242). Badshah had suggested Atkins contact Dr. Schonders, an
ophthalmologist. The specialist, in turn, suggested that Atkins
go to the University because the problem was complicated (Tr. 69,
213). Dr. Schonders, as well as Doctors Horgan, Andrews and
Givens failed to confirm mercury poisoning. But Or. Badshah said
it was possible (Tr. 214, 220).

463

Atkins returned to Dr. Badshah on July 9, 1982, where he related the same symptoms; namely, exposure to chemicals including
ammonia, cyanide and fear of mercury exposure. Dr. Badshah gave
Atkins a note which stated:
To whom it may concern: Jim Leveaux. This patient is
having cramping, abdominal pains, nausea. On exam there
is marked spasticity of the colon. He is advised to
avoid exposure to chemicals which are likely to aggravate
this condition. (Tr. 71, 72, 215, 216; Ex. R23).
Leveaux looked at the doctor's note and stated it would be
necessary to talk to Appelberg, the Cyprus personnel manager (Tr.
73, 74). Appelberg told Atkins he would transfer him to utility
but cut his pay. In the ensuing discussion Atkins claimed this
was a medical situation and his miner's rights guaranteed that he
keep his foreman's pay in the utility job. Appelberg agreed to
the transfer (Tr. 73-79). Atkins went to utility thinking he
would retain his foreman's pay (Tr. 126-127).
The next day Appelberg told him his pay was cut. He could
either go back into ADR, leave the property, or be fired. Rather
than be fired Atkins returned to the ADR. Atkins also stated he
returned to utility the next day (Tr. 73-79).
One day before he was terminated Atkins explained the
ultimatum and medical situation to MSHA inspector Frank Seale at
the MSHA office. The next day (July 15) Atkins was told to work
in the ADR or be fired (Tr. 78-81).
Before July 15th, between the two MSHA inspections, Atkins
had told management that it was unsafe to work in the ADR. On
the day he was terminated he did not say it was unsafe because he
was more concerned about getting a note from the doctor than in
closing down the ADR (Tr. 243).
Atkins also told Appelberg that he needed to get out of the
ADR. It was unsafe for him <Tr. 238).
Atkins confirmed the contents of the typewritten note given
to him by Appelberg when he was terminated and as well as his
handwritten reply requesting an additional examination by a
company doctor before he would return to the ADR (Tr. 112, 117,
118, 119; Ex. C21, R24).
Atkins was fired on July 15 as he refused to work in the ADR.
The evidence contains a two page medical report, dated July 16,
1982, from Dr. Nur Badshah. The report states, in part, as
follows:
IMPRESSIONS:
1. Loss of central vision of right eye, due to optic
neuritis of the right eye, etiology most probably toxic
neuritis due to metallic poisoning.
464

2. Occult lower GI bleeding, probably due to gastroenteropathy related to metallic poisoning.
3.

Spastic colitis.

So far, I have not received the copies of the report from
the pulmonologist. I recommend that patient needs to be
further evaluated by a neurologist, because metallic
poisoning can cause nervous system changes affecting
especially the cerebellar system. This should be
thoroughly evaluated by a neurologist. I also recommend
that the patient should be thoroughly evaluated by a
gastroenterologist for his gastrointestinal symptoms.
Until he is further evaluated by a neurologist and
gastroenterologist, patient is advised to avoid contact
with chemicals and he has been given a note to that
effect on 7-9-82. (Exhibit Cl4).
Atkins believed he suffered mercury poisoning in 1982. His
quantitative test was 65. He could not state whether the ADR was
a safe place to work in July 1982. When he discussed termination
with Appelberg on July 15, 1982, he may not have claimed that it
was unsafe to work in the ADR. But at the time of that
discussion he believed the levels were close to acceptable and it
could have been perfectly safe in the ADR (Tr. 109). Atkins
would go back in the ADR today (Tr. 109-110). Further, he would
have gone back if there hadn't been a problem (Tr. 124).
Before Atkins moved from Round Mountain he would have
accepted a job in the ADR if it had been offered to him. He
would not have gone back to work in the ADR in August or
September 1982 because of a possible NIC medical evaluation (Tr.
99-100)0
Atkins last hourly wage at Cyprus was $10.35 or $11.47 as
the ADR foreman.
If he had not been fired he would have earned
$36,000. After being laid off in two months, Atkins found employment with Ray Dickinson earning $5 an hour. He worked there
two and one-half months (Tr. 80-85). He was also employed at
Teague Motor Company in 1984 earning $800 per month. In
addition, he had a county job for three months earning $800.
After the county job Atkins received unemployment compensation.
He has not worked since that time except about eight months ago
he occasionally played in a band on weekends. This part-time
work pays $80 a weekend (Tr. 80-85, 94, 97, 98; Ex. C21, C27,
C28). Atkins "guesses" that he has earned $300 playing in the
band since he was terminated by Cyprus (Tr. 94).
The 1040 U.S. income tax returns for 1981 and 1982 show, respectively, wages of $12,924 and $15,639 (Tr. 89; Ex. C25, C26).

465

Atkins' trailer had been gutted before he acquired it in
1972 or 1973. At that time he paid $4,000 for it. He fixed it
and estimated its value at $8,000. He sold it for $4,000 because
there was pressure on him to leave the company property (Tr. 87,
93, 94).
After he sold the trailer Atkins moved back to Oregon three
and one-half months after he was terminated. There were two
trips involved which cost him $800 to $900 for trailer rentals
(Tr. 88, 109-110).
Atkins acknowledges that he received a written notice of
having had eight absences in the previous twelve months (Tr. 114;
Ex. R22).
Mrs. Atkins testified that her husband's health problems
began in 1982. He complained and became irritable. Additional
symptoms were mostly abdominal cramping and nasal headaches. She
related his ill health to conditions in the mine because he had
been in good health before working there (Tr. 250-252).
Respondent's Evidence
William Hamby, James Appelberg, Frank Seale and Sharon
Badger testified for Cyprus.
William Hamby, the plant superintendent and metallurgist,
indicated that Cyprus was closing down its operation in September
1985. He did not expect to be employed at the end of 1985 (Tr.
253, 254, 296, 297).
Hamby and Atkins were in daily contact when Atkins began
working as an operator in the ADR in October 1981. Atkins had
successfully bid on the operator's job. As an ADR operator
Atkinsv duties included monitoring the pump, reagent mixing, and
reagent determinations for strength, advancing carbon and mixing
it (Tr. 256-261).
In February 1982, Cyprus learned of mercury problems in the
ADR. The mercury, which came as a surprise to Cyprus, was
detected by monitoring with a 3M 3600 Model badge type dosimeter
(Tr. 265, 266).
·In March 1982 Cyprus ordered and installed a 98,000 C.F.M.
fan in the ADR (Tr. 296).
When Atkins became safety representative he voiced his
concerns about the plant environment, the mercury and the quality
of the air. He also complained about ammonia CTr. 261). There
were four leaky pipes about the plant but, for the most part,
ammonia in the atmosphere occurred when an operator would leave a
hatch open. That would be the major source of the ammonia smell

466

(Tr. 262). When Atkins complained about the ammonia Hamby instructed them to keep it out of the atmosphere (Tr. 262). Prior
to March 1982 Cyprus was not certain what was "going on" in relation to the possibility of mercury being in the plant (Tr.
262) •
Hamby wasn't sure of the circumstances but Atkins told him
that he believed it was unsafe or hazardous to work in the ADR
(Tr. 262-263).
In April 1982 Atkins was promoted to working foreman.
The
position opened because Cyprus went to full production. Hamby,
Leveaux and three other working foremen thought he was best
qualified for the position (Tr. 263). Because of the direct line
between management and foreman it was suggested to Atkins that
he might want to relinquish his duties as safety representative
(Tr. 264).
Hamby denies that he ever threatened Atkins' job. Once he
told him he was shooting his mouth off. In a handwritten note,
dated April 23, 1982, he recorded that he told Atkins to keep
his opinions to himself about possible contamination· by mercury.
Further, some of the people were complaining that he didn't know
what he was talking about and it was upsetting them. Atkins replied that he would "cool it" (Tr. 282, 283; Ex. R4).
On April 27 Hamby, in a letter to plant personnel, sought to
bring all employees together with the plant hygienist and company
doctor to discuss mercury (Tr. 269; Ex. R7).
The company considered mercury to be a problem because of
the hazards associated with it. Before May 4 the company had
taken steps to discover the source of the mercury levels by using
a Bacharach MB-2 sniffer. On May 4, 1982, the new equipment was
not operating properly. It had been inoperative for a week CTr.
267-269).
On May 4 MSHA inspector Frank B. Seale inspected the ADR.
On that day he issued five citations. They allege Cyprus failed
to post warning signs concerning health hazards in the ADR;
atmospheric concentrations of mercury vapor exceeded the excursion limit for an eight hour TWA coupled with a failure to use
respiratory protection; failure to conduct fume surveys; failure
to use shielding during arc welding and failure to guard a chain
sprocket. The foregoing citations were subsequently abated by
Cyprus (Tr. 171-179; Ex. R9).
On the day of the inspection 3M badges were placed on
employees Herrera, White and Atkins. The 3M badges were analyzed.
The analysis indicated the three refinery workers had been
exposed to mercury fumes. The TWA rates for Herrera, Wh.ite and
Atkins were, respectively, .081, .084 and .168 (Mg/M3). Atkins'

467

dosimeter badge was 3.36 times the TLV. Further, it was twice
the TLV of the other two employees. Citation No. 2008502 was
issued by inspector Seale on July 20, 1982, for the exposure to
the mercury fumes to Herrera, White and Atkins that occurred on
May 4, 1982 (Tr. 171, 172, 189, 190; Ex. R9). The delay of over
three months was caused in part by the time required to analyze
the exposure (Tr. 171, 172, 189, 190; Ex. R9). On August 10,
1982, Citation 2008502 was terminated when it was found that the
TLV for mercury complied with the standard (Tr. 184; Ex. R27).
Witness Seale also testified generally converning the
meaning of the TLV and TWA for mercury (Tr. 164-167; Ex. R6).
Hamby and Atkins discussed the TLV's. Atkins was always
trying to convert the TLV's to parts per million. But there is
no relationship between the two (Tr. 282).
After the MSHA inspection Cyprus continued to test for
mercury by using 3M badges, sniffer equipment, as well as urine
and blood sampling. Hamby discussed rules and practices with
employees and instructed them to wear respirators (Tr. 268,
270-273, 285; Ex. RlO, Rll). The purpose was to address the
mercury problem and protect the employees (Tr. 272). On one
occasion Atkins was not wearing his respirator and Hamby advised
him of the company policy (Tr. 174, 273; Ex. Rll).
To alleviate the mercury problem Cyprus also hired
D'Appalonea, a mercury clean-up company. They used sulfur dust,
an industrial vacuum cleaner and sponges to clean-up the ADR in
June (Tr. 280; Ex. Rl2).
In June 1982 Cypru? also ordered a new ventilation system.
It was installed in the ADR in August 1982 (Tr. 296).
In a performance report of July 6, 1982, Hamby rated Atkins
unsatisfactory in hygiene, safety, housekeeping, willingness to
work, dependability, attendance and initiative (Tr. 275, 277; Ex.
Rl3).
Concerning attendance, it was company policy to advise an
employee when he had accrued six absences. After missing eight
days the employee receives a written warning stating that termination is possible on the tenth absence. Atkins was given a
written warning on July 8, 1982, for his eighth absence. Atkins
refused to sign the notice because of a disagreement over what
constituted an excused absence (Tr. 276; Ex. R22).
Atkins' doctor said he couldn't be exposed to chemicals so
he couldn't be placed back in the ADR (Tr. 289).

468

On July 15, 1982, Atkins refused to go into the ADR. He
wanted a doctor's approval to return to work (Tr. 263, 290). He
was terminated because he refused to work in the ADR CTr. 289,
290). Hamby claimed the ADR was a safe place to work (Tr. 289,
290).
James M. Appelberg, the supervisor of office services for
Cyprus, participated in the decision to fire Atkins (Tr. 299,
301) •
According to Appelberg, Atkins requested a transfer to
utility from ADR because mercury contamination and ammonia vapors
were causing him diminished sight in one eye, sinus and nose problems, as well as inflammation of the lungs (Tr. 301). They had
several conversations regarding the transfer. Dr. Badshah's note
indicated he should not work in a chemical environment (Tr. 301,
302, 312). Atkins was unwilling to take a cut in pay. An MSHA
representative recommended that Atkins be kept at his present
level of pay (Tr. 301-304).
Atkins worked on the utility crew for three days then he
went back to the ADR for a day shift. He returned to the ADR
because the Cyprus supervisor in Denver stated Atkins would have
to take an appropriate cut in pay if he remained on utility work
(Tr. 303). In the period of July 13th to July 15th Appelberg
expressed his opinion to Atkins that the ADR had not been
determined to be a hazardous place to work. Atkins concern was
to get himself out of the ADR because of the chemical vapors (Tr.
304, 305).
On July 15, Appelberg advised Atkins in a typed note that he
(Atkins) had been given a physical exam on June 10th by Dr.
Givens and approved to work in the ADR plant. The note further
stated that since he continued to refuse to do his assigned work
"you leave us no alternative but to terminate your employment"
(Tr. 305~ Ex. R24). Atkins' final options were to go on disability, NIC (Nevada Industrial Commission), or remain as ADR
plant foreman. Appelberg indicated it would not be a job related
illness (Tr. 304, 313, 316). Atkins replied something to the
effect of "OK, fire me 11 (Tr. 305).
At the time of the termination Atkins wrote on the termination notice that he would work in the ADR if the company doctor
would examine him and state in a letter that he was physically
able to work in the mill atmosphere (Tr. 305, 306; Ex. R24). In
his handwritten reply Atkins further referred to the letter of
June 30, 1982, and stated that his doctor (Badshah) had found
colon colitis and further found that chemicals were aggravating
his condition.
In additi'on, he could not stand the smell of
ami:nonia in the ADR. The ammonia smell and the mercury in the
plant had not been corrected (Ex. R24).

469

Appelberg replied that ~tkins had been cleared for work by a
company doctor five weeks before. Further, MSHA had abated the
citations in the ADR, so there was no proven health problem (Tr.
305, 306). Prior to the termination Appelberg had received a
note Cl July 1982) from Dr. Givens stating, in part, that he had
not advised Atkins to consult outside medical help. Further, he
told Atkins that the company would assume no financial obligation
for his self procured medical attention (Tr. 306; Ex. R20).
Dr. Givens, in a telephone conversation, told Appelberg that
he did not find that Atkins had been contaminated by mercury.
In addition, Atkins should be able to perform his duties as plant
working foreman (Tr. 307).
During conversations between July 1st and 15th Atkins
claimed he had miner's rights in that he would not have to take a
pay cut if he was transferred to utility. An MSHA representative
said the easiest approach was to transfer him to utility at his
current pay (Tr. 307, 308). According to Appelberg, Atkins
assertion of his miner's rights did not enter into the decision
to terminate him (Tr. 308).
Atkins was earning $11.97 an hour as a working foreman
compared with $9.33 as a utility worker (Tr. 309, 310).
Appelberg testified that Joseph Legace had worked in the ADR
for about two months. He filed a workmen's compensation claim
alleging mercury contamination. The claim was disallowed (Tr.
310) •
Sharon Badger, chief of benefit services for the State of
Nevada Industrial Insurance System, indicated the state agency
accepted Atkins' claim on September 17, 1982. On that day Atkins
was placed on temporary total disability that was back dated to
July 9, 1982. Atkins received travel benefits and, in addition,
he was paid $8,226.16 ($38.44 a day x 214 days). He was also
sent to Parnassus Heights Disability Consultants for a
comprehensive integrated workup by medical specialists. The
consultants were paid $6,753.23 for their services (Tr. 155-159).
The disability evaluation by the Parnassus Consultants
including psychological, neuropsychological and psychiatric
examinations, "revealed that the patient's clinical picture
warr~nted a diagnosis of Schizophrenia, Paranoid type.
This type
of illness is considered virtually independent of environmental
etiology and is, therefor, not industrial in origin." (Ex. R32).
Atkins status under temporary total disability was
terminated on the basis of the Parnassus report. NIC's last
payment was February 7, 1983 (Tr. 80-81, 153-159; Ex. R32).

470

For various reasons Atkins doubts the Parnassus diagnosis.
A portion of the medical examination was not completed. Specifically, the small bowel series was never performed by Parnassus.
Atkins felt he should have facts, not opinions (Tr. 131-138).
Atkins agrees he had some d.iff iculty expressing his medical
symptoms to the Parnassus doctors. But this difficulty occurred
because he had driven directly to San Francisco from Oregon (Tr.
139-141, 149).
Atkins lacks medical or related training but in his opinion
his symptoms had to be related to chemicals (Tr. 135, 143).
In the Parnassus report one of the physicians stated that
"although the vision became poor after employment, he had not
sought earlier consultation for this problem because of job
threats" (Tr. 146; Ex. R32, pg. 19). Atkins states he was
threatened by Hamby over a conversation concerning the manifold
inside the ADR. Hamby also told him to mind his own business and
to pickup his pay check (Tr. 146). Hamby stated he didn't like
the idea of Atkins talking to miners about mercury problems (Tr.
147).
On August 10, 1982, MSHA inspector Seale reinvestigated the
Cyprus plant. The investigation was caused by a letter dated
July 18, 1982, identified in the exhibit index as an "Atkins to
Fraser" letter. The letter refers to certain unhealthy
·
conditions in the ADR. Inspector Seale failed to find any
violative conditions. Specifically, he found that the alleged
hazards did not exist, or it did not present a condition of
imminent danger, or that it was not a violation of the Act or a
violation of a mandatory standard (Tr. 180-184; Ex. R26, R27).
Discussion
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 that (1) he
engaged in protected activity, and (2) the adverse action
complained of was motivated in any part by that activity.
Secretary on behalf of Pasula v. Consolidation Coal Co., 2 FMSBRC
2786, 2797-2800 (October 1980}, rev'd on other grounds sub nom.
Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir.
1981); Secretary on behalf of Robinette v. United Castle Coal
Co., 3 FMSHRC 803, 817-18 (April 1981). The operator may rebut
the prima facie case by showing either that no protected activity
occurred or that the adverse action was not in any part motivated
by protected activity.
If an operator cannot rebut the prima
facie case in this manner it nevertheless may defend affirmatively by proving that (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

471

operator bears the burden of proof with regard to the affirmative
defense. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1936-38
(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, 195-96 (6th Cir. 1983)1
Donovan v. Stafford Constr. Co., 732 F.2d 954, 958-59 (D.C. Cir.
1984)(specifically approving the Commission's Fasula-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., 462 U.S. 393, 397-403 (1983).
The vast majority of cases arising under Section 105(c) of
the Mine Act concern matters of safety. However, the Commission
applied the above legal analysis in Rosalie Edwards v. Aaron
Mining, Inc., 5 FMSHRC 2035 (1983), a case involving unsanitary
toilet facilities.
In his post-trial brief Atkins asserts that his request for
a transfer was a protected activity within the meaning of Section
10l(a)(7) of the Act; further, that he had a reasonable good
faith belief that the conditions in the ADR plant constituted a
threat to his safety or health; finally, that Cyprus' termination
of Atkins was motivated by Atkins' protected activity.
We will initially consider whether a request for a transfer
is a protected activity.
In this regard Atkins relies on Section
10l(a)(7) of the Act which provides as follows:
(7) Any mandatory health or safety standard promulgated
under this subsection shall prescribe the use of labels
or other appropriate forms of warning as are necessary
to insure that miners are apprised of all hazards to
which they are exposed, relevant symptoms and appropriate
emergency treatment, and proper conditions and precautions safe use or exposure. Where appropriate, such
mandatory standard shall also prescribe suitable protective equipment and control or technological procedures
to be used in connection with such hazards and shall provide for monitoring or measuring miner exposure at such
locations and intervals, and in such manner so as to
assure the maximum protection of miners. In addition,
where appropriate, any such mandatory standard shall prescribe the type and frequency of medical examinations or
other tests which shall be made available, by the
operator at his cost, to miners exposed to such hazards
in order to most effectively determine whether the health
of such miners is adversely affected by such exposure.
Where appropriate, the mandatory standard shall provide
that where a determination is made that a miner may

472

suffer material impairment of health or functional capacity by reason of exposure to the hazard covered by
such mandatory standard, that miner shall be removed from
such exposure and reassigned. Any miner transferred as a
result of such exposure shall continue to receive compensation for such work at no less than the regular rate
of pay for miners in the classification such miner held
immediately prior to his transfer. In the event of the
transfer of a miner pursuant to the preceding sentence,
increases in wages of the transferred miner shall be
based upon the new work classification. In the event
such medical examinations are in the nature of research,
as determined by the Secretary of Health, Education, and
Welfare, such examinations may be furnished at the expense of the Secretary of Health, Education and Welfare.
The results of examinations or tests made pursuant to
the preceding sentence shall be furnished only to the
Secretary or the Secretary of Health, Education, and
Welfare, and, at the request of the miner, to his designated physician.
Atkins• particularly relies on the underlined portion of
Section l0l(a)(7).
Atkins states there has not been any standard published
pursuant to Section 10l(a)(7). However, he argues that the only
applicable standard in this factual situation is the threshold
limit value (TLV) for mercury adopted in 1973 by the American
Conference of Governmental Industrial Hygienists as contained in
30 C.F.R. § 55.5-1 (now recodified at 30 C.F.R. 56.5001).
Atkins has misconstrued the scope of the Mine Act. By its
very terms under § 105(c) the miners particularly protected are
those miner 1 s that are the subject of medical evaluations and
potential transfer under a standard published pursuant to Section
101. There are no medical evaluations or potential transfers now
contemplated within the terms of the TLV for mercury, 30 C.F.R.
§ 56.5001. Accordingly, the above regulation cannot be held
applicable.
The Commission recently ruled that a miner may state a cause
of action under Section 105(c)(l) if he is the subject of medical
evaluations and potential transfers under such a standard
published by the Secretary. Goff v. Youghiogheny and Ohio Coal
Company, 7 FMSHRC 1776 (November 1985). But there was no
indication in the decision that the Commission intended to extend
the doctrine any further than to encompass those situations where
the Secretary specifically addressed, by his rulemaking
authority, the issues of medical evaluations and transfers.
Compare the Secretary's extensive standards at 30 C.F.R., Part 90
involving miners who have evidence of the development of pneumoconiosis as involved in Goff.

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Atkins' brief further asserts that the statutory right to a
transfer combined with his good faith reasonable belief that the
conditions in the ADR plant constituted a threat to his safety or
health. Atkins claims that he was suffering ill-effects to his
health due to mercury contamination in the ADR plant. This conclusion is urged on the basis of certain facts:
First, coworkers Legace and Bowers had been diagnosed as
having mercury poisoning in the Cyprus refinery. Further, Legace
had described his symptoms in detail to Atkins.
Secondly, Atkins' quantitative urinalysis, taken at Legace's
suggestion, revealed a level of 65 mcg/24 hours. Atkins was
alarmed because 0-20 mcg/24 hours is considered normal but 65 mcg
is still within the state's guidelines.
Thirdly, Atkins knew the atmospheric conditions in the ADR
violated the MSHA TLV standards for mercury. Atkins had been
with the MSHA inspectors when he monitored the mercury levels in
the ADR. Atkins had seen the mercury in the tanks. He also knew
the citations issued by Inspector Seale were not posted by
Cyprus, hence, he knew the company was not being candid with its
employees.
Fourth, Atkins' family doctor, Dr. Badshah, examined and
treated him for his headaches, sinus and breathing problems,
gastroenteropathy and spastic colon. Dr. Badshah told Atkins he
thought the health problems were related to exposure to mercury
vapor in the Cyprus mine. Dr. Badshah subsequently wrote a note
for the plant manager, Jim Leveaux. Atkins then based his
request for transfer to the utility crew on Dr. Badshah's advice.
Atkins 1 claim lacks merit. The first four incidents he
relies on occurred several months before he was terminated.
Specifically, the Legace/Bowers conversations took place in April
1982. The quantitative urinalysis was in the same month. The
TLV excursion for mercury was in May 1982. The Badshah medical
reports relate to previous alleged exposures.
Atkins certainly may have had a reasonable basis of concern
for his health. But the pivitol issue is whether he had a
reasonable good faith belief that the work he refused to do on
July 15, 1982, was hazardous to his health at or about that time.
Bush v. Union Carbide, 5 FMSHRC 993 (1983).
A careful study of the record causes me to conclude that no
credible evidence supports Atkins' reasonable belief that the ADR
was hazardous on or about July 15, 1982.

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On the contrary, Atkins' evidence establishes that the ADR
was safe. Particularly, Atkins indicated that corrective
measures were taken by Cyprus between May 4 and June 15. These
measures included fume surveys, mercury testing of the atmosphere, and the use of respirators {Tr. 223, 224). Further, after
the MSHA citations the company attempted to cleanup the plant
and, according to Atkins, Cyprus took care of the problem "to a
great degree" CTr. 65). In addition., on June 9, 1982, complete
blood and urine tests failed to confirm mercury poisioning {Tr.
202-204).
When he was asked about the conditions in the ADR on July
15, 1982, Atkins said that he "believed the levels were close to
acceptable." Further, the ADR "could have been perfectly safe at
that time" (Tr. 108, 109).
Finally, Dr. Badshah's note of July 9, 1982, written for
Atkins, addresses his physical coqditions. It does not establish
the conditions in the ADR at or about mid-July.
On his termination notice <Ex. C21, R24) Atkins wrote that
he would work in the ADR if the company doctor said he was physically able to work in the mill atmosphere. His stated reason was
that he could not stand the smell of ammonia.
In addition, he
asserts the ammonia and the mere {mercury) had not been corrected
(Ex. R24).
I do not find the statements concerning the mercury to be
credible. At the hearing, when speaking of Exhibit R24, Atkins
stated "[t]he mercury was not a problem" (Tr. 112, 113).
For the foregoing reasons Atkins refusal to work was not a
protected activity.
Cyprus at all times asserted that the ADR was a safe place
to work at or about July 15th. But, since Atkins was not engaged
in an activity protected by the Act, it is not necessary to examine respondent's evidence.
Briefs
Counsel have filed detailed briefs which have been most
helpful in analyzing the record and defining the issues. I have
reviewed and considered these excellent briefs, However, to the
extent they are inconsistent with this decision, they are rejected.
Conclusions of Law
Based on the entire record and the factual findings made in
the narrative portion of this decision, I enter the following
conclusions of law:
1.

The Commission has jurisdiction to decide this case.

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2. Respondent did not discriminate against complainant in
violation of Section 105Cc> of the Act.
ORDER
Based on the foregoing facts and conclusions of law, I enter
the following order:
The Complaint of discrimination filed herein is dismissed.

Law Judge
Distribution:
Mary Gray Holt, Esq., Jolles, Sokol & Bernstein, 721 Southwest
Oak Street, Portland, OR 97205
(Certified Mail)
John F. Murtha, Esq., Woodburn, Wedge, Blakey & Jeppsen, One East
First Street, Reno NV 89505
(Certified Mail)
/blc

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